Protecting Public Health and the Environment: Implementing The Precautionary Principle

By Wes Jackson

When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. This idea, known as the "Precautionary Principle," is seen by environmentalists and public health experts as the key to protecting ecological and human health.

In January 1998, the Science and Environmmental Health Network convened an international group of scientists, researchers, environmentalists, academics, and labor representatives to discuss ways of incorporating the precautionary approach into environmental and public health decision-making. Known as the Wingspread Conference on Implementing the Precautionary Principle, the workshop focused on understanding the contexts under which the principle developed, its basis, and how it could be implemented. Protecting Public Health and the Environment is an outgrowth of that conference. The book:

• describes the history, specific content, and scientific and philosophical foundations of the principle of precautionary action
• explains the functions of the principle in activities as diverse as agriculture and manufacturing
• explains how to know when precautionary action is needed and who decides what action will (or will not) be taken
• attempts to show how the burden of proof of environmental harm can be shifted to proponents of a potentially hazardous activity
• provides specific structures and mechanisms for implementing the precautionary principl.

Throughout, contributors focus on the difficult questions of implementation and fundamental change required to support a more precautionary approach to environmental and public health hazards. Among the contributors are David Ozonoff, Nicholas Ashford, Ted Schettler, Robert Costanza, Ken Geiser, and Anderw Jordan.

Public health professionals and academics, policymakers, environmental lawyers, sustainable agriculture proponents, economists, and environmental activists will find the book an enlightening and thought-provoking guide to a new way of thinking about ecosystem and public health protection.

• Language: English
• Publisher: Island Press
• Release date: Apr 10, 2013
• ISBN: 9781610913034

Book preview

Institute

Preface

ESTABLISHING A GENERAL DUTY OF PRECAUTION IN ENVIRONMENTAL PROTECTION POLICIES IN THE UNITED STATES

A PROPOSAL

Ken Geiser

The United States Congress should amend its environmental laws to establish a general duty to act precautiously toward the environment. A general duty to act with caution would clarify the responsibilities of all parties to assure environmental protection, even where there are no statutory regulations with which to comply and where there is no scientific certainty on which to rely.

The chapters in this book offer a wide range of stimulating perspectives on the Precautionary Principle, which calls for protective actions toward the environment, even when the evidence of harm remains uncertain. Proponents of precaution appear well aware that adopting such a posture would significantly alter our current approach to environmental policy making. Just how this proposed approach might be introduced into national policy remains more sketchy. One strategy would be to think big: to acknowledge that this new approach requires more than a simple shift in procedures and to assert that this is, indeed, a change in the very principles of environmental protection. Consider how this might occur.

Between 1969 and 1979, the U.S. Congress enacted some twenty-three major laws for regulating pollutants and developments that would otherwise threaten human health and ecological systems. It was a period of environmental activism during that the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) were established and filled with legal authorities.

While OSHA was established through the passage of one omnibus law, the Occupational Safety and Health Act of 1970 (OSHAct), the EPA was created by executive order and empowered by a wide range of statutes that had very different objectives and philosophies. Many of these laws were media specific (e.g., air, surface water, groundwater, land) statutes, whereas others focused on specific hazards (pesticides, nuclear power, toxic chemicals). Only one of the laws, the National Environmental Protection Act of 1969 (NEPA), addressed the entire domain of environmental protection. Indeed, NEPA attempted to set out a comprehensive national mission for environmental protection.

Section 2 of NEPA declares the purpose of the act:

To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote measures that will prevent or eliminate damage to the environment and the biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation.

Such grand ambitions are followed in Title I by:

Section 101(a) The Congress . . . declares that it is the continuing policy of the Federal Government . . . to use all practical means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

Finally in Section 101(c), NEPA states:

The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

The law goes on to state that it is a responsibility of federal agencies to assure that all projects that involve federal resources receive a full environmental review prior to approval. While this idea was quite controversial at the time NEPA was enacted, today, it is routinely accepted that projects initiated with federal resources undergo an environmental impact assessment that evaluates the environmental effects of the proposed action against alternative strategies.

For large projects, these environmental impact assessments can be quite extensive taking into consideration a wide array of ecological, social, and cultural conditions and the process must be open to public review and comment. It is clear that the intention of this procedure is to slow down proposed actions and require that proponents engage in a thoughtful review of the environmental impacts with the assumption that the least damaging strategy will be selected. This is not so different from the spirit that lies under the now popular precautionary approach.

