The Precautionary Principle and the Burden of Proof

1
The Precautionary Principle and the Burden of
Proof

• Naomi Oreskes
• ENVR 102
• Winter 2008

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Do we have to prove the benefit of nature?

• And if something has to be proved, who has the
  burden of proof?
• Those who want to protect nature from damage, or
  those who dont?

3

• 19th century Emerson, Thoreau, Muir
• Early 20th Roosevelt
• Value of nature discussed in qualitative terms
• beauty, character, manhood, connection to sacred
• Didnt think this needed to be proved.
• Not quantifiable, even ineffable.
• How could you put a dollar value on the worth of
  American manhood? Of feeling the hand of God?

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Mid 20th century Different Approach

• Risk assessment
• Cost-benefit analysis
• Ecosystem services
• All attempts to demonstrate value of nature.
• To prove its value in a modern world that
  calculates value in dollar terms. (Fight fire
  with fire)
• To counter criticisms that environmental
  protection isnt worth the cost. (Pollution
  control, but also habitat restoration, nature
  preservation, etc.)

5
Common criticism of CBA costs of regulation are
generally easy to calculate (e.g. scrubber on a
power plant), but the value of something like
clean air is hard to assess.
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CBA is intrinsically biased against regulation,
against environmental protection
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One response Quantify value of public goods,
like clean air, water, beautiful views

• In Del Mar, house with view of ocean costs
  200,000 more than one without.
• Value of ocean view easy to calculate.

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CBA is a tool, can be used in diverse ways.

• Nevertheless, in practice it has often meant
  placing a burden on those who wish to protect the
  environment to demonstrate that the proposed
  protection will be worth the cost.
• Value gained is at least as great as the cost of
  implementation.

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In USA, CBA has been dominant approach

• Particularly in last decade.

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Alternative approach precaution

• Often, environmental harms are hard to predict.
  When potential harms are uncertain, one should
  err on the side of caution.
• Burden of proof should not be on those who think
  there might be harm, but on those who insist
  there wont be.

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Err on the side of caution

• An ounce of prevention is worth a pound of cure.
• A stitch in time saves nine.
• The law of unintended consequences

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Precautionary principle now dominant approach in
Europe What exactly is the principle?
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Wingspread Statement, 1998Science and
Environmental Health Network

• We believe existing environmental regulations
  and other decisions, particularly those based on
  risk assessment, have failed to adequately
  protect human health and the environment, as well
  as the larger system of which humans are but a
  part.

14

• We believe there is compelling evidence that
  damage to humans and the worldwide environment,
  is of such magnitude and seriousness that new
  principles for conducting human activities are
  necessary.

15

• While we realize that human activities may
  involve hazards, people must proceed more
  carefully than has been the case in recent
  history. Corporations, government entities,
  organizations, communities, scientists and other
  individuals must adopt a precautionary approach
  to all human endeavors.

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Therefore it is necessary to implement the
Precautionary Principle Where an activity raises
threats of harm to the environment or human
health, precautionary measures should be taken
even if some cause and effect relationships are
not fully established scientifically.
17
1982 World Charter for Nature, UN General
Assembly

• Activities which are likely to cause
  irreversible damage to nature shall be avoided
  and Activities which are likely to pose a
  significant risk to nature shall be preceded by
  an exhaustive examination their proponents shall
  demonstrate that expected benefits outweight
  potential damage to nature, and where potential
  adverse effects are not fully understood, the
  activities should not proceed.

18
1992 U.N. Framework Convention on Climate Change,
(signed by President George H.W. Bush)

• 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.
• (Article 15)

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European Commission, 2000 "The precautionary
principle applies where scientific evidence is
insufficient, inconclusive or uncertain and
preliminary scientific evaluation indicates that
there are reasonable grounds for concern that the
potentially dangerous effects on the environment,
human, animal or plant health may be inconsistent
with the high level of protection chosen by the
EU".
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The January 29, 2000 Cartagena Protocol on
Biosafety (issue of GMOs)"Lack of scientific
certainty due to insufficient relevant scientific
information shall not prevent the Party of
import, in order to avoid or minimize such
potential adverse effects, from taking a
decision, as appropriate, with regard to the
import of the living modified organism in
question.http//www.cbd.int/biosafety/
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Since 2000, Official Policy of European Union

• Basic idea much older
• Vorsorgeprinzip foresight planning
• German Social Theory 1930s
• Risk prevention
• Ethical responsibility of nations and other
  organizations to avoid harm, including
  anticipating negative effects
• Fallibility technology has unintended
  consequences
• Planning government role in anticipating future
  problems

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Today, associated with six main ideas
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1) Delay is costly, sometimes irreversible

• Preventative anticipation
• Dont delay until the child is dead to go to the
  doctor.
• We dont wait until a flu has reached pandemic
  proportions before trying to develop vaccine.
• Actual example Europe in the 1980s
• Dont wait until forests are all dead before
  acting to stop acid rain

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• 2) Prudence requires ample margin of error,
  especially when stakes are high
• Dont wouldnt kill the penultimate breeding pair
  of polar bears
• You shouldnt allow arsenic in water to approach
  toxic levels.
• You build in a margin of safety
• More important the issue, the larger that margin
  should be.

