By Arpit Agrawal :
The precautionary principle states that if there is risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection. When there is uncertainty regarding the impacts of an activity, the precautionary principle advocates action to anticipate and avert environmental harm.
Article 3 of the UN Framework Convention on Climate Change was just one in a long list of international agreements that contained the precautionary principle, making it one of the most popular legal concepts in international environmental law today. Whereas traditional regulatory practices are reactive, precautionary measures are preventive and pre-emptive. In its simplest form, the precautionary principle (also known as PP) provides that if there is a risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection.
Often available scientific evidence provides us cause for concern but does not give conclusive information. In such scenarios, risk assessment compels us to strike a balance between the need to protect health and environment on one hand and the foregone advantages of strict restrictions that may turn out to be unwarranted. It is in this context the role for precautionary principle (PP) emerges. While deciding the need and timing of the application of the PP, it is important to clearly understand the principle and its consequences.
Origin of the Precautionary Principle
In his address to the Parliamentary Earth Summit of the UN Conference on Environment and Development, the Dalai Lama of Tibet noted that “in the seventeenth century, [Tibetan leadership] began enacting decrees to protect the environment and so we may have been one of the first nations to [enforce] environmental regulations!” The Theravada scriptures of Buddhism provide the earliest written sources which could accommodate the concept of precaution. Theravada teaches not to commit harm, the Buddha urging his followers to refrain from ‘unwholesome action’ and monks prohibited from ‘injuring plants and seeds’.
Undeniably, the origin of the concept of precaution may well be found in the history of civilization. In the early stage of civilization, humans had a holistic attitude towards nature which was regarded with sacred veneration. Nature was revered as the provider of life and therefore exploitation of its generosity was considered unethical. Subsequently, nature’s mystery was unravelled by the teachings of monotheistic religions and corresponding developments in science. This elevated the status of humans above the environment. The regard to human life became primordial and gave humans the right to exploit nature without ethical limitation. The struggle to survive and protect human health led to the early use of the concept of precaution.
In the mid-1970s, West Germany’s legislature enacted a national environmental policy which provided for precautionary approach to environmental protection. Termed as Vorsorgeprinzip, the precautionary principle is considered to be the most important principle of German environmental policy.
Concept and Definition
The term ‘precautionary principle’ had its origin in the German word Vorsorgeprinzip. An alternative translation of this word would mean ‘foresight principle’ – which could have given an active and positive impression, as against the reactive and perhaps negative connotation attached with precaution. Though the principle had its roots in the German environmental policy, it has entered the centre-stage of the global environmental policy in the past two-and-half decades with several global environmental treaties invoking the PP for decision making. In simple terms, the PP conveys the common-sense based advice – to err on the side of caution. The principle intends to prevent harm to humans, environment, and eco-system at large. Before looking at some of the widely used definitions of the PP, it would be helpful to understand the context and rationale.
When the impacts of a particular activity – such as emission of hazardous substances – are not completely clear, the general presumption is to let the activities go ahead until the uncertainty is resolved completely. The PP counters such general presumptions. When there is uncertainty regarding the impacts of an activity, the PP advocates action to anticipate and avert environmental harm. Thus, the PP favours monitoring, preventing and/or mitigating uncertain potential threats.
There two widely referred definitions of the PP – the first one, The Rio Declaration (or Agenda 21) of 1992, states that:
“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation .”
This definition given primarily with environmental issues in focus is also extended to cover health issues. The second definition is based on 1998 Wingspread Statement on the Precautionary Principle and it states:
“…When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action. In this context the proponent of an activity, rather than the public, should bear the burden of proof.”
It is interesting to note the differences between the two definitions. The first one stresses on ‘serious or irreversible damage’, whereas the second one states that precaution is relevant to ‘harm’ in general. Thus the second definition is typical of the way in which the precautionary principle is used by environmental advocacy groups. Some of the other key features of the definition worth noting include:
Lack of full scientific certainty shall not be used as a reason for postponing: Though scientific uncertainty may not be used for any delay in action, this leaves scope for citing reasons such as poverty reduction priorities for postponing the actions.