The precautionary approach is a concept currently written into several international agreements and foreign environmental statutes as the Precautionary Principle. The Precautionary Principle asserts that parties should take measures to protect public health and the environment, even in the absence of clear, scientific evidence of harm. It provides for two conditions. First, in the face of scientific uncertainties, parties should refrain from actions that might harm the environment, and, second, that the burden of proof for assuring the safety of an action falls on those who propose it. This is sympathetic to the philosophy put forward in NEPA: to assure that those who promote an action assess the environmental and health impacts of that action before proceeding.

But NEPA is limited here to federal, state, or private projects engaging federal resources. It does not apply to fully private actions. The government is assigned a responsibility, but no other parties are provided with rights or responsibilities. In this respect NEPA differs dramatically from the OSHAct.

The OSHAct also states a clear purpose in its opening paragraphs. Section 2 (b) states that:

The Congress declares it to be its purpose and policy . . . to assure as far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources—

There are then listed a set of objectives. The first two are quite direct:

1. by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;

2. by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions.

There are federal responsibilities as well, and these begin with the third objective:

3. by authorizing the Secretary of Labor to set mandatory occupational safety and health standards. . . .

But it is in the fifth Section of the OSHAct that it differs so markedly from NEPA, and from all other environmental statutes for that matter. In section five the act creates duties:

  Section 5(a) Each employer—

shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

shall comply with occupational safety and health standards promulgated under this act.

  Section 5(b) Each employee—

shall comply with occupational safety and health standards and all rules, regulations, and orders issued in pursuant to this act which are applicable to his own actions and conduct.

Section five has come to be known as the General Duty Clause because it creates a general obligation on both employers and employees to follow the law and to strive toward safe and healthy workplaces. This was not a new concept. The Senate committee report of the OSHAct identified thirty-six states that had such general duty clauses written into their state health and safety statutes. The concept also followed a common law doctrine that held that there was a general duty to refrain from actions that would cause harm to others.

On occasion, OSHA inspectors cite employers under the general duty clause when they recognize a workplace hazard, but can find no applicable standard. The federal courts have likewise used the general duty clause to uphold citations against employers where there is no clear standard. Thus, the general duty clause acts as a kind of default authority that supports the wide array of mandatory standards that guide health and safety considerations at work.

The NEPA language offers no parallel default authority to those who promote environmental protection. There have been efforts to use Section 101(c) as a general statement of rights comparable to common law nuisances, but these have been conventionally rejected by the courts. Indeed, none of the other federal statutes offer anything like the OSHAct general duty clause.

From this perspective, it is not difficult to see that there would be value in formally establishing a general duty to protect the environment. If such a general duty to protect the environment were created, it would provide for some of the benefits that the OSHAct general duty clause now offers. First, it would clarify the rights and responsibilities of parties other than the government in the protection of the environment. Second, it would establish an obligation or duty to act in a protective manner toward the environment. Third, it would set a default authority for restraining environmentally damaging behavior, even where there are not applicable standards or regulations to condition that behavior.

Admittedly, a general duty to protect the environment is a fairly broad and ambiguous concept. There is virtue in such breadth, but the ambiguity may work against its application. Herein lies the value of the precautionary approach. The Precautionary Principle offers the practicality that a general principle of environmental protection lacks.

NEPA lays out some general principles of environmental protection and recognizes that each person should enjoy a healthful environment and that each person has a responsibility to preserve and enhance the environment. But NEPA does not create a duty to protect the environment. Instead, NEPA is content to create a responsibility for project proponents to conduct environmental impact assessments. The precautionary approach goes beyond the impact analysis written into NEPA that only requires that the impact assessment of options be completed; the precautionary approach creates an obligation to consider competing options and to act cautiously whenever possible. This is the responsibility that is currently missing in NEPA and throughout U.S. environmental policy.

