3 Changing Conceptions of Environmental Risk
Edited By: Jorge E. Viñuales
- Environmental disputes
Two decades on, the Rio Declaration on Environment and Development still stands as a remarkable milestone in the development of international environmental law.1 While the Rio Declaration has made many important contributions to international environmental law and the law on sustainable development, perhaps its most transformative contribution lies in its international endorsement of the principle of precaution. As the later chapter in this commentary on Principle 15 discusses, the precautionary principle gives effect to the notion that scientific uncertainty over the nature and extent of environmental harms should not be used as a reason for postponing protective measures.2 That principle stands in opposition to the idea—well-accepted in international environmental law prior to that point—that measures to address environmental threats ought to be adopted only where there exists firm scientific evidence establishing a likelihood of harm.3 The Rio Declaration’s endorsement of precaution in Principle 15 introduced into international environmental law a new discourse over the proper evidentiary foundations of global environmental regulation. It has thus played an important role in changing conceptions of what amounts to an environmental ‘risk’ necessitating an international legal response.4 At the same time the principle continues to generate disagreement over its meaning and effect, including the extent of scientific evidence and (un)certainty that is required to justify environmentally protective measures.
This chapter introduces the competing themes in this discourse as a backdrop to the book’s discussion of relevant principles of the Rio Declaration, in particular: Principle 9 (endogenous capacity for sustainable development); Principle 12 (trade and environment);5(p. 76) and Principle 15 (precaution). It begins with a discussion of the place of science in international environmental law and the central importance of scientific evidence to our understanding of environmental risk. The chapter then considers the challenge that the precautionary principle poses to traditional approaches to international environmental regulation, which limit international action to circumstances where there is strong scientific evidence that significant environmental damage will or is likely to occur. However, in some international treaties dealing with environmental risks, provisions calling for a ‘precautionary approach’ are juxtaposed with quantitative standard setting measures based on ‘present knowledge’,6 or requirements to undertake scientific risk assessment. This raises questions as to the relationship between science-based and precautionary conceptions of environmental risk and associated regulatory approaches. Such tensions are not easily resolved by international law, given underlying differences in environmental values and cultural sensitivities to risk and uncertainty.7
Since the emergence of the earliest treaty instruments addressing environmental and natural resource management issues, science has played a special role in the development and implementation of international environmental law. State action to address environmental threats has generally been closely tied to scientific discoveries of harm, albeit that the international response may follow some time later and be strongly shaped by other factors, such as economic considerations.8
There are at least three reasons that explain the central place that science has occupied, and continues to occupy, in the rules and institutions of international environmental law. First, widespread environmental risks, which require international cooperative action to resolve, are often ‘invisible’ risks. Their causes are imperceptible to the untrained eye, requiring study and the ‘sensory organs’ of science for detection.9 Transboundary pollution problems, such as that in issue in the seminal international environmental case of Trail Smelter, are a leading example. In the Trail Smelter Arbitration, the Arbitral Tribunal relied on scientific advice and expertise in making its findings about the mechanism of atmospheric distribution of sulphur dioxide gas emitted from the zinc smelter at Trail in British Columbia and the extent of the detrimental effects on property and the environment in neighbouring Washington State.10 Likewise, contemporary environmental risk problems, such as persistent organic pollutants, ozone depletion, and climate change, depend to an even greater extent upon sophisticated structures of scientific research and modelling to inform policy-makers of the extent of the risks at issue.
(p. 77) Second, in the ‘risk society’, as famously postulated by Beck and Giddens, it is these hidden risks of technological or human origin that are of greatest societal concern.11 The focus on risk in modern society has led to risk management becoming a central feature of government activity at the national and international levels.12 A focus on risk necessarily requires mechanisms for risk identification, risk assessment, and risk control.13 These mechanisms are dominated by scientists and other ‘risk professionals’, who bring a self- consciously ‘technical’ approach to their work that is seen as being more objective.14
Third, as international environmental law has expanded its focus and penetrated more deeply into national regulatory efforts to address risks, its legitimacy has begun to come under challenge.15 In some cases this has led to attempts to integrate civil society views more effectively in decision-making processes.16 In other cases, treaty regimes have sought to bolster the scientific foundations of standard-setting and decision-making, using the authority of science and experts to sustain the legitimacy of international environmental risk governance.
