ParisTech Review / Editors / 2014-10-22
The precautionary principle is frequently cited in major international statements. However, implementing it still stirs up a lot of debate: is it feasible, is it advisable? Today with hindsight, controversy and experience have enabled us to better frame a somewhat abstract idea that is still seeking its path forward. Two countries only, France and Ecuador have appended the principle to their respective Constitutions and in the former we see some emblematic examples of difficulties to be overcome in enforcing the Principle.
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The Precautionary Principle was devised and developed at the end of the 1960s, firstly in a 1969 Swedish law referring to environmental protection, followed by Germany and its “Vorsorgeprinzip.” Formulation of the Principle, modulating as it does between innovation and protection, has never been fully stabilized.
Annex 1 of the Rio Declaration on Environment and Development (1992) adopts an open stance and affirms in its Principle 15 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.” The Final Declaration of the first European conference on “Endangered Seas” (1994) is far more demanding, quote “If, for a given activity, the worst-case scenario is sufficiently threatening, then even a small degree of doubt will suffice to justify its being postponed.”
The French experience
France took the decision, in 2005, to append the Principle to its Constitution, heading a list of applicable standards. This very decision was and remains controversial. Elsewhere in the World, only Ecuador went this far. In many other countries, policy-makers are awaiting the first ten-year status report on the effects of constitutionalizing the precautionary principle. This principle is written into Article 5 of the “Environment Charter” placed as a preamble to the main Constitutional text, worded as follows: “when there is a risk of damage, however uncertain given the latest state of scientific knowledge, of serious and irreversible impact on the environment, public authorities, applying the precautionary principle, will assure, in their respective areas of competence, that the procedures to assess risk and adopt provisional and proportionate measures to counter possible damage are duly applied and enforced.”
Since 2005, several court proceedings in France invoked the precautionary principle. For example, in March 2009, the Angers High Court placed an interdict order on the mobile phone operator Orange, thus preventing installation of relay antennae on the church spire at Notre-Dame d’Alen?on. In handing down his sentence, the judge explained that “given the uncertainties surrounding the technical characteristics of the installation, and the recognized risks of impacts on public health should the existing emission level standard be exceeded, and given the uncertainties in regard to guarantees about protecting the nearby sensitive structure, viz., the primary school house, the precautionary principle leads us to ordering an interdict on this project, which order constitutes an effective and proportionate measure to prevent risk of serious and irreversible damage to the environment at an acceptable economic cost”. In January 2014, however, a French member of Parliament proposed to abandon the precautionary principle, per se, replacing the notion by “sobriety” in the case of exposure to mobile phones, wifi stations and relay antennae radiation.
The debate is still raging. For the promoters of the precautionary principle, the latter is a universal and international principle that translates our sense of belonging to an interdependent ecosystem, where the fate of Humanity is tied to the results of human activities. It is also a pragmatic principle inasmuch as it takes into account the power acquired by science and technology today, plus the difficulty to forecast impact and the time delay between the speed at which damage can occur and the time needed to repair its effects. Moreover, it also enables methodological doubt to be applied to the issue. But above all other considerations, it is an action principle that promotes the need for research to solve crises and in no way a principle of abstention that demands proof of innocuousness as a prior step to any authorization.
The fact that the French law-makers decided to append the principle to the country’s Constitution – at a time when several sanitary scandals had hit the headlines (HIV contaminated blood, mad-cow disease, growth hormones) – corresponded to the need to distinguish between two possible situations: real risks (with known probability such as cancer linked to tobacco) that call for preventive measures and uncertain situations (impossible to measure the probability) that call for precaution such as measures taken to stop imports of British cow meat in 1996 following the BSE (bovine spongiform encephalopathy) epidemic better known as “mad-cow” disease.
Appending the precautionary principle to the Constitution conferred a strong legal value, i.e., it can be used in court but also, following the legal principle in France that “no one can ignore law” can become a commonly accepted text to which policy-makers can refer spontaneously.
