The Precautionary Principle

Introduction

Why address the precautionary principle?

Erik Lindegaard
Director General, Danish Environmental Protection Agency

Before I give the floor to the presenters, I have a couple of comments and observations. Firstly, a little about why we are addressing the theme for today, the precautionary principle.

In my view, which is merely one of many, we must do this for at least four reasons. Firstly, because the principle is already part of legislation in Denmark. Secondly, despite this, it is unclear what the principle involves. Thirdly, because this lack of clarity means that the concept could include a number of very different elements. Fourthly because the principle requires openness if it is to have any meaning.

A few comments on each of these reasons.

Firstly, the precautionary principle is part of legislation. The Folketing has already included the precautionary principle in a number of environment acts which apply in Denmark today. These include the Environmental Protection Act, the Chemical Substances and Products Act, the Marine Environment Act, and the Environment and Gene Technology Act.

At first glance, the legislation does not include the precautionary principle in a way that jumps out and grabs you. The principle is not mentioned by name, but it is there. For example it states that ‘consideration must be given to the likely impact of pollution’. Or, as is stated in the Chemical Substances and Products Act ‘it shall be possible to intervene where there is a suspicion that a chemical substance is hazardous for health and the environment’, and so on.

This is to say that we have not specifically identified the principle, but in substance it is already part of Danish environmental legislation.

Things are different with international legislation. Here, there is not only the principle, but it is mentioned by name, and it is in bold type. It has been included in the Union Treaty which states clearly that EU environmental policy must be based on the precautionary principle. It has been included in the Rio Declaration from the UN Summit on the Environment and Development in 1992, and it has been included in a number of environment conventions; specifically in conventions on the marine environment and corresponding conventions on the ozone layer. We have collected the legislation in a small note which we have issued (see appendix). This shows how the concept is stated in the various regulations and it will provide inspiration for our discussions today.

So, the principle is recorded in both international and national legislation.

The second problem is that in general there is great uncertainty and lack of clarity about what the principle involves. This is precisely the reason behind this conference. We had to conclude that it was difficult to provide the principle with more meat.

Of course this could lead one to question what sort of ridiculous national and international legislation we have when it is based on a principle which, if anyone asks what it actually involves, the reply is a messy ‘it is not possible to say exactly’.

In this type of situation one can seek solace in history. In the environmental area we have another well known principle which in a way has suffered the same fate, namely the principle that ‘the polluter pays’. When we started to pass environmental legislation in the ‘70s, many maintained that the legislation should naturally be based on the principle that the ‘polluter pays’. However, during the drafting of the Environmental Protection Act there was so much disagreement about this principle that it was decided to analyse it in committee. The Committee arrived at the conclusion that environmental legislation should be based on this principle, but it neglected to define more closely what the principle involves.

This has been discussed since. There are not many who doubt that it is the right principle, and from the start of the ‘80s we have also phased out support schemes for environmental investments by industry. Otherwise there has not been great theoretical debate about the principle. We just apply it, and we are actually very content with it.

One could ask, however, how consistent we really are in relation to the principle. Future legislation regarding soil contamination is currently under debate. In this debate there is a rather loose definition of how much weight can be given to ‘the polluter pays’. Similarly, some believe that the principle has been turned on its head in relation to the environmental problems associated with agriculture. So, we live and work with the principle ‘the polluter pays’, but the principle is still under debate and it is not applied particularly consistently in a number of areas.

I can imagine that we will discuss the precautionary principle in the same way as ‘the polluter pays’ principle, and this will bring us closer to a common perception of what the precautionary principle is. At the same time we will perhaps also arrive at acknowledging that we will probably never be able to define precisely what the precautionary principle involves.

Firstly, no matter how we twist and turn it, we can maintain that this principle must be interpreted in relation to the situation we are addressing. Examples from international legislation demonstrate the variety of ways in which the principle can be worded. In wordings relating to biodiversity, for example, the concept is very wide. On the other hand, the concept is defined more narrowly in relation to the marine environment.

Another question surrounding application of the principle is who or what should it protect? The environment per se? Parts of the environment? Specific population groups such as children or pregnant women? Who are the target group?

Finally the debate encapsulates a difficult dimension; can a given risk be avoided? It seems as if application of the principle is very dependent on this dimension. People react very differently, depending on whether the precautionary principle is discussed in relation to the working environment, the atmosphere, drinking water, foodstuffs, cigarettes, or other consumer goods. A factor also seems to exist whose importance, to a certain extent, depends on whether it is possible to avoid a risk or not.