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• 3) Proportionality
• Dont take on large risks for small gains
• Is driving a big car really worth risking the
  Antarctic?
• Is a small increase in crop yield worth risking
  damaging native plants of a country?
• (Al Gore gold bars v. the whole Earth)

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• 4) Burden of proof
• Should be on those proposing actions that may do
  damage, rather than vice versa (cf. US NEPA)
• Related to point 1, the delay issue when in
  doubt, rely on best available information, even
  if imperfect or incomplete.

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5) Intrinsic rights

• Other species have right to exist, nature is
  intrinsic good
• Therefore, actions should include this
  consideration

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• 6) Differentiated responsibility
• Those who have most impacted environment in past
  have most responsibility now (rich, highly
  industrialized nations)
• Kyoto Protocol Annex I nations.
• U.S. and western Europe (total impact, not just
  current annual, or per capita)
• Created most Greenhouse gases, overall,
  therefore should bear most responsibility.
• Also true for deforestation (cf. Brazil)

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Nearly all signatories agreed this was fair,
logical

• Annex 1 nations benefited the most--indeed, got
  to be Annex 1 nations by burning fossil fuels.
• Therefore should now take most responsibility

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U.S. rejected this.

• Byrd-Hagel Act 1995, rejected any climate treaty
  that did not include developing nations.
• Present President, and Republican
  nominee-apparent take this stand must include
  India and China in any international agreement.
• Argument China is now (2007) 1 producer of
  GHGs.
• ButIndia and China have produced still far fewer
  greenhouse gases overall than we have.
• 25 of Chinas energy use is to produce products
  for export market--almost entirely US and Europe!
  

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Objections to precautionary principle

• 1) Stifles economic growth
• All economic activity involves some environmental
  impact.
• Excessive caution discourages anyone from doing
  anything

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• 2) Stifles innovation, creativity.
• Encourages a kind of worry wart mentality.
• Discourages risk taking.
• Result stodgy, fearful society.
• The Nanny society--always worrying about
  skinning our knees
• Is that what we want?And we might be stifling
  the very innovations that could solve our
  environmental problem, like new energy source

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Stitch in time may save nine, but haste makes
waste

• Acting before the science is in can be counter
  productive.
• Example smog in LA.
• Early regulations actually made science worse.
• Later work explained why. Chemical reactions had
  been misinterpreted.
• Money was wasted, did not achieve desired goal
• Therefore, sacrificing scientific standards
  doesnt get you where you want to be.

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Idea of intrinsic rights makes no sense

• How can a tree have rights?
• And even if it did, what does this have to do
  with precaution anyway?
• People are adding additional principles not
  inherent in the original idea of precaution

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What is precautionary for one person might not be
for another.

• I might argue that the U.S. invasion in Iraq was
  precautionary. Why wait until Saddam attacks us?
• My neighbor argues, that is was no precautionary,
  it was reckless, because there was no imminent
  risk.
• We could have waited for the U.S. inspectors to
  finish their job.
• Depends on how you judge riskand which risks you
  fear more. Risk of Saddam Hussein doing
  something bad, or risk of getting involved in a
  long, difficult, costly, perhaps unjustified war?

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Basic idea of precaution might be clear,
implementing it is not.

• How do you judge imminent risk?
• How do you know if inaction will be more costly
  than premature action?
• How do you judge how much scientific knowledge is
  sufficient to act?
• How do you determine proportionality, when
  different people value different goods
  differently?
• How do you make other nations, individuals, take
  the responsibility you feel they have? Implies
  need for collective governance, Europe accepts,
  USA does not.

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Precautionary principle in action Genetically
Engineered Organisms

• What are GMOs?
• What is the benefit?
• Improved crop yield
• Decreased need for fertilizers, pesticides
• Selective resistance to herbicides (Round-up
  ready soybean)
• Increased nutritional value

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What are the concerns?