Cost effective measures: Though scientific uncertainty about the likely impacts prevails, stress on cost-effectiveness compels assessment (however accurate they may be) of costs of proposed actions and compare it with possible alternatives.
Applied by states according to their capabilities: The capabilities of states, including economic and technical capabilities, could guide the final adoption of the precautionary principle.
It is worth noting the way the burden of proof is treated in these definitions. When an activity is likely to cause harm to the environment and/or humans, the conventional practice is that the opponents of the activity have to provide the proof of the harmful effects caused by the activity. The precautionary principle, on the other hand, shifts the burden of proof to the proponents of the activity – i.e., the proponents have to establish that the proposed activity will not cause any harm to the environment and/or human-beings. Further, it is also argued that since scientific uncertainty is inherent in the environmental problems for which the PP is typically applied, the decision making process based on the PP may become more inclusive, participatory and democratic.
Precautionary Principle in International Instruments
The precautionary principle appeared at the international level in the mid 1980s. The principle was first formally acknowledged internationally in the Preamble to the 1985 Vienna Convention for the Protection of the Ozone Layer, in which the Parties acknowledged the ‘precautionary measures’ which had already been undertaken at both the national and international levels in relation to the protection of the ozone layer. Building on this recognition, in 1987, the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer agreed to take ‘precautionary measures’ to control global emissions of ozone depleting substances and noted the ‘precautionary measures’ already undertaken at national and regional levels in relation to the emission of chlorofluorocarbons. The need for a ‘precautionary approach’ was also recognised in the sequence of conferences on the North Sea. In the Second North Sea Conference Ministerial Declaration (the London Declaration) in 1987, the principle was referred to three times:
“[I]n in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolutely clear scientific evidence;
…[B]y combining…approaches based on emission standards and environmental quality objectives, a more precautionary approach to dangerous substances will be established; [The parties] [t]herefore agree to…accept the principle of safeguarding the marine ecosystem of the North Sea by reduction polluting emissions of substances that are persistent, toxic and liable to bio accumulate at source by the use of the best available technology and other appropriate measures. This applies especially when there is reason to assume that certain damage or harmful effects on the living resources of the sea are likely to be caused by such substances, even where there is no scientific evidence to prove a causal link between emissions and effects (‘the principle of precautionary action’)”.
At the Third North Sea Conference in 1990, the participants agreed to: “continue to apply the Precautionary Principle, that is to take action to avoid potentially damaging impacts of substances that are persistent, toxic and liable to bio accumulate even where there is no scientific evidence to prove a causal link between emission and effects”. This process led to the inclusion of the precautionary principle in the Convention on the Protection of the Marine Environment of the North–East Atlantic (the OPSAR Convention) of 1992.
In 1990, the Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe Region was the first international instrument to treat the principle as one of general application and linked to sustainable development. The Declaration states:
“In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent, and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation”.
In 1991, the Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (the Bamako Convention), signed in Bamako on 29 January 1991, required parties to strive to adopt and implement:
“the preventative, precautionary approach to pollution problems which entails, inter alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm. The parties shall co-operate with each other in taking the appropriate measures to implement the precautionary principle to pollution prevention through the application of clean production methods” . In 1991, the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) resolved that “in order to achieve sustainable development, policies must be based on the precautionary principle”.
In 1992, the Parties to the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, agreed to be guided by:
“The precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand, and the potential transboundary impact on the other hand”.
The four instruments signed at the UNCED (the Earth Summit) in Rio de Janeiro also refer to the precautionary principle . The Rio Declaration states in Principle 15:
“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used a reason for postponing cost-effective measures to prevent environmental degradation”.
The Convention on Biological Diversity recites in the Preamble:
“Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat”.
Article 3(3) of the Framework Convention on Climate Change provides that:
“The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio- economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties” .