This alone is a non-negligible challenge, as it was reported in 2013 by the European Environment Agency: “Warnings were ignored or set aside until the point was reached that damage to health and the environment became inevitable”. “This was the case”, says the EEA, “for industrial mercury poisoning, drops in human fertility due to use of pesticides, impact of endocrinal disturbance agents in plastics and eco-systems modified by pharmaceutical compounds.”
Economic aspects
The European Environment Agency is also concerned by the economic aspects. “In certain cases, says EEA, companies have privileged short-term profit, thereby neglecting public safety, hiding or ignoring the existence of potential risk factors. In other cases, scientists have minimized the risks, sometimes faced with the pressure from groups defending vested interest [lobbies].”
On the other hand, a strict implementation of the principle may have some economic and social costs. Whatever one’s point of view, enforcing the precautionary principle raises the question of whether the text should be seen as applicable not only to a society but to a country’s economy. And this is where matter get complicated, given that national economies today are tied to a vast system of exchanges with confrontations of very different legal systems in each country.
France is a Member State in the European Union but the almost 30 Member States have not harmonized how the precautionary principle could/should be applied. Depending on the country, the principle may only represent a political reference, a jurisprudence text, a legal disposition or a text carrying constitutional value.
Yet the principle of precaution was inscribed in Art.174 of the 1992 Treaty of Maastricht. It authorized States to invoke higher interest of the environment and health to derogate from EC law in terms of, e.g., free circulation of goods.
In reverse, the World Trade Organization has manifested a degree of defiance to the precautionary principle. WTO agrees that a State may wish to take precautionary/preventive measures when faced with a risk that has not yet been scientifically proven, but “shall endeavour to clearly identify the scientific rigor with which the risk assessment was conducted”. The USA have seized the WTO on several occasions regarding the stance taken by certain European States in the area of GMOs, in particular pursuant to the moratorium decided by several European States, including France, about the use of the hybrid GM corn variety MON810 marketed by Monsanto as of 2011. This matter will one of the numerous points of discussion in the drafting of the free-exchange agreement between the USA and the EU. In like manner, in the conflict opposing the USA and the EC in regard to the Directive dated April 29 1996 placing an interdict on administration of growth hormones to animal farm stock. The WTO Panel made two decisions August 18, 1997 and one in Appeal Court, February 13, 1998 in which it was deemed that the European Community could not reasonably invoke the precautionary principle to justify restricting commercial trade exchanges. Such restrictions, explained the WTO, can only be applied when there is a proven risk and not just a scientific conjecture or speculation;
The caution expressed by WTO points to the potential serious economic consequences of increased application of the precautionary principle. In so doing the Geneva based institution is perfectly within its rights (protecting access to open trade exchange) and clearly raised the question of arbitration or at least adjustments where necessary between the two dimensions of public well-being: public health at large and economic activities. It is patent that a maximalist use of the precautionary principle would have economic consequences.
A case in point, often cited, is that of Denmark, where the local authorities panicked in February 2000, placing a total interdict on imports of cow meat (the Danish Government fearing a new outbreak of BSE when only a single case was reported). Obviously, the reaction here was disproportionate.
The tenets of the precautionary principle have learned their lesson and the idea of a degree of proportionality in terms of results has been brought to the fore. Nonetheless, it is a difficult issue and we often see decisions that lead to rife debate.
To exemplify this point, the local authority in the Gironde Department placed an interdict on oysters and mussels from the nearby Bay of Arcachon, justifying this administrative decision via the precautionary principle. Oyster farmers, supported by local politicians, contested what they saw as an unfounded decision and application of the principle, taken with “no discernment.” Their argument singled out the oyster disease test and deplored the economic and thoughtless impact on the oyster market outlets and farmer’s income.
The question is, how must one arbitrate between the possibility – even if it is not real and attested – that serious sanitary problems can arise and the economic viability of a local employment sector (oyster-culture)? Do the decision makers – judges or local authority service heads – have the skills and even the legitimacy to make such decisions and arbitration?
