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The Precautionary Principle (PP) is
a concept developed in the framework of environmental activities as a basis for environmental regulation, commonly
used not only in international legal instruments but also incorporated into
domestic legislation to prevent
environmental degradation (Applegate, 2010). The Declaration of the 1992 Rio
Conference on the Environment and Development is one of the most influential statements
of the PP as, despite its significance, there is no single commonly accepted definition
of the principle. It stipulates that:

“In
order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. 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” (Rio Declaration, 1992).

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The main idea of the PP is that
instead of waiting for potential risks to materialize, regulators should take
precautionary measures to protect against human activities that could
potentially harm human health or the environment, even if science is not fully
able to prove cause and effect relationships (Salmony, 2005). Therefore, the PP
has made regulators pay attention to issues that hadn’t been previously
addressed due to lack of conclusive scientific evidence, and has generated a
‘margin of safety’ into public decision making (Sustein, 2003).

Based on popular belief that “it is better to be safe than sorry”, the PP can be understood across a broad
spectrum of regulation degrees, from the weakest versions where uncertainty
does not justify inaction, to the strongest versions where uncertain risks
justify action. Authors such as Sustein (2003, 2005) agree that the weakest
versions are not only unobjectionable but very relevant to cope with uncertainty and that it has empowered
regulators to intervene in the market to prevent externalities that could harm
the health and environment. However, there is still a lot of debate about the
application of stronger PP versions.

The strong PP stipulates that if there
is any potential risk, regulation is required to eliminate it even if the
suspicious of harm is small. Such anticipatory risk-averse measures range from
restrictions on an activity to completely banning it. Through this essay it
will be discussed why being precautionary with respect to all possible risks is
not possible nor desirable as everything involves some level of risk, which
can’t be identified with complete certainty because it is determined by
evidence and perceptions. Therefore, the PP (especially in its strong version)
would lead to a disproportionate allocation of limited resources in the
regulation of risks not scientifically supported, and, more important, it would
be an obstacle to development and innovation.

 

Science, fears and
moral values in the regulation of risks

Science has a significant legitimatory capacity because it provides
humanity with the best knowledge of the world, which serves as a rational and
accepted basis for decision making and regulation. Science is also crucial for
identifying, assessing and managing risks. However, as Maguire and Ellis (2005) highlights, science is not
always able to provide irrefutable knowledge on certain topics because of
missing data, controversy on existing data, or even completely ignorance about
a potential harm. And according to Maguire and Ellis, risk analysis and
deliberations occur more commonly in contexts of scientific controversy than in
contexts of complete scientific certainty.

For this reason, the PP urges
regulators not to be ‘hostages’ of scientific certainty and to avoid regulation
paralysis by accepting the best science available. For Sachs (2011) who is an
advocate of the PP, this doesn’t mean that the decisions of regulation will be
completely disconnected from science. In fact, according to him, the Principle
points out that science must at least be developed to the extent that possible harm
can be identified. Nonetheless, what Sachs doesn’t mention is that the even if
regulators agree on precaution, the question about what to do is a purely
political decision that doesn’t require additional scientific evidence, and
could open the door to capricious decisions unconnected with science.

From the legal and economic point
of view, if there is no evidence of potential harms that could be verified,
then there is no basis for restricting an
activity. However, Salmony (2005) argued that there are different types of
evidence: scientific data and personal experience, and often these two have
conflicting claims that require value judgments. When people and science
disagree about a risk it is partly because of differences in facts, but mainly because of differences in perceptions and judgements, which are more
difficult to reconcile.

Sustein (2005) claims that fear is
a social judgement of danger that varies from one society to another, and
states respond to public fears -which may or may not be justified- setting the
‘appropriate’ level of protection against potential harms. In this process, the
selectivity of precautions is inevitable
as no society is highly precautionary with respect to all risks, and as consequence
regulators could end up regulating unfounded risks. But for Feintuck (2005) the
main question is not whether states are precautious against a groundless fear
or a real risk, but are they being precautious to protect what? And for him,
the answer requires not only science but implies the involvement of all the
actors of society to determine and prioritize the values and social
expectations that guide the application of the PP. In this context, it could be
said that what counts as a good reason for regulating
-or not- is a mixture of science, politics, and values. Hence, precaution seems
to act more as a ‘core of moral action’ or an ‘opinion-responsive’
state measure and less as an impartial and objective strategy to prevent
irreversible damage.

On this regard, Peterson (2007)
points out that the weak PP isn’t a ‘general customary rule of law’ but an
approach for the analysis of risks that recognizes the importance of both
science and social priorities, but is pragmatic on the relative weighting of
those factors and on the regulatory responses, recognizing that risks can’t be
reduced to zero. On the contrary, the strong PP acts as a normative claim that
urges policymakers to regulate in response to any indication of harm, ignoring
the differences between scientific evidence and socio-political factors
involved. The problem in both versions (more in the strong version than in the
weak) is that the lobby of interest groups could lead to the PP being applied
in function of the demands of the strongest groups and not necessarily as a
reflection of the ideas of collective interests, and thus technological
development and innovation may end up being regulated without any solid
foundation.