The close association between scientific and legal developments in the international environmental field was recognized by States meeting at the United Nations Conference on Environment and Development (UNCED), albeit not explicitly in the Rio Declaration itself. Instead Agenda 21, the policy framework for achieving sustainable development formulated at UNCED, states ‘the sciences are increasingly being understood as an essential component in the search for feasible pathways toward sustainable development’.17 A key role for science in this regard was said to be ‘to provide information to better enable formulation and selection of environment and development policies in the decision-making process’.18 This view underpins Principle 9 of the Rio Declaration, which calls, inter alia, for States to ‘cooperate to strengthen endogenous capacity-building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge…’.
Today it is rare to find an international instrument or multilateral treaty dealing with matters of environmental risk that does not make reference to science or technical considerations.19 At the very least, most international environmental treaties provide for (p. 78) the transfer of necessary technologies to developing countries, the exchange of scientific information and the allocation of funds for technical assistance and capacity building.20 A significant number of multilateral environmental treaties also have standing scientific or technical advisory bodies made up of experts from a variety of disciplines who act independently of the governments appointing them.21 Key functions performed by such bodies include the receipt and audit of national reports, the review of parties’ compliance with technical obligations, the issue of guidelines for activities such as environmental monitoring, and performing assessments of environmental health or quality. Treaty-based scientific bodies in turn often have strong linkages with non-governmental or inter-governmental scientific organizations, such as the International Council for Exploration of the Seas, the Group of Experts on the Scientific Aspects of Marine Pollution, the Intergovernmental Platform on Biodiversity and Ecosystem Services and the Intergovernmental Panel on Climate Change. In sum, scientific research in contemporary international environmental regimes is viewed as ‘a major supplier of relevant knowledge’, which is drawn on by (p. 79) decision-makers ‘for problem identification and diagnosis, and in some cases also for explicit policy advice’.22
In traditional international environmental law-making, the ease with which a cogent case can be made for international regulation generally turns on the ability to show that lack of action by the international community is likely to result in significant adverse effects.23 Measures to address such ‘known’ risks can then be instituted in order to prevent or mitigate predicted harms.24 The precautionary principle represents a fundamental challenge to this process of global environmental regulation. Its basis is not known predictable harms, but rather those risks that are uncertain but yet carry with them the potential for serious or irreversible damage.
The precautionary principle recognizes the inherent limitations of scientific research, which requires a high level of confidence in available data before an adverse effect will be definitively declared.25 However, uncertainties—whether conceptually or methodologically based26—may mask a diagnosis of adverse effect, even where harm is actually occurring. By the time scientific knowledge improves to the point where harm is detected, significant environmental degradation may have already occurred.27 To avoid this situation, the precautionary principle calls for preventative measures not to be postponed where there are threats of serious or irreversible damage, albeit not demonstrated by conclusive scientific evidence. International regulatory action in such circumstances is based on scientific or other evidence sufficient to demonstrate a potential risk but not meeting the high standards of confidence or ‘certainty’ required in scientific research.28
Since the Rio Declaration, this ‘precautionary approach’ to regulation has been endorsed in several treaties and by international courts and tribunals.29 While the (p. 80) utility of applying ‘prudence and caution’ when dealing with uncertain environmental risks has been widely recognized,30 more difficult issues remain as to how this general notion should be operationalized in practice.31 These include questions over the extent of scientific uncertainty that triggers precautionary action, the degree of ‘hard’ scientific support required and, in dispute settlement settings, which party bears the onus for demonstrating that precautionary measures are or are not appropriate. Increasingly it is recognized that scientific knowledge about environmental risks represents a spectrum running from well-documented, oft repeated studies to highly uncertain theories, which may or may not be the first signs of a coming paradigm shift in the relevant field of research.32 Not surprisingly, States and international institutions have differed strongly as to where, along this spectrum, the appropriate domain of precautionary measures lies.
