The Precautionary Principle has become a major principle in international environmental policies. The principle comes from the German world Vorsorgeprinzip, which means “foresight principle” (Kriebel 2001). In the early 1970s, the German government begin an air pollution control concept from which the word Vorsorgeprinzip was derived. The precautionary idea of Vorsopgeprinzip “has been described as an ‘action principle’ that holds public authorities responsible for protecting the natural foundations of life and preserving the physical world for the present and future generations” (LaFranchi 2005). Also, the Precautionary Principle “internationally ….is viewed as shifting the burden of proof from those who would challenge an offending activity to those who wish to commence or continue an activity” (Salzman and Thompson 2003).
This principle has been seen in numerous international treaties, binding and non- binding. Some of the non-binding treaties are: The Houston Economic Summit Declaration, written after the 1990 G-7 summit and the Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe. Both of these treaties well apposing the same principle comes from two different approaches. The Houston Declaration emphasis environmental protection by its statement “anticipate, prevent and attack the causes of environmental degradation” (cited in LaFranchi), whereas the Bergen Declaration expanded the precautionary principle by not just focusing on “irreversible damage” as the main indicator for the application of the principle but also that “serious damage” should warrant application (cited in LaFranchi). The Bergen Declaration also was a forerunner for the Rio Declaration on Environment and Development written in 1992 and was adopted by the United Nations Conference on Environment and Development. Principle 15 from the Rio Declaration states: “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 measure to prevent environmental degradation” (cited in LaFranchi). The binding treaties, such as the United Nation’s Framework Contention on Climate Change and Convention on Biological Diversity. The preamble to the Convention on Biological Diversity makes reference to the precautionary principle, “noting also that where there is a threat of significant reduction of loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measure to avoid or minimize such a threat” (cited in LaFranchi). Yet the United States has not ratified the Convention on Biological Diversity or the Basel Convention on the Control of Tran boundary Movements of Hazardous Wastes and Their Disposal, the Convention on Environmental Impact Assessment in a Tran boundary Context, and the Kyoto Protocol to the Framework on Climate Change (Kormos 2001). This resistance can be explained by “tradition of isolationist foreign policy and a corresponding lack of enthusiasm for international instruments that might subject the United States to an international rule of law” (Kormos).
The first case of Leatch v. National Parks and Wildlife Service took place in New South Wales Australia where the council wanted to build a road to connect two developing communities. To do so, the council had to obtain a license to take or kill endangered fauna in or around the Bombaderry Creek as per the National Parks and Wildlife Act (LaFranchi). In the National Parks and Wildlife Act, the council was required to summit a Fauna Impact Statement to “help determine the extent to which proposed actions will harm and affect local wildlife” (LaFranchi). The overall reason for the trial was to determine how much the Director-General must use the Precautionary Principle when judging Fauna Impact Statement and Take Kill License. The ruling judge in this case, Judge Stein, wrote,
Application of the precautionary principle appears to me to be most apt in a situation of scarcity of scientific knowledge of species population, habitat and impacts…In this situation I am left in doubt as to the population, habitat and behavioral patters of the giant burrowing frog and am unable to conclude with any degree of certainty that a license…should be granted (Leatch v. National Parks and Wildlife Services 1993).
According to Judge Stein’s statement, the precautionary principle should be applied to situations such as these as another method to determine the proper course of action. Thus in this case the precautionary principle overruled the economic benefits of the road.
Another international case took place in the nation of India where public interest lawyer M.C. Mehta sued the government of India for unhealthy levels of air pollutants in Delhi. Even though the case took years to resolve, the Supreme Court in India “issued a series of orders resulting in several air pollution improvements, including the introduction of unleaded gasoline, catalytic converters, and low-sulfur diesel fuel.”(LaFranchi). Also, all the buses in the city had to convert to natural gas. The court in this case relied on the national constitution which states “The State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country”(cited in LaFranchi). And by the state not obeying the Constitution it held fault in this case. In addition to the constitution, the precautionary principle played a key role from Vellore Citizens’ Welfare Forum v. Union of India where a working definition of the precautionary principle was “[w]here there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”(cited in LaFranchi). The court also ruled in Mehta that the level of air pollution “leads to considerable levels of morality and morbidity” (cited in LaFranchi). And thus the precautionary principle should apply to Delhi air pollution control policy and the court-issued fines against the government for its “ongoing violation of its constitutional obligation to protect the environment and health of the Indian people”(LaFranchi).