• Safety of food supply
• At minimum--risk of allergies
• You are doing things whose consequences are
  unknown
• Safety of environment
• GMO crops get loose, take over
• Especially round-up ready--how do you kill it?
• Impact on non-target organisms. BT corn kills
  butterflies
• Outcrossing. Genes spread to other plants,
  animals.
• Terminator gene solution --gt but

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Concerns (continued)

• Equity
• Seeds are much more expensive than conventional,
• Poor farmers cant afford it
• If terminator genes added, have to buy fresh
  seeds every year, unlike in past.
• So how can this help them?
• Political stability
• Almost all patents held by US and European
  companies
• Do we want a small number of corporations
  controlling global food supply?

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• GMOs are unnatural
• Playing god, messing with creation.
• No good ever comes of that
• Frankenfoods. And we know what happened to Dr.
  Frankenstein.
• Genetic engineering inconsistent with
  stewardship.
• Therefore some Christian groups opposed.

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• Christian Opposition includes
• Christian Scientists
• Church of Scotland, Program in Science, Religion,
  Technology, Disturbs wisdom in natural order of
  things.
• New Zealand, Interchurch Commission on Genetic
  Engineering, we should curb our natural hubris
• Au Sable Institute for Environmental Studies,
  abuse of creation
• Rural Life Committee of the North Dakota Council
  of Churches
• Endorses precautionary principle as appropriate
  form of humility in the development,
  application, and expansion of GMO biotechnology

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The problem of hype

• Argument in favor has been strongly focused on
  feeding worlds hungry.
• Corporations like Monsanto argue humanitarian
  value. Trying to help the world, feed the poor.
• BUTThere is no shortage of total food on earth.
  There is a problem of distribution.
• Experience shows making more food does not
  decreased world hunger. (1950s --gt present)
• Increased yield in US wont feed starving people
  in Africa. And if Africans cant afford seeds,
  there wont be increased yield there either.

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What does the precautionary principle really mean
in practice?
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David Magnus, Professor of Bioethics, Stanford
UniversityRisk Management v. The Precautionary
Principle

• Uncertainty used extensively by corporations,
  most famously tobacco industry, to avoid
  regulation
• Doubt is out product
• Construct agnotology--producing ignorance,
  confusion, by amplifying doubts
• In response, environmentalists and health
  advocates have turned to precautionary principle.
  Response to exploitation of doubt.

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Uncertainty not an excuse for inaction

• Therefore, precautionary principle developed as
  response to industries, states, etc (like
  tobacco) who tried to use uncertainty to prevent
  regulatory action
• Political response to a political reality

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In Europe, used to oppose GMOs

• Interesting Shift Or even a kind of epistemic
  reveral
• Before uncertainty used by corporations to
  stave off regulation (R J Reynolds, Exxon Mobil)
• Now, uncertainty being advocates of regulation of
  GMOs
• We dont know what the harms may be, and we may
  never know. Therefore, we shouldnt do it.

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Wingspread Statement. The precautionary
principle states that

• When (on the basis of available evidence) an
  activity may harm human health or the
  environment, a cautious approach sould be taken
  even if the full extent of harm has not yet been
  fully established. It recognizes that such
  proof of harm may never be possible

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Burden of proof shifted. Power of uncertainty
harnessed to support regulation rather than
oppose it.

• Interesting question Who should bear the burden
  of proof?
• And how do we (as a society, a world) decide?
• And how do we deal with issues like GMOs, or
  GHGs, where actions of one nation can affect
  others?

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Precedents for considering burden of proof

• Criminal law innocent until proven guilty beyond
  reasonable doubt. In this view, we could consider
  GMOs ok unless someone provides evidence theres
  a problem. But presumption of innocence is
  intended to protect citizens from power of state.
  Is this right model for new technologies?
• Difficulty the group most qualified to find
  evidence of problem is the manufacturer, who has
  conflict of interest.

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Alternatives?

• Patent law Inventor has burden to demonstrate
  that invention is novel, and does what it claims
  to do.
• FDA drug manufacturers have burden to
  demonstrate new drug is effective and safe.
• FDA probably closest relevant model, but many
  recent failures.

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Current state of affairs

• US products assumed to be safe unless shown
  otherwise
• Europe, reverse.
• US, regulate products (food, under FDA) but not
  process. Process is seen as scientific research.
• Europe, process subject to precautionary
  principle

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Current state of affairs

• BUT WTO has recently intervened.
• European Union tried to ban import of North
  American beef enhanced by bovine growth hormone,
  US and Canada brought to WTO as unfair trade
  barrier.
• WTO agreed with US, said regulations must be
  science-based (ie burden of proof on regulator to
  demonstrate risk of harm)
• EU refused, was fined 124 million.
• Raises interesting sovereignty issues who are
  WTO to tell Europe what rules and regulations
  they can have? (What if tables were turned?)