Although a precautionary approach to international environmental regulation has achieved broad support during the past two decades, vigorous debate continues over competing claims of the degree of scientific evidence and certainty required to justify precautionary restrictions. This debate has been facilitated by developments in regulatory science that have focused ever greater attention on complex, ‘invisible’ risks that afford decision-makers a wider margin of discretion in determining the appropriate regulatory response. In the 1960s Silent Spring era,33 the regulatory focus was on pollutants with direct toxicity to humans or the environment for which an environmental ‘assimilative capacity’ could be ascertained and employed as a basis for standard-setting.34 Over time, the focus shifted to issues of carcinogenicity (eg hormone residues in beef) and more recently to indirect, cumulative risks such as endocrine disrupting substances or loss of genetic diversity.35 For these less direct, less tangible risks scientific uncertainties are often (p. 81) more prevalent, inviting application of the precautionary approach. Conversely, in the face of uncertainty there may be reluctance to put in place regulations to control such risks where the costs will be significant but the health and environmental benefits are difficult to quantify.36
Strong differences of perspective on this issue have emerged between the United States—which favours basing regulatory decisions on ‘sound’ or ‘hard’ science37—and the European Union (EU)—which, in line with the adoption of the precautionary principle in EU law,38 advocates allowing decision-makers a greater ‘margin of appreciation’ in the face of scientific uncertainty.39 These positions in turn reflect strong cultural differences regarding risk, uncertainty, and innovation in the two jurisdictions. The domestic US risk regulatory system has evolved over time to require strong scientific (and economic) support for risk prevention measures.40 By contrast, the EU, since a series of food safety crises in the 1990s, has taken a progressively more cautious approach to risk management in circumstances of scientific uncertainty.41
The transatlantic debate over competing ideas of environmental risk has been particularly intense in the international trade sphere where EU precautionary measures banning or limiting the use of products have been challenged by the United States for breaching rules under agreements of the World Trade Organization (WTO). As discussed in more depth in the chapter on Principle 12 (trade and environment), this conflict has led to a series of cases that has placed the dispute settlement bodies of the WTO in the invidious position of choosing between the merits of different risk conceptions. Prominent disputes have concerned the lawfulness of restrictions on the imports of meat products containing residues of growth hormones (which may be linked to cancer in humans), and the EU’s ban on genetically modified crops and foods (which may be linked to a range of health and environmental risks including biodiversity loss and antibiotic resistance of disease-causing organisms).42 Another dispute looms over recent precautionary measures taken by the EU to ban certain pesticides, which are believed to be contributing to a global die-off in bee populations.43 Concerns over the rapid decline of bee populations have also been raised in the United States, but the response of government agencies has been to stress the lack of scientific research clearly linking (p. 82) bee health declines to pesticide use.44 As one US agency official explained, ‘we let the science lead our regulatory decision-making, and we want to make sure that we make accurate and appropriate regulatory decisions as opposed to things that could lead to meaningful societal cost without any benefit whatsoever’.45
Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism in question… in order to avoid or minimize such potential adverse effects.49
In WTO law, similar conflicts arise under the Sanitary and Phytosanitary Measures Agreement (SPS Agreement), which requires SPS measures adopted for the purpose of protecting human, animal or plant life or health to be based on sufficient scientific evidence and a scientific risk assessment.50 Nonetheless, article 5.7 of the SPS Agreement—characterized by the WTO Appellate Body as ‘reflecting’ the precautionary principle51—permits temporary restrictive measures to be maintained by parties in circumstances where relevant scientific evidence is ‘insufficient’.
Resolving the tension between competing conceptions of environmental risk under treaty provisions or in international adjudication creates ‘some acute difficulties’.52 Arguably, where these conflicts arise there is no correct answer and certainly not one that can be diagnosed by reference to the purportedly objective knowledge of science. Rather such conflicts reveal the importance of value considerations to our notions of environmental risk, values that may well diverge across a diverse international community.
With its nod to the importance of science as a component of policy-making for sustainable development while also calling for wide application of a precautionary approach, the Rio Declaration both recognized traditional notions of environmental risk and provided the foundations for a fundamental challenge to them. Our conceptions of environmental risk have been unalterably changed as a result. Acting on the basis of uncertain evidence of threats of environmental harm is now accepted as an important precept—perhaps even a general principle—of international environmental law. Yet debate continues as to how far the international community should go in regulating potential environmental harms in the face of scientific uncertainty. In the decades ahead, these questions are likely to persist as international environmental law moves to tackle a range of pressing environmental problems including climate change and possible technological responses to it such as carbon capture and storage and geo-engineering.(p. 84)
4 The term ‘risk’ here is used in the broad sense of a possibility of harm. The term has also acquired a narrower technical meaning as the product of the probability of an adverse event and the magnitude of its harmful consequences: see further Adams, J., Risk (UCL Press 1995), 8.
5 International trade law has been an important forum for testing the permissible extent of precautionary measures to address environmental risks, where such measures also impact international trade. For discussion see Herwig, A. and Joerges, C., ‘The Precautionary Principle in Conflicts Law Perspectives’, in Van Calster. G. and Prévost, D. (eds), Research Handbook on Environment, Health and the WTO (Edward Elgar 2013) 3; Wagner, M., ‘Taking Interdependence Seriously: The Need for a Reassessment of the Precautionary Principle in International Trade Law’ (2012) 20(3) Cardozo Journal of International and Comparative Law 713.
