One of the strategies that forward looking and proactive organizations use to protect people and the environment is the Precautionary Principle.
While there is no single or generally accepted definition of the Precautionary Principle the concept behind it can be traced back to German environmental law:
1972: Germany: Vorsongeprinzip (“Fore-caring principle”) enacted in the Federal emission Control Act
1982: UN Charter for Nature
1987: Ministerial Declaration of the Second International Conference on the Protection of the North Sea
1987: Single European Act
1992: Rio Declaration, principle 15
2000: Communication of the European Commission
Broadly speaking the principle is often used where there is the possibility of harm from making a certain decision and conclusive evidence is not yet available. This is a form of epistemic risk (lack of knowledge) which given enough time, knowledge, and resources is reducible.
However, the problem is that there may not be enough of those to buy down the risk in time, at an affordable cost, and with sufficient efficacy. And yet, a decision must still be made. In this case, it may be better to err on the side of caution.
Over the years this Precautionary Principle has become a fundamental aspect of many international treaties along with safety and environmental regulations including The Canadian Environmental Protection Act (CEPA) which states:
Precautionary principle: The government's actions to protect the environment and health are guided by the precautionary principle, which states that "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."
Why is this principle so important and why now?
Purpose of the Principle
In everyday language the Precautionary Principle is about being safe rather than sorry. In the case of environmental decision-making measures are often too slow and too late to effectively contend with risk which makes this principal of significant importance. Even more so now as organizations contend with climate change, biodiversity, green house gas, and other environmental risks.
The Precautionary Principle is a preventive measure against catastrophic or serious harm in the presence of significant uncertainty. If harm is “certain” then preventive measures commensurate with the level of risk is expected. However, in cases where significant harm is uncertain but possible preventive measures may still be required.
This approach is similar to risk management practices used in energy and oil & gas sectors when contending with high consequence low probability events. In this case the probability is known – it is just low. The guidance is to treat this risk as if it was certain to happen.
However, when the probability is unknown but not zero then what do you do? This is where the Precautionary Principle comes in.
While the application of the Precautionary Principle can be open to interpretation it is not intended to be a zero-risk approach to prohibit development. Instead, it is a matter of degree as an Australian court described in the following:
The type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty... The more significant and the more uncertain the threat, the greater the degree of precaution required.
Applying the Precautionary Principle is not as straightforward as many would like. To help with that the commission of the European communities in 2000 published a communication of the Precautionary Principle where they outline that measures based on the precautionary principle should be (among other things):
proportional to the chosen level of protection,
non-discriminatory in their application,
consistent with similar measures already taken,
based on an examination of the potential benefits and costs of action or lack of action (including, where appropriate and feasible, an economic cost/benefit analysis),
subject to review, in the light of new scientific data, and
capable of assigning responsibility for producing the scientific evidence necessary for a more comprehensive risk assessment
Proportionality means tailoring measures to the chosen level of protection. Risk can rarely be reduced to zero, but incomplete risk assessments may greatly reduce the range of options open to risk managers. A total ban may not be a proportional response to a potential risk in all cases. However, in certain cases, it is the sole possible response to a given risk.
Non-discriminatory means that comparable situations should not be treated differently, and that different situations should not be treated in the same way, unless there are objective grounds for doing so.
Consistency means that measures should be of comparable scope and nature to those already taken in equivalent areas in which all scientific data are available.
Examining costs and benefits entails comparing the overall cost to the Community of action and lack of action, in both the short and long term. This is not simply an economic cost-benefit analysis: its scope is much broader, and includes non-economic considerations, such as the efficacy of possible options and their acceptability to the public. In the conduct of such an examination, account should be taken of the general principle and the case law of the Court that the protection of health takes precedence over economic considerations.
Subject to review in the light of new scientific data, means measures based on the precautionary principle should be maintained so long as scientific information is incomplete or inconclusive, and the risk is still considered too high to be imposed on society, in view of chosen level of protection. Measures should be periodically reviewed in the light of scientific progress, and amended as necessary.
Assigning responsibility for producing scientific evidence is already a common consequence of these measures. Countries that impose a prior approval (marketing authorization) requirement on products that they deem dangerous a priori reverse the burden of proving injury, by treating them as dangerous unless and until businesses do the scientific work necessary to demonstrate that they are safe.
Application of the Principle
It is expected that the legal aspects of the Precautionary Principle will continue to be argued and debated in the courts in the foreseeable future. However, the adoption of the principle is still expected to increase across industries, sectors, and government specifically those contending with environmental risk.
Organizations will need to learn when and how to apply the Precautionary Principle to their decision-making. This will require organizations to:
Incorporate the Precautionary Principle in policy development
Integrate the Precautionary Principle with existing policies and programs
Operationalize the Precautionary Principle by defining clear and concise operational measures
Improve the effectiveness of using the Precautionary Principle through continuous learning and improvement.