The obligation to act cautiously is implied in many environmental statutes. The Clean Air Act permits ambient air standards to be set without actual proof of health hazards, so long as the standard can be defended as a scientifically supportable adequate margin of safety. The Superfund legislation requires that potentially responsible contributors to dumpsites must step forward and engage in remediation. The Endangered Species Act requires that projects not proceed if they would threaten listed species. The concept of unreasonable risk is invoked thirty-eight times in the Toxics Substances Control Act, which states as national policy that adequate data should be developed with respect to the effect of chemical substances and mixtures on health and the environment and that the development of such data should be the responsibility of those who manufacture and those who possess such chemical substances and mixtures. Yet, nowhere in these voluminous laws is there stated a general duty on all persons to act in a prudent and cautious manner where there is a reasonable expectation of harm to the environment. Therefore, the U.S. Congress should amend the National Environmental Policy Act to establish a general duty of precaution toward the environment for all parties. The language needs to be thoughtfully crafted, but it could be similar to the following statement:

The right to enjoy a safe, clean, and sustaining environment requires that persons accept a general duty to take reasonable precautions to protect the environment even in the absence of clear evidence of harm and even where specific regulations do not require such actions.

Such language should be added to the NEPA statement of national policy. It would link the right to a healthy environment with the obligation to protect the environment. It would clarify that there exists a responsibility for precautious action on all persons recognizing that corporations, trusts, associations, states, and municipalities are conventionally covered under this term. It would indicate that the lack of full scientific certainty or knowledge of a specific law could not be used as reason to postpone measures to prevent environmental degradation. Finally, it would create a default provision for restraining environmentally damaging behavior, even where there are no specific regulations.

We may debate for decades the absolute or relative harm any product or action may have on our health and the environment that supports us. Uncertainty will long plague us, and, for many, the issues of safety and risk will rely more on personal beliefs than the results of a few scientific studies. That cannot, and should not, deter us as a nation from acting protectively. Where there are options, we should feel a general duty to act with precaution.

Introduction

TO FORESEE AND TO FORESTALL

When Rachel Carson completed her book, Silent Spring, she dedicated it to Albert Schweitzer who said, Man has lost the capacity to foresee and forestall. . . . He will end up destroying the earth. To foresee and forestall is the basis of the Precautionary Principle. It is the central theme for environmental and public health rooted in the elemental concepts of first do no harm and an ounce of prevention is worth a pound of cure. In its simplest formulation, the Precautionary Principle has a dual trigger: If there is a potential for harm from an activity and if there is uncertainty about the magnitude of impacts or causality, then anticipatory action should be taken to avoid harm. Scientific uncertainty about harm is the fulcrum for this principle. Modern-day problems that cover vast expanses of time and space are difficult to assess with existing scientific tools. Accordingly, we can never know with certainty whether a particular activity will cause harm. But we can rely on observation and good sense to foresee and forestall damage.

We have failed to heed Carson and Schweitzer’s warning. Industrial development increased rapidly following World War II, with little regard for human health or the environment. Growth was considered akin to prosperity, and some small environmental damage was a small price to pay for the benefits of industrialization. Research and legislation developed during the late 1960s and early 1970s acknowledged that there were substantial adverse impacts associated with unlimited growth. With increasing knowledge about the complexities of ecosystems, the human body, and the impacts of various stressors, we have realized that we actually understand much less than we thought we did about these systems.

During the 1970s and 1980s, tools such as risk assessment and cost-benefit analysis were developed to assist decision makers in making more rational decisions about industrial activities and their impacts. However, their incorporation into decision-making structures was based on the misguided belief that humans could fully understand the impacts of their activities on the environment and establish levels of insult at which the environment or humans could rebound from harm. Too much emphasis was placed on the role of science to model and predict harm in extremely complex ecological and human systems. Risk assessment, which was originally developed for mechanical problems such as bridge construction where the technical process and parameters are well defined and can be analyzed, took on the role of predictor of extremely uncertain and highly variable events. The risk-based approach, now central to environmental and public health decision making in the United States, has in part led to a regulatory structure based on pollution control and remediation, rather than fundamental prevention.

The quantitative, risk-based approach to environmental and public health regulation has taken on an importance in government agency operations. It allows agencies to justify and defend their decisions to the courts, businesses, and the public in the guise of objective, unbiased numbers, avoiding mention of the values implicit in decisions affecting public and environmental health. This approach is viewed as the sound science approach to decision making, where decisions are made on the basis of what we can quantify, without considering what we do not know or cannot measure. That is lumped under the category of uncertainty, which can be addressed in a neutral way through additional information and modeling. The risk assessment process, however, is as much policy and politics as it is science. A typical risk assessment relies on at least 50 different assumptions about exposure, dose-response, and relationships between animals and humans. The modeling of uncertainty also depends on assumptions. Two risk assessments conducted on the same problem can vary widely in results.