In an American court Ethyl v. EPA, the question was whether or not the EPA had the right under the Clean Air act to regulate lead in gasoline. The Clean Air Act is an example of Precautionary Principle “incorporated into U.S. environmental legislation”(Goldstein and Carruth 2005). The Clean Air Act authorizes the EPA to regulate gas additives that “will endanger” public health (Salzman and Thompson 2003). Lead at the time was a gas additive and studies suggested that lead presented a serious health risk but none of the studies were inconclusive (Salzman and Thompson). However the DC circuit judge upheld the EPA authority and, emphasizing precautionary environmental legislation. The court suggested that an appropriate standard of proof might depend on the potential severity of harm; for example, very serious harm may call for a lower standard of proof (Salzman and Thompson).
Also, like in the Indian case which relied on the nation’s constitution, a few states adopted provisions for the environment into their constitutions in the 1970’s. In the state of Montana “the right is intended to prevent not just redress harm”(cited in Raffensperger 2003). In the state of Hawaii, the precautionary principle is developed to help further the idea of public trust doctrine built into the state’s constitution. This idea is seen in the Waiahole Ditch decision, in which small native farmers sought to challenge the Commissions on Water Resource Management for water allocated from the Waiahole ditch that had been taking to the other side of the island to the sugar plantations. The Supreme Court in Hawaii stated in its decision,
Where scientific evidence is preliminary and not yet conclusive regarding the management of fresh water resources which are part of the public trust, it is prudent to adopt ‘precautionary principles’ in protecting the resource. That is, where there are present or potential threats of serious damage, lack of full scientific certainty should not be a basis for postponing effective measures to prevent environmental degradation. In addition, where uncertainty exists, a trustee’s duty to protect the resource mitigates in favor of choosing presumptions that also
protect the resource (Cited in Raffensperger).
This statement by the court not only “reinforced the public trust doctrine but argued that the precautionary principle was essential for the implementing the doctrine”(Raffensperger 2003). Even though this is a State Supreme court case, the United States Supreme Court looks to these case as gaining precedence for future cases.
Over all the precautionary principle is starting to play a role in American environmental policy, seen from the courts stance in Ethyl v. EPA where the court upheld the precautionary legislation, to the Montana’s and Hawaii constitutions. Rachel Carlson in Silent Spring stated “If the Bill of Rights contains no guarantees that a citizen shall be secure against lethal poisons distributed either by private individuals or by public officials, it is surely only because our forefathers, despite their considerable wisdom and foresight, could conceive of no such problem” (Carlson 1962). However there is such a problem and there is no one overarching principle guiding the policy in the United States. On the other hand, if the ideals came into play that the precautionary principle became the foundation for American environmental law, then it could be built into the Constitution, where all citizens could enjoy nature for years to come. Nonetheless, Americans will have to retrain themselves and the way they think so that every action can promote the betterment of the land.
Literature Cited
Carlson, Rachel. 1962. Silent Spring. Houghton Mifflin, Boston, MA.
Godlstein, Bernard and Carruth, Russellyn. 2005. “Implications of the Precautionary Principle: Is it a Threat to Science?” Human and Ecological Risk Assessment 11.1: 209
Houston Declaration. 1990.
Kriebel, David, et al. 2001. "The Precautionary Principle in Environmental Science. (Commentaries)." Environmental Health Perspectives 109.9: 871(6)
LaFranchi, Scott. 2005. “Surveying the precautionary principle's ongoing global development: the evolution of an emergent environmental management tool." Boston College Environmental Affairs Law Review 32.3: 679-720
Raffensperger, Carolyn. 2003. “Constitutional Experiments: Protecting the Environment and Future Generations” Conservation Biology 17.6:1487(2).
Salzman, James and Thompson, Barton H. 2003. Environmental Law and Policy. Foundation Press, New York, NY.
Wikipedia. 2005. The Delaney Clause. <>
written for Environmental Ethics
16th October 2005
s.e.w
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