This economic aspect has brought up one of the central questions of enforcing the precautionary principle: if, on one hand, it is acceptable to invoke the principle in a public debate on future challenges and issues, it is difficult, on the other hand, to base an uncontested legal or administrative decision on the same grounds.
Paradoxes and contradictions
Economics is only part of the story. Gradually, as the precautionary principle came to be seen as a standard, new and violent forms of controversy arose in regard to the impact the principle might have on scientific research. The fear the scientists aired was that enforcing the principle would simply bring certain forms of research to a halt (stopping future economic development) inasmuch as the principle called for a proof of zero risk.
Emeritus Professor Michel Prieur, University of Limoges, finds exactly the opposite, as he puts it “the precautionary principle stimulates scientific research in order to reduce the degree of uncertainty. Of course, the principle per se calls for a reversal of the onus of proof. It is up to the person requesting authorization to prove that his intended action/activity will not have unknown consequences on the environment. However, reversing the onus of proof does not at all imply that he applicant has to prove absence of risk; there is an explicit invitation that enterprise adopts a responsible attitude with respect to non-intentional and cumulative effects that arise through use of the innovation they would like to operate/use.”
The opponents to the precautionary principle assert that the principle runs counter to the interests of science, research and innovation, and hence slow down economic growth, discouraging enterprise and universities form engaging in research in certain areas, in short encouraging them to apply self-censorship and stymie their plans. If one were only to apply the precautionary principle to the principle itself, the latter would auto-destroy itself. Adversaries are legion, including in France where the Academy of Sciences issued a negative advice note early on. The Academy recommended “that the precautionary principle should not be attached or included in constitutional texts or in the high level ‘organic laws’, to the extent that doing so could induce a deleterious effect with disastrous consequences for future progress of well-being, health and our environment”.
To justify this stance, the partisans of a more sceptical approach to the principle evoke the case in point of the insecticide DDT (Dichloro Diphenyl Trichloroethane) to demonstrate that applying the precautionary principle can have dramatic consequences. In 1948, the Swiss born chemist Paul Hermann Müller was awarded the Nobel Prize in Medicine for his discovery of the high level efficiency of DDT (synthesized some 70 years earlier) as an pesticide. A dozen years later, DDT was considered to be THE reference product to fight malaria and was seen as the agent that helped eradicate this disease from developed countries (and control it elsewhere). In the USA, the National Academy of Sciences assessed that over two decades DDT had saved the lives of 500 M persons round the world from dying of malaria.
But in 1962, DDT was accused of making certain bird species suffer (they lost their basic mosquito food to DDT spray operations) and became a target for ecologist movements. FDDT was gradually prohibited in developed countries as of the 1970s. The WHO (World Health Organization) moved away from DDT spray campaigns in its efforts to control malaria outbreaks. The consequences have been serious, to say the least. In India, recent studies recall that DDT had made malaria drop significantly from 100 M cases /yr. to 100 000/yr. in 1965. Following the DDT interdict, the number of cases rose to 6M in 1976. Faced with malaria, the use of DDT inside homes was again recommended by the WHO in 2006. The Organization recommended that substitute compounds be found as of 2020. However, just as was the case for the judiciary at Arcachon, the choices ahead will be difficult, almost impossible.
It was these contradictions that came forward in France when the precautionary principle was evoked in stormy debates after the law of July 23th, 2011 placed an interdict on exploration and operation of shale gas/oil. This provided a stage for opposing stances, with a certain level of subtlety, not to say of contradictions. The partisans of shale gas have listed the consequences of the interdict: in the USA the cost of primary gas as an energy source has dropped sharply with the introduction of shale gas to the residential networks; the energy operators are now closing down coal burning power stations, replacing the units with gas burning plant. Coal is now looking for new market outlets and is coming over massively to Europe, where gas is still more expensive than coal. In the near future, we shall see coal replacing gas as the energy source, knowing that a coal burning station produces twice as much CO2/kWh.