Agenda 21 refers to the precautionary principle in a number of contexts. For example, in relation to marine environmental protection, Chapter 17 calls for:
“A precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment. This requires, inter alia, the adoption of precautionary measures, environmental impact assessments, clean production techniques, recycling, waste audits and minimization, construction and/or improvement of sewage treatment facilities, quality management criteria for the proper handling of hazardous substances, and a comprehensive approach to damaging impacts from air, land and water”.
Most importantly, 1992 paved the way for the convergence of the precautionary principle and the climate change issue in international law. At Rio de Janeiro, the world acknowledged the precautionary principle at the level of international law when it adopted the United Nations Framework Convention on Climate Change. Article 3 of the Climate Change Convention partly provides that:
“The parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific research should not be used as a reason for postponing such measures, taking into account the policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.”
Precautionary Principle in Indian Law
The Indian courts have particularly embraced the precautionary principle.
In Vellore Citizens Welfare Forum v. Union of India, the petitioners filed a petition in the public interest under Article 32 of the Constitution of India, directed against the pollution caused by enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The Supreme Court of India noted that:
“though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard”. The Court recognised that a balance must be struck between the economy and the environment.
In M.C Mehta v. Kamal Nath, the Supreme Court of India affirmed the decision in Vellore Citizens’ Welfare Forum v Union on India upholding the precautionary principle as part of the environmental law of India.
The Supreme Court discussed the earlier decision in Vellore Citizens Welfare Forum v Union of India where it was held that the precautionary principle, and the shifting of the burden of proof onto the developer or industrialist who is proposing to alter the status quo, are part of the environmental law of the country. They found it “necessary to explain the meaning of the principles in more detail, so that courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them”.
The Court reviewed the development of the precautionary principle at international level, including reference to Principle 15 of the Rio Declaration. The Court identified inadequacies of science as the real basis that has led to the precautionary principle. The precautionary principle is “based on the theory that it is better to err on the side of caution and prevent environmental harm which may become irreversible”. It was observed:
“The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it, or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, prosperity and economic interest, but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger, but also by (justified) concern or risk potential”.
In Narmada Bachao Andolan v. Union of India, the Court was called upon to decide various legal questions arising from the Sardar Sarovar Project involving the construction of a dam on the Narmada River. An environmental clearance had been given for the project. At the time it was granted there was no obligation to obtain any statutory clearance and hence the environmental clearance granted was essentially administrative in character. Nevertheless, the environmental clearance was challenged. It was alleged the necessary particulars in regard to the environmental impact of the Project were not available when the environmental clearance was given and it therefore could not have been given. It was further alleged that the execution of the Project, having diverse and far reaching environmental impact, without proper study and understanding of the environmental impacts and without proper planning of mitigative measures, was a violation of fundamental rights of life of the affected people guaranteed under Article 21 of the Constitution of India. In the course of judgment, the majority noted the submission of the petitioners that “in cases pertaining to the environment, the onus of proof is on the person who wants to change the status quo and, therefore, it is for the respondents to satisfy the Court that there will be no environmental degradation”. The majority dealt with this argument of shifting of the burden of proof and the precautionary principle stating:
“It appears to us that the ‘precautionary principle’ and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology of environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can takeplace which can be sustained by nature/ecology with or without mitigation”.
Conclusion
It is clear that the law on sustainable development is gaining momentum at local, national, regional, and international levels. While the four fundamental elements of sustainable development – the precautionary principle, intergenerational and intra generational equity, the conservation of biological diversity and ecological integrity, and the internalisation of environmental costs – have been much discussed and promulgated in various international and national legal contexts, there is still a long way to go in terms of their implementation.
The role of the judiciary in relation to the law of sustainable development is thus of the greatest importance. As an offshoot of the judicial recognition the National Environmental Policy adopted precautionary principle as a guiding principle. However, it is still a long way to go before the PP takes its rightful place in Indian environmental laws and even more importantly gets effectively implemented.