Thirdly, application of the principle necessitates the involvement of other elements than the natural sciences. It is also necessary to consider economic, social, and ethical factors. This can be illustrated by a domestic example, namely our demands in relation to drinking water in this country. As everyone knows, we have an objective that drinking water and ground water should be as clean as possible, because water is fundamental to life for us all. This is why we have set thresholds for pollutants, especially pesticides, which in practical terms correspond to zero. This means that breaches of the thresholds lead to pesticides being phased out, irrespective of whether or not there are health risks.

This could appear to be an incredibly simple and effective method. Ban pesticides if the thresholds are exceeded. However, it is not as easy a this. In practice, it is necessary to assess and carry out estimates: how well-founded is the suspicion that the traces found in ground water do in fact originate from a pesticide? And what are the consequences of intervention or non-intervention?

There was the situation where the residue AMPA, which can come from glyphosate, was found in Copenhagen’s water supply. We were very uncertain of whether it did in fact originate from glyphosate, and we decided to wait before taking action until we knew whether glyphosate really was the source of the AMPA contamination. It was not, and this illustrates another problem with the precautionary principle. On the one hand it requires the courage and will to take action in an uncertain situation, and on the other hand it requires courage and will not to take action in an uncertain situation.

During the day, we will doubtless discuss the precautionary principle and its relationship to risk and risk management.

To me, risk management and the precautionary principle are two entirely different things. The precautionary principle cannot be measured, weighed, or calculated, whereas in principle, risk and risk management are dimensions which can be measured, weighed, and calculated. In this way there is a mathematical dimension which can be related to, and this is not the case with the precautionary principle.

Fourthly, we must consider the precautionary principle because it demands openness. We must expect that the principle will be debated for many years to come because no one can precisely define what it involves. It requires debate which makes the principle as visible as possible and which discusses why it should or should not be applied in specific situations.

In the end it is about the degree of safety the public require. It is not merely an academic or theoretical exercise, because the expectations of the public of how the principle is to be applied are not always entirely logical.

For example there is a strong desire to apply the principle actively in relation to pollution from pesticides and other chemicals. However the same unforgiving attitude is not apparent in relation to air pollution from cars. Here, we do not need to make do with the precautionary principle. In fact, we can calculate the risks and they are very great, but we accept these risks.

A corresponding paradox can be found in biotechnology. I believe that the demand to apply the precautionary principle to biotechnology is different for medicine than for foodstuffs. With such a wide span of expectations of the precautionary principle, it is extremely important to discuss it and make such differences visible.

It could be exciting if, during the day, we discuss four questions.

1. What degree of scientific basis or justified suspicion is necessary before the principle can be applied, and in this connection, who should make the decision? Should it be scientific experts, manufacturers, authorities, politicians, or the public?

This question can be illustrated with a small example. Some years ago a hypothesis arose that oestrogen-like substances could perhaps be the cause of the drop in men’s sperm count. All agreed that this was a hypothesis. The question is, whether an hypothesis like this is sufficient reason to apply the precautionary principle.

2. Will the media and citizens always demand that the precautionary principle is applied, even though there is a lack of knowledge about the specific problem? In other words, in particular, will applying the precautionary principle be a particular demand in relation to problems over which one has no control, problems where one cannot choose for or against?

Smoking is dangerous, everyone knows this. However, many of us this country smoke anyway in. On the other hand drinking water must be as clean as possible. Is this because we do not have any choice and we all have to use the drinking water which is supplied to households?

3. To what extent do commerce, manufacturers and importers take account of the precautionary principle? Industry usually needs evidence if there are to be interventions, but how reliable must such evidence be?

For example, at the end of the ‘80s it was decided to phase out CFCs which break down the ozone layer. At that time there was no scientific evidence of a direct relationship between CFC emissions and the break down of the ozone layer.

We are lucky enough to have evidence now, but what if we were never able to obtain this evidence? Or what if proved to the contrary? Despite the relative uncertainty at that time, action was taken anyway.

Another example is the EPA’s recently published list of undesirable substances. This has been criticised for not having an adequate basis, and that this should have been obtained first through a thorough risk assessment at EU level. On the other hand, we are reproached by some green organisations because we have not introduced an immediate ban on the undesirable substances on the list.

4. How do we tackle the cost/benefit dimension in relation to the precautionary principle? Despite the problems we can identify, there are vast numbers of substances which are very useful. They improve our chances of survival, provide well-being, comfort, and much more. How do we relate these values?

I will be pleased if during today we can outline these issues. I do not expect today to end with a precise definition of the precautionary principle, nor do I expect precise answers to my four questions. However, I hope that we will all leave more clear about these issues than when we came.