6 See eg Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to Abate Acidification, Eutrophication and Ground-Level Ozone (Gothenburg), 30 November 1999, in force 17 May 2005, UN Doc EB.AIR/1999, art 1 (‘Gothenburg Protocol’).
13 National Research Council, Risk Assessment in the Federal Government: Managing the Process (National Academy Press 1983); Royal Society, Risk Assessment: Report of a Royal Society Study Group (Royal Society 1983). See also Jasanoff, S., Designs on Nature: Science and Democracy in Europe and the United States (Princeton University Press 2005), 267, noting the wide acceptance of risk assessment as ‘a principled approach to ordering knowledge and weighing alternatives’.
16 A leading example in this regard is the Aarhus Convention on Access to Information, Public Participation and Decision-making and Access to Justice in Environmental Matters, 25 June 1998, in force 30 October 2001, (1998) 38 ILM 517.
18 UNCED, Agenda 21, para 35.1. The relevant paragraph goes on to say that it will therefore be essential to enhance scientific understanding, improve long-term scientific assessments, and strengthen scientific capacities in all countries.
19 House of Lords Science and Technology Committee, Science and Treaties (2004, HL 110-I, London). See also the catalogue of institutions ‘for the performance of science policy functions’ within multilateral environmental treaty regimes listed in Haas, P., ‘Science Policy for Multilateral Environmental Governance’ in Kanie, N. and Haas, P. (eds), Emerging Forces in Environmental Governance (United Nations University 2004), 115, appendix.
20 Examples include the Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971, in force 17 December 1975, 996 UNTS 245, art 4(3); Convention for the Protection of the World Cultural and Natural Heritage, Stockholm, 16 November 1972, in force 17 December 1975, 1037 UNTS 151, art 22; Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 13 November 1972, in force 30 August 1975, 1046 UNTS 120, art IX; Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 5 May 1980, in force 7 April 1982, 1329 UNTS 48 (CCAMLR) art XX; Vienna Convention for the Protection of the Ozone Layer, Vienna, 22 March 1985, in force 22 September 1988, 1513 UNTS 293, arts 3, 4; Montreal Protocol on Substances that Deplete the Ozone Layer, Montreal, 16 September 1987, in force 1 January 1989, 1522 UNTS 3, arts 9, 10, 10A; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 23 March 1989, in force 5 May 1992, 1673 UNTS 57, arts 10(2), 14(1); Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991, in force 14 January 1998, 30 ILM 1455, art 6(1); United Nations Framework Convention on Climate Change, Rio De Janeiro, 9 May 1992, in force 24 March 1994, 1771 UNTS 164 (UNFCCC), arts 4, 11; Convention on Biological Diversity, Rio De Janeiro, 5 June 1992, in force 29 December 1993, 1760 UNTS 79, (CBD) arts 12, 16–18, 21; United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, Paris, 14 October 1994, in force 16 December 1996, 1954 UNTS 3, arts 12, 16–18, 19; Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks (Straddling Stocks Agreement), New York, 4 December 1995, in force 11 December 2001, 2167 UNTS 3, arts 10, 14, 25; Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 11 December 1997, in force 16 February 2005, 2303 UNTS 148, art 10(d); Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Rotterdam, 11 September 1998, in force 24 February 2004, 2244 UNTS 337, arts 14(1)(a), 16; Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Biosafety Protocol), Cartagena, 29 January 2000, in force 11 September 2003, 2226 UNTS 208, arts 20, 22; Convention on Persistent Organic Pollutants, Stockholm, 23 May 2001, in force 17 May 2004, (2001) 40 ILM 532 (POPs Convention), arts 11(2)(b), 12, 13; International Convention for the Safe and Environmentally Sound Recycling of Ships, Hong Kong, 11 May 2009, not in force, IMO Doc SR/CONF/45, art 13; Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biodiversity Diversity, Nagoya, 29 October 2010, not in force, C.N.782.2010.TREATIES-1, art 23.
21 Examples include the Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23 June 1979, in force 1 November 1983, 1651 UNTS 333, art VIII; CCAMLR, arts XIV, XV; Ozone Convention, Decision VCI/6; Antarctic Treaty Protocol, arts 11, 12; UNFCCC, art 9; CBD, art 12; Desertification Convention, art 24; Rotterdam Convention, art 18(6); POPs Convention, arts 8, 19(6); International Convention for the Safe and Environmentally Sound Recycling of Ships (Hong Kong) 11 May 2009, not in force, IMO Doc SR/CONF/45, Annex, Regulation 6.