Partisans of shale gas exploitation have questioned the legality of the law before the Constitutional Supreme Court. Their case and plea were rejected. In October 2013, the French Conseil Constitutionnel (Supreme Court) validated the law, ruling that “the interdict to carry out exploration drilling wells followed by hydraulic rock fracturing to seek and exploit hydrocarbon fuels in France is a general and absolute principle; the law effectively blocks research not only in the development of classic hydrocarbon fuel exploitation with the process; the law-makers rightfully pursued the overarching objective of protecting the environment”. Court added that “the grievance aired by the objectors to violation of the precautionary principle has no effect since the law-makers based their decision and vote on the principle of prevention.”
Between ‘catastrophism’ and the principle of innovation
Criticism levelled at the precautionary principle also came from candid defenders of the environment. While some experts accuse the principle of immobilizing scientific thought and research, others paradoxically accuse the principle of inducing half measures. Professor Jean-Pierre Dupuy, University of Stanford, California and Ecole Polytechnique accuse the precautionary principle not for blocking technological developments but rather making everyone powerless when a catastrophe occurs as a result of the development – in short, the promises are not upheld.
As Dupuy sees it, “is a form of instrumental rationality, technicalities and economic calculations, given that the base is a probabilistic analysis of risks, whereas the reasonable thing to do is to foresee a catastrophic event.” To replace the precautionary principle, Dupuy advocates another approach “enlightened catastrophism”: think about catastrophes today to completely avoid them tomorrow. “The reasoned and accountable serenity of risk managers would tie well with that extraordinary capacity Men have to be resigned when unacceptable events occur, and it is this resignation that is the major stumbling block to defining a carefulness adapted to our times.”
We could of course argue with Prof. Dupuy that the precautionary principle is somewhat removed from a probabilistic approach, such as is used in risk management. It deals with uncertainty, i.e., with the possibility that a catastrophe could occur. But the precautionary principle does not stop there. It constitutes an encouragement to clear the route of its uncertainties. It stands mid-way, so to speak, between catastrophism and the so-called “risk management” which does not always match the stakes of the issues as they may happen.
In this light, a rigorous application of the precautionary principle leads to encouragement of research, so as to remove the elements of uncertainty and move back into what is measurable, debatable and can be discussed in its own rights: risk itself.
The precautionary principle here points to further scientific progress and to development of techniques rather than seeing us bathe in gloom and nostalgia. Its aim is not to immobilize all Mankind but to induce a smooth, reasoned changeover from precaution to prevention, thanks to new research.
A good example here for this ‘progressive’ conception of the precautionary principle can be the thorny topic of climate change. A catastrophic approach or blind enforcement of the precautionary principle would cause the planet to go into a downturn of the economies. Obviously nobody today seriously defends such an approach. An intelligent application on the contrary will incite us to open up every possible line of research to throw light on possible futures and to provide for the means to understand and prevent then more serious aspects from impacting us. This goes from green techs to research into the factors of behavioural change so that Mankind moves to adopting more sustainable ways of life.
Framed and conceived in this way, the precautionary principle has the challenging role to open the scope of possible futures. This does not entail being fearful about the most ominous possibilities ahead, but it will serve to mobilize our energies to innovate, again and again. This calls for a proactive stance and for us to embrace a brave new vision of the world today and ahead.
Michel Callon, Yannick Barthe and Pierre Lascoumes who co-authored a reference text-book (Agir dans un monde incertain. Essai sur la démocratie technique [Acting in an uncertain world/ An essay on technical democracy] go even further in their analysis and recommendations. They defend the idea of “open air” research, associating civilians with scientists – to both enrich and enhance the diagnosis and to better identify solutions that are more inventive. Others may prefer protecting scientific investigations from interference stemming from public debate. Both stances are defendable. But the key point they make is that the precautionary principle, in fact goes hand in hand with the principle of innovation.
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