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Groundwater Protection in Selected Countries

4. Precautionary Principle

New principle

The precautionary principle has been a part of the environmentalists language for only 2 decades. It’s origins are generally attributed to Germany where guidelines discussing the Vorsorgeprinzip were published by the federal government in 1986.

In this document a distinction is made between identifiable risks and risks which are not yet proven. Adherence to the precautionary principle would require authorities to act on risks, even if they are not yet proven.

Brundtland Report

The first international statement of the precautionary principle was made by Ministers from 34 countries in the Bergen, Norway, declaration in 1990 as a following to the Brundtland Report (Brundtland, 1987). In this statement, sustainable development was coupled to the precautionary principle.

" In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation."

Rio Conference

The UN Conference on Environment and Development in Rio de Janeiro in 1992 included developing countries. In Principle 15 of the declaration (UN, 1992), it was agreed upon that the precautionary principle is to be widely applied by States according to their capabilities. The intention was to allow developing countries to apply the principle less rigorously, but could be extended to include the fact that all countries have a limit to their capabilities.

More recently, a conference dedicated to the precautionary principle was held in Copenhagen (Danish Ministry of Environment and Energy, 1998).

Groundwater protection legislation is generally based on the precautionary principle.

4.2 Definition

Many uncertainties exist in relation to environmental issues. This is especially true in the field of groundwater protection from point source contamination where the environmental fate of contaminants and their unwanted effects on target organisms are difficult or impossible to determine, but alone to anticipate. Environmentalists have urged the adoption of the precautionary principle as a means to cope with this uncertainty.

The precautionary principle addresses two problems: the problem of evidence and the problem of response (Badansky, 1994).

Evidence

Indisputable evidence of harm is rare in environmental fields due to the complexity of nature and to the built-in time delays between contaminant release and measurable effect. Since this is the case, how strong must our evidence be that harm is occurring before we take action? In the lack of evidence what risks for harm are we willing to take? The precautionary principle requires that we err on the side of caution.

Response

Once harm or risk of harm is established the next question is one of response. What level of harm is acceptable? Spend to reduce the harm? The precautionary principle requires that we emphasise benefits rather than insisting on proportionality between cost and benefit.

Burden of proof

An important aspect of the precautionary principle is the question of who must bear the burden of proof. In a traditional reactionary view, environmental regulators would have to prove that actual harm had been done before imposing restrictions. In the precautionary principle the burden of proof is shifted from the regulators or pollution victims to the polluters. Under the precautionary principle, potential polluters must show that their activities do not cause harm. This is a "negative" proof and is therefore not possible. However it does relieve the regulator of a major burden.

4.3 Implementation pitfalls

The use of the precautionary principle in environmental legislation is in keeping with the current public conception of what is appropriate. However, implementation of stringent precautionary measures is not easy. Implementation of legislation is closely tied to the actual financial resources available. Implementation may require a level of expenditures that is unacceptable and may even give environmental backlash.

For example, the Clean Air Act of 1970 in the USA is very precautionary in requiring an "ample margin of safety" in regulating the emissions of hazardous pollutants, even if this means applying a zero emission standard. To avoid having to apply the rule, the USEPA delayed designating substances as "hazardous". After 14 years only 7 substances were therefore regulated (Dwyer, 1990).

Similar difficulties can be encountered by many in-situ techniques in the remediation of point sources of groundwater contamination. Since these techniques often exhibit an asymptotic clean up curves, desired clean-up levels are often unattainable. This may be in sharp contrast to stringent clean-up levels which are based on the precautionary principle. This may result in the in-situ remedial techniques being discarded, despite other possible advantages, such as lower exposure of workers to contaminants.

Efforts to maintain the precautionary principle may result in a natural reluctance on part of environmental authorities to identify certain groundwater resources as less important or valuable than others (designating groundwater classes). Theoretically, strict adherence to the precautionary principle would seem to require that all groundwater must be protected. Designation of groundwater classes can, however, be a valuable tool in prioritising remediation of point sources of contamination and in land-use planning.

Austria has intentionally avoided the designation of classes with respect to the groundwater resource. England has focussed on vulnerability of the resource rather than the designation of classes. Denmark has recently carried out such a designation into three classes. In the USA, designation is determined by the individual states: Some have designations and others do not. For more information on the designation of classes for the individual countries see the respective attachments. More comparisons on these designations are found in the next chapter.

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