24 Freestone, D. and Hey, E., ‘Origins and Development of the Precautionary Principle’, in Freestone, D. and Hey E. (eds), The Precautionary Principle and International Law: the Challenge of Implementation (Kluwer Law International 1996), 3, 13.
25 Kriebal, D. et al, ‘The Precautionary Principle in Environmental Science’ (2001) 109(9) Environmental Health Perspectives 871. Conventionally scientific research guards against Type 1 error—the mistake of concluding that a phenomenon or association exists when in truth it does not—by setting that error rate low, usually 5%.
26 For a useful discussion of different uncertainties in scientific research that may affect regulatory conclusions see Walker, V., ‘The Siren Songs of Science: Toward a Taxonomy of Scientific Uncertainty for Decisionmakers’ (1991) 23 Connecticut Law Review 567.
27 The European Environment Agency has issued two reports documenting ‘late lessons’ from such from ‘early warnings’. The reports canvass diverse case studies from fisheries collapse to asbestos and nanotechnology. See European Environment Agency, Late Lessons from Early Warnings: Science, Precaution, Innovation (European Union 2013); European Environment Agency, Late Lessons from Early Warnings: the Precautionary Principle 1896–2000 (European Union 2011).
28 The phrase ‘lack of full scientific certainty’ in Principle 15 of the Rio Declaration is problematic in this regard as there is no such thing as absolute certainty in science. A better interpretation would treat the word ‘full’ in this context as equating to the usual 95% confidence limit applied in scientific research. See further Kriebal et al, ‘The Precautionary Principle in Environmental Science’.
31 For discussion see Peel, J., The Precautionary Principle in Practice: Environmental Decision-making and Scientific Uncertainty (Federation Press 2005); Trouwborst, A., Precautionary Rights and Duties of States (Brill 2006).
32 See eg the discussion of the precautionary principle and concepts of sufficiency/insufficiency of scientific knowledge in Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, ITLOS Case No 17, 1 February 2011), para 131; United States—Continued Suspension of Obligations in the EC-Hormones Dispute, Report of the WTO Appellate Body, WT/DS320/AB/R, 16 October 2008, para 703.
33 Rachel Carson’s 1962 book Silent Spring (Houghton Mifflin 1962) focused global attention on the detrimental effects of pesticides such as DDT on the environment. It is widely credited with having helped to launch the environmental movement in the United States.
34 The assimilative capacity approach, which bears strong similarities to the notion of critical loads used in treaties such as the Gothenburg Protocol, is based on the assumption that there is a safe level of pollution or emissions that is quantifiable. The precautionary principle implicitly rejects this approach as a basis for environmental policy. See further Barton, C., ‘The Status of the Precautionary Principle in Australia: its emergence in legislation and as a common law doctrine’ (1998) 22 HELR 509.
35 Joerges, C., ‘Law, Science and the Management of Risks to Health the National, European and International Level—Stories on Baby Dummies, Mad Cows and Hormones in Beef’ (2001) 7 Columbia Journal of European Law 1.
37 McGarity, T., ‘Our Science is Sound Science and Their Science is Junk Science: Science-Based Strategies for Avoiding Accountability and Responsibility for Risk-Producing Products and Activities’ (2004) 52 University of Kansas Law Review 897.
38 Treaty on European Union, Official Journal C 191, 29 July 1992, in force 1 November 1993 required EU action on the environment to ‘be based on the precautionary principle’, with further amendments under the 1997 Amsterdam Treaty to apply the principle to Community policy on the environment (art 174(2)). For the relevant provisions in the consolidated EU Treaty see Consolidated Version of the Treaty on the Functioning of the European Union, Official Journal C 83/47, 30 March 2010, art 191(2).
43 European Commission Implementing Regulation No 485/2013 of 24 May 2013, Official Journal L139/12, 25 May 2013, available at <http://ec.europa.eu/food/animal/liveanimals/bees/neonicotinoids_en.htm>.
45 Plumer, B., ‘Why are the bees dying? The U.S. and Europe have different theories.’ Washington Post (Washington DC), 3 May 2013, available at <http://www.washingtonpost.com/blogs/wonkblog/wp/2013/05/03/why-are-bees-dying-the-u-s-and-europe-have-different-theories/>.
46 eg Gothenburg Protocol; POPs Convention, preamble, arts 1 and 8, Annex E. Even a highly precautionary treaty such as the Straddling Stocks Agreement, which requires application of a precautionary approach (art 6), also includes the principle that conservation and management measures should be ‘based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield’ (art 5).