EEB Position on the Precautionary Principle
In his speech to the European Parliament from 5th of October 1999, European Commission President Romano Prodi announced that a Commission paper on the precautionary principle may be expected by the end of 1999.
The discussion on the application of the precautionary principle has received new momentum as the result of several recent highly contentious policy issues, such as the BSE-crisis, Belgian dioxin in chicken, genetically modified foods and phthalates in baby toys. Its interpretation has wider ramifications for EU chemicals, water and waste policy, as well as for international trade issues.
The Precautionary Principle was introduced into the EU Treaty in 1992, but not defined there (Schuette 1996).
Nevertheless much early environmental legislation, especially in the field of water protection, has been based upon a precautionary approach The EEB believes the principles set forth in these early Directives can form the basis for the Commissions interpretation of the precautionary principle, particularly as they have repeatedly been supported by the case-law of the European Court of Justice.
The EEB notes considerable pressure both from within the Commission and from EU and foreign economic stakeholders to attach cost-benefit qualifications to the principle. A formal Cost-Benefit analysis is in contradiction with the precautionary principle, since it assumes certainty where by definition certainty does not exist. We are not opposed to economic assessment, but a cost-benefit analysis would render the principle less effective in future. .
This paper has been discussed mainly by the EEB chemicals working group. While representing an official EEB position for the time being it must be considered as work in progress.
2. Essential Elements of Precaution
2.1 The Precautionary Principle justifies early action to prevent harm and an unacceptable impact to the environment and human health in the face of scientific uncertainty.
The precautionary principle justifies early action in the case of uncertainty and ignorance in order to prevent potential harm. There are different possibilities to characterise different types of uncertainty (Hunt 1999; Stirling 1999). One can distinguish between risk, uncertainty, ignorance and indeterminacy.
A wide definition of the precautionary principle should not omit any of these dimensions of uncertainty. The EEB believes that provisions are also necessary to act in the case of ignorance and indeterminacy.
2.2 Precaution places the burden of proof on the proponents of the activity.
The reversal of the burden of proof is a fundamental principle of precautionary action. The reversal of burden of proof creates incentives for the proponents of an activity to prove that their product or activity is safe. The traditional burden of proof, which lies with legislators, may cause considerable delays before action is initiated. Furthermore, in the case of « uncertainty » the traditional burden of proof may not work. Yet failure to act may in some cases impose considerable costs upon society and health as has been pointed out by the European Environment Agency (see : EEA 2000).
2.3 Precaution applies the substitution principle, seeking safer alternatives to potentially harmful activities, including the assessment of needs.
Where safer alternatives are available or may be marketed in the forthcoming future, these should be promoted as a substitute to the activity giving rise to « reasonable suspicion ». The substitution principle allows for technology driven changes (best environmental option) instead of waiting for the proof of harm. The principle should be applied in a wide sense including the consideration of alternative products or services to serve the same function in addition to alternative materials for the same product - a principle whose usefulness has already been recognised in the Communitys biocides Directive, and by a number of environmentally advanced Member States. (Greenpeace 1999).
2.4 Precaution requires public participation in decision-making.
Risk perception has a cultural dimension. There is a considerable degree of subjectivism in choosing for a risk averse or a risk friendly approach, different within and between different societies. Decisions on the acceptability of technologies and activities, as well as on the intensity of their control cannot be defined by « sound science » alone, but requires a mechanism to identify the preferences of the society. Therefore, accountable, transparent public and democratic decision-making within the Community institutions is a prerequisite to intelligent decision-making that will serve all the citizens of the EU according to the principles set out in the Treaty.
3. Critique of misleading approaches
The EEB notes that several misleading definitions of the principle are being discussed, which eventually might undermine the precautionary principle. The following chapter identifies some of these and discusses some of the major problems associated with them.
3.1 Precaution as a preliminary measure
Many actors on the international stage consider the precautionary principle justified on the ground that full scientific certainty is not available yet. Thus, they presume that it is only a matter of time until such certainty can be reached. This means that the precautionary principle is accepted only as a temporary measure.
This approach is too narrow. Uncertainty may not only be preliminary but systemic. There are areas where even time may not allow for full certainty ever.
The EEB supports the idea of the revision of precautionary measures in the light of new evidence but regular review is something different to preliminary measures. Naturally regular review also applies in cases when the decision not to act has been taken.
3.2 Precaution only if potential damage is serious or irreversible
As is already laid down in various international conventions, the precautionary principle is often restricted to damages or effects that are considered serious or irreversible.
This qualification cannot be accepted. In some cases, the extent and seriousness of damage is uncertain, especially in a long-term perspective. The precautionary principle therefore has to apply to all cases of uncertainty based on the probability of occurrence and the extent and seriousness of damage.
3.3 Precaution only on sufficient grounds for assuming a causal link between an activity and damage
Some stakeholders ask for "sufficient grounds", requiring "sufficient body of evidence" for damage as a precondition for action. They ask also for a "significant threshold of plausibility and gravity".
This threshold is incompatible with the principles design for situations where such information is not available or uncertain. Asking for a "sufficient body of evidence" for harm imposes the burden of proof on regulators and, by extension, on society as a whole.
