Important Concepts in Environmental Law – The “Precautionary Principle”. - LawNow Magazine

Important Concepts in Environmental Law – The “Precautionary Principle”.

Last issue we talked about sustainable development. This time the topic is the precautionary principle.

Most human activity has risk. When we are deciding whether we should do something, we balance the risks against the possible rewards.  Risk has two parts. First, there is the probability that something bad will happen. Second, there is the seriousness or severity of that result.  The two parts have to be considered together. A fifty percent probability that we will break a fingernail while fixing a light switch might be acceptable. A one percent chance that we will burn down the house doing the same task when we don’t know how probably isn’t.

Decisions about which risks are acceptable in a society are always going to be political. Risk can be internal, where the harm will happen directly to us or our own interests. Risk can also be external. If harm occurs, it will be to someone else or to society as a whole. Without the protection of regulation, people (and companies) are more likely to disregard the risk of an activity if the possible harm will happen to someone else. To economists these public harms are called “negative externalities”. Air pollution from factories drifting across borders, fish dying downstream from a plant that pollutes the river, and migration routes of animals being altered by transportation corridors are all examples of negative externalities.  To economists, negative externalities can be a sign that competitive markets aren’t working properly and that regulation might be needed.

For many decisions that have risk, people are free to take chances unless there is a law that says they can’t. For example, we are all free to sink our life savings into a legal business venture even if it has a low probability of success.  If someone wanted to stop us, they would have to prove that our activity is against a law or at least, harmful to others. We wouldn’t have to prove anything.

Because the natural world is complex it can be hard, or even impossible, to prove in advance either the probability or severity of possible harm from taking risks. In many cases we simply don’t have the scientific knowledge or the data to accurately predict what could happen if we do something.  And for the really big things, the results could be catastrophic and impossible to repair.

To deal with this, the precautionary principle turns the calculation around – someone proposing an activity has to prove that it would not cause an unacceptable level of harm before they do it. Where the precautionary principle applies, governments have a duty to protect the public interest through regulation even when there isn’t full scientific certainty that harm will occur. The Rio Declaration (the 1992 Report of The United Nations Conference on Environment and Development) used these words: “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”.  When scientific information about environmental effects is incomplete, extra caution is needed.  Prevention of harm will always be easier and cheaper than remediation after harm has been done.

To deal with this, the precautionary principle turns the calculation around – someone proposing an activity has to prove that it would not cause an unacceptable level of harm before they do it. The Supreme Court of Canada has cited authors who state that the precautionary principle has become a norm of international law.  The Federal Court of Canada has applied the principle when considering the regulation of fish farms. The principle has been recognized in various forms in international agreements. It has been incorporated into some Canadian legislation including the Preamble to the federal Oceans Act, section 2(1)(a) of the  Canadian Environmental Protection Act, 1999, section 9 of the  Federal Sustainable Development Act, the Preamble of the Canada National Marine Conservation Areas Act and section 4(2) of the Canadian Environmental Assessment Act, 2012.   Although it is not universal, it has been incorporated into many provincial statutes, regulations and policies dealing with protection of the environment.

Arguments have been raised that broad application of the precautionary principle can result in gridlock with no decisions ever being made. Applying the principle does not provide automatic, easy answers about which risks should be taken and which ones should be avoided.  It just says a serious risk shouldn’t be disregarded only because there is a lack of scientific certainty about the likelihood or severity of harm. Decisions about which risks are acceptable in a society are always going to be political.

Next time we will talk about the important concept of “polluter pays” in Canadian environmental law.”

Authors:

Jeff Surtees
Jeff Surtees
Jeff Surtees, BComm, JD, LLM, is the Executive Director of the Centre for Public Legal Education Alberta.
 


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