 

The Precautionary
Principle as a barrier to development

Science and innovation are key
drivers for development, necessary to improve the conditions in which people
live, connect and communicate. However, as Applegate (2001) claims, in
capitalist economies, economic efficiency
and proficiency commonly prevails over the respect and protection of human
rights and wellbeing, and greed frequently makes new technologies and
developments dangerous for the health and environment. And, as discussed above,
people’s fears and concerns about harmful business practices legitimize the use
of state power to regulate business. However, Soule (2000) highlights that
precaution is not always a choice between ‘noble’
social and environmental values versus ‘greedy’
commercial and business interest. On the contrary, ‘common good’ values are usually
on both sides of the discussion.

For authors as Sustein (2003; 2005)
and Meyerson (2013), development seeks to make lives easier, healthier and
better, therefore restricting innovation and new technologies could eliminate
significant potential benefits for the environment and health. For Meyerson, the very nature of innovation lies in
non-validate departures from standard practices that usually don’t take place
in the context of a full controlled research study. Taking risks is considered
a fundamental factor in the success of
business, entrepreneurship and innovation (Forbes, 2016). In fact, for Sustein
the PP would have deprived society of significant benefits as aircrafts,
antibiotics, vaccines, and chemical products, and would have generated greater
risks that otherwise would not occur or could be avoided.

However, Dinneen (2013) emphasizes
that the solution is not to abandon regulatory intervention
but to recognize the possible outcomes of each regulatory measure (including
the no-regulation), through the evaluation of risks based not only on its
social acceptability but also on a ‘cost-benefit analysis’ where science has
much to contribute. This would allow finding
what Weiner (2002) calls ‘optimal precaution’ which would make precautionary
regulation itself ‘safer’ because trade-offs are weighed and the overall
negative consequences minimized.

However, Rushton (2007) argued that
the ‘optimal precaution’ is impossible to find if risks are analyzed in isolation from other factors, including the
risks they would ameliorate or the new risks they would create. For Rushton, the strong PP not only neglects
interconnectedness of risks but also can be ethically problematic if a risk
affects different people differently. In this regard Sustein (2003) adds that
regulation might have adverse effects on life and health of the poorest because
it reduces the “opportunity benefits” for them, due in part to the
fact that rich people are abler to adapt or to assume over-costs resulting from
regulation. For Sustein, many of those
who support the PP seek to protect themselves against future risks by ignoring
the interests of those who suffer the greatest deprivation. For example, the ban on DDT is justified in rich
nations but it has a harmful effect in the poorest countries where it is the
cheapest and most effective way to fight
serious diseases like malaria.

Recognizing that development is
desirable and necessary but it would inevitably involve risks, Sachs (2011)
argues that regulators should then allow only new technologies that pose
‘acceptable risks’. But what is ‘acceptable’? how should it be demonstrated?
and who should demonstrate it? For Sachs, the PP redistributes the burden of
scientific uncertainty from the people exposed to the risk to the producers of
those risks, and from the state in their duty to protect people from harm to
the risk-generators in their duty to respect people’s rights. In a
non-precautionary world, risk producers could continue to act “as if”
there was no danger until people or the state could demonstrate that there are
harms.

In fact, Sachs highlights as one of
the great benefits of the PP that it establishes a ‘stop and think’ mechanism
under which the risk-generators bears the burden of quantifying the risks as
well as revealing relevant data to regulators and the public, and thus the
policymakers assume a role of arbiters of risk and benefits in society.
However, Sachs never gives a real reflection on how such ‘stop and think’
mechanism ought to work, and also disregards the fact that shifting the burden
of proof is inefficient, requires a lot of technical professionals to evaluate
the information provided by the risk-generators, involves higher transaction
costs and increases the bureaucracy.

 

Conclusions

The PP has strong moral goals, but its strong version could
be a negative way of promoting them. The strong PP focuses on avoiding a risk
and not on reaching an optimal result, while the weak PP allows a cost-benefit
analysis that recognizes the relevance of the economic and non-economic
considerations of risk regulation, because it acts as a guiding framework for
decision-making that makes it possible to
recognize legitimate economic interests but also take into account moral and
ethical values related to the environment, wellbeing and human rights.

 

The PP starts from the scientific evidence but it is
complemented with social and political deliberations which makes it acts as a
measure of strong moral goals to avoid
potentially harmful business practices and products and not as an objective and
impartial decision-making approach. That’s why it is commonly linked to green
policies, and seen as a way to protect collective values against private
interests.

 

In fact, the PP has challenged the productive economic model
of the ex-post reparation that requires
injuries to the environment and to people to actually take place to be later
compensated through an ex-post grievance
system. This model has been replaced by a precautionary approach that advocates
the identification and management of potential risks for ex-ante prevention. However, the literature has
not yet been able to go beyond the criticism of the PP and propose a
precautionary model that meets the moral objectives of the PP but allows to
overcome the complications, contradictions and obstacles that impose the PP as
understood today, so that it fulfills its function of protecting of irreparable
risks without affecting the advance of innovation and development.

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