The EEB believes, that "reasonable suspicion" is a sufficient threshold to trigger action. Therefore the EEB also does not accept that Risk Assessment might become the "filter" before precautionary action may be triggered. Risk Assessment has been proved to be a cumbersome, bureaucratic approach in chemicals policy leading to considerable delays in action and hence not being in line with precaution.
3.4 Precaution based on cost-benefit analysis
Cost Benefit Analysis is no appropriate methodology to manage uncertainty. A cost-benefit analysis can only be applied as a tool to identify the efficient level of environmental protection if there is full knowledge of the cost of the damage that is to be prevented. It is not the precautionary principle but the prevention principle which applies to such cases (De Sadeleer 1999). . It must be kept in mind that precautionary action is not based on demonstrated actual risk, but very often on anticipated risks that are considered plausible.
The EEB does not reject economic assessment. Once the environmental goal is set, a Cost-Effectiveness Analysis may help to identify the least-cost options of precautionary action, benefiting all actors involved.
In general the precautionary principle rather requires qualitative approaches as well as a wider public discussion on what is acceptable.
3.5 Precaution must be based on proportionality
In line with a demand for a cost-benefit analysis, it is widely argued that any precautionary measure taken must be proportionate to the benefits to be achieved by it. The EEB accepts that proportionality must be considered, but this itself should be based upon a precautionary approach. One way to implement such an approach would be to make worst case assumptions on social and environmental impacts in cases where uncertainty or ignorance prevail.
3.6 Precaution subject to scrutiny concerning its restriction of freedom of EU entities
Freedom of market players must always be linked to social responsibility. The Amsterdam Treaty allows Member States under certain conditions to protect the environment and human health even if this might impede free trade (Art. 95). The EEB has in various statements insisted upon a flexible and non-restrictive interpretation of this safeguard clause.
3.7 Restrictions of the substitution principle
Some industrial stakeholders only accept substitution of an activity or product if a wide range of conditions are met, such as:
The substitute has a comparable function or effectiveness;
- Risk assessment and risk benefit analyses are performed and compared for the original activity;
- As above, for a product and the alternative proposed (Adequate and comparative documentary evidence should always be provided);
- The economic impact is proportionate to the environmental benefit;
- The substitute is already available on the market;
- The substitute is not likely to cause an equally or more burdensome effect on health, safety or environment;
- A comparative life-cycle analysis has been made, taking into account functions and circumstances surrounding the activities and/or products.
The EEB is concerned that such a formalised set of approval conditions would undermine innovation and the promotion of substitution. On the other hand, it is evident, that some evidence must exist that substitutes are less harmful than the potentially hazardous activities being replaced. The precautionary principle should also apply to substitutes in order to avoid simply shifting problems. The conditions for potentially hazardous activities and their substitutes must be set on an equal footing.
4. Conclusions : Prevention of Harm not Zero Risk
The application of precaution will not necessarily lead to « zero risk ». However, the EEB insists on an open and transparent procedure to identify the best options to avoid potential harm.
The preparatory process for the Commission Paper on the Precautionary Principle has been intransparent and non-participatory. Stakeholders were not officially consulted and not informed. Therefore the EEB expects the Commission to allow for wider public discussion at earliest possible stage.
The precautionary principle allows early action under the conditions of scientific uncertainty and ignorance. It draws lessons from the past, that late action may cause greater burdens for society than early proportionate measures based upon reasonable suspicion. Its use therefore should be encouraged and not restricted.
Boye, Mette/Ege, Christian : EU Environmental Policy. Can free Trade and enviornment go together ? EEB publication, August 1999
Bro-Rasmussen, Finn : Precautionary Principle and /or Risk Assessment A Peitence in Conemporary Political Culture, in ESPR 6(4) 188 192 (1999)
EEA : Late Lesson from Early Warnings, The Precautionary Principle, 1898 1998, Copenhagen, forthcoming, Spring 2000
EEB : Economic Evaluation Methods of Environmental Measures, Seminar Reader, December 1998
EEB : Comments on the Comission Communication on Internal Market and the Environment, June 1999
De Sadeleer, Nicolas : General Introduction to the Pricniple of Environmental Law and in Particular the Precautionary Pirnciple, Paper for the ELNI Conference on the Precautionary Principle, Ghent, November 1999
Greenpeace (Santillo, David, Johnston Paul, Singhofen, Axel) : The way forward> : An Alternative, Precautionary Approach to the Regulation of the Manufacturing, Marketing and Use of Chemicals in Europe, February 1999
Hunt, J.: Constructing precaution: from incorporation to deliberation. Lancaster 1999.
Schwarzenberger, Astrid : Theoretical Concepts of the Precautionary Principle, Discussion Paper for the EEB, Augsut 1999
Schütte, Peter : Das Vorsorgeprincip im europäischen Gemeinschaftsrecht und dessen Anwendung in der politischen Praxis, EEB, 1999
Stirling, A. et al.: On science and precaution in the management of technological risk. Sussex 1999,
Tickner, Joel : A Map Towards Precauitonary Decision-Making, in : Raffensperger, C and J. Tickner eds (forhtcoming : Protecting Public Health and the Environment : Implementing the Precautionary Principle. Washington D.C : Island Press