Current environmental and public health decision-making processes, based primarily on the level of risk, suffer from several limitations, which constrain their ability to identify, anticipate, and prevent potential harm to human health and the environment. Decisions to take action to restrict potentially dangerous activities are often taken after science has established a causal association between a substance or activity and a well-defined, singular adverse impact. Proving causality takes both extensive time and resources. During this research period, action to prevent potentially irreversible human and environmental harm is often delayed in the name of uncertainty and the harmful activity continues. For a variety of reasons, it may not even be possible to demonstrate a causal association in complex human/ecological systems.

For example, even basic knowledge about the impacts of the most widely used toxic chemicals is unavailable. Analysis of the impacts of human activities on health and the environment is wrought with uncertainty. This ignorance leads to an important question for decision makers, How can science establish an ‘assimilative capacity’ (a predictable level of harm from which an ecosystem can recover) or a ‘safe’ level when the exact effect, its magnitude, and interconnectedness are unknown?

Further, regulatory programs often demand the achievement of statistical significance in experimental and observational research. Even though an effect is not significant to a statistician, it still may be significant to the person or community. This laboratory model of science places an emphasis on minimizing Type I errors (incorrectly concluding that there is an effect when one does not exist) and thus unnecessary regulation at the expense of increasing the potential for Type II errors (incorrectly concluding that there is not an effect when there is one), placing humans and the environment in jeopardy. Achieving adequate statistical power (the predictive potential of an experiment) for a study to be considered acceptable is difficult if the number of subjects or effect is small.

Even low level exposure to stressors may cause adverse impacts. These impacts may be impossible to monitor or control. For example, there is growing evidence that some synthetic chemicals may disrupt the hormone system at very low levels of exposure and not at high doses (an inverted U-shaped dose response), with effects happening when exposure takes place during sensitive periods in the development of a fetus. It is virtually impossible to know what level of exposure will affect a fetus or what impacts that exposure will cause.

Science has not begun to address the wide range of physical and chemical stressors to which humans and ecosystems are exposed since it focuses on single chemicals/stressors in single media. If we are ignorant about the impacts of only single human activities on health and the environment, we are even more ignorant about the cumulative effects of many potentially harmful activities.

Finally, risk assessments and other analyses are very time consuming, contentious, and costly. For example, a single risk assessment on a single chemical might take up to five years and cost upwards of $5 million. This excludes the cost of the harm that may be caused by the activity under study. Focusing on opportunities to prevent harm (e.g., using the Precautionary Principle) is a much more cost-effective use of limited resources.

There is a need for decision makers to bridge the gap between uncertain science (and the need for more information) and the political need to take action to prevent harm. As trustees of ecosystem and public health, government agencies have an obligation to prevent harm despite the existence of uncertain impacts. They must consider that there could be large political and economic consequences if they are wrong. The question of what society should do in the face of uncertainty regarding cause and effect relationships is a question of public policy, not science. A decision not to act in the face of uncertainty, to await further scientific evidence, is as much a policy decision as taking preventive action.

HISTORY OF THE PRECAUTIONARY PRINCIPLE

The term Precautionary Principle is relatively new to the national and international environmental policy arena, though the concept has its roots in hundreds of years of public health practice. Even early environmental legislation encompassed a precautionary approach to environmental protection. For example, in the legislative history to Sweden’s first environment act, the Minister of Justice noted that environmental policy should lead to actions in the face of uncertainty and shift the burden of proof of safety to those who create risks.

The principle emerged as an explicit basis of policy during the early 1970s in West Germany as Vorsorgeprinzip or the foresight principle of German water protection law. At the core of early conceptions of this principle in Germany was the belief that society should seek to avoid environmental damage by careful forward-looking planning, blocking the flow of potentially harmful activities. The Vorsorgeprinzip has been invoked to justify the implementation of vigorous policies to tackle river contamination, acid rain, global warming, and North Sea pollution. Implementation of the foresight principle has given rise to a globally competitive industry in environmental technology and pollution prevention in