Why U.S. Environmental Protection Should Pursue the Precautionary Principle

Dec 5

Dec 5 Why U.S. Environmental Protection Should Pursue the Precautionary Principle

As governments try to grapple with enormous, science-based global issues like climate change, the efficacy of environmental protection laws and regulations are increasingly being examined. Most western states agree that risk management policy dealing with scientific issues like the environment should be evidence-based, meaning all available scientific evidence is considered in the drafting process. Where governments differ is where there is incomplete data for there to be a scientific consensus from which to base laws and regulations, where there’s a lack of agreement among the scientific community over the potential adverse effects of the issue in question, or where the potential harms are known but cause-effect relationships have not been established. In these situations, the precautionary principle comes into play.

What is the precautionary principle?

Designed to deal with the inevitability of uncertainty that leaves governments dealing with scientific issues without a definite scientific consensus from which to make evidence-based decisions, the precautionary principle is a core principle of European Union environmental law, enshrined in Article 191(2) of the Treaty on the Functioning of the E.U. The ‘principle’ of a precautionary approach is defined in the 1992 Rio Declaration on Environment and Development, which states, ‘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 deregulation’. While usually discussed in the context of environmental protection laws, the precautionary principle can be applied to virtually all areas of regulation where science is involved and an evidence-based policy is preferred, including public health, emerging technologies, biodiversity management and conservation.

E.U. vs U.S. environmental policy

Fundamentally, the E.U. has enshrined a ‘better safe than sorry’ approach by codifying the precautionary principle as part of its environmental policy. Article 191(2) states that ‘preventative action should be taken, that environmental damage should as a priority be rectified at the source and that the polluter should pay’. As Jonathan Weiner and Michael Rogers argue, the U.S. in fact exercises a more stringent precautionary approach than the E.U. in the regulation of certain issues, such as in new drug approval and particulate air pollution. However, unlike the E.U., the U.S. has no official policy of defaulting to the precautionary principle where uncertainty exists, meaning the degree of precaution often depends on the issue and on the regulating body. For example, the U.S. Department of Commerce officially opposes the precautionary principle, ascribing it to ‘radical environmentalists’ and instead advocates for policy based on ‘sound science, cost-benefit analysis and risk assessment’. However, critics like Nicholas Ashford argue that cost-benefit analysis overly privileges corporations and financial gains associated with potentially risky products or activities, and that the requirement for risk assessments and ‘sound science’ allows regulations to be delayed or discarded entirely because of a lack of strong scientific evidence proving ‘significant risk’.

One area that is widely viewed to be underregulated, leading to potentially devasting consequences on human health and the environment, are chemicals that the U.S. Environmental Protection Agency (EPA) is required to review under the 1976 Toxic Substances Control Act. Prior to 2016, the Toxic Substances Control Act required the EPA to choose the ‘least burdensome’ regulation for chemicals, considering public health and the impact on the manufacturer, and placed burden of proof on the EPA to show the chemical posed ‘unreasonable risk’ to public health and/or the environment. Both these legal requirements significantly handicapped the EPA’s ability to keep toxic chemicals off the market. In 2016, President Barack Obama signed into law the Frank R. Lautenberg Chemical Safety Act, designed to address many of these fundamental flaws in the Toxic Substances Control Act by granting the EPA the authority to require testing of every new chemical entering the market and to ban chemicals if they’ve been shown to be risks to the environment or human health. Yet Veena Singla, Patrice Sutton and Tracey Woodruff argue that the new ‘systematic review’ framework the EPA has adopted in response to the new law is ‘systematic in name only’ and risks grossly underestimating health risks and allowing unsafe chemical exposures because it allows epidemiological studies to be excluded from consideration if the method of selecting participants is not properly detailed in the study’s report. This and the lack of a coherent and transparent method of evaluating chemicals points to the continued shortfall of this law’s protection of human health and the environment.

The way forward

Adopting the precautionary principle in U.S. chemical regulation would create a safer world for people and the environment by reversing the burden of proof onto the chemical’s manufacturer, which would have to prove the chemical is not hazardous before it is brought to the market, rather than the EPA having to play catch up and regulate the chemical after it has already been made available for use. The ‘evidence-based’ approach works well in situations where scientific consensus is available, and should remain the default, as it is both E.U. and U.S. environmental protection. But U.S. environmental laws and regulations are currently inadequate for dealing with risks where the science involves uncertainty. U.S. policymakers fail to recognise the true nature of science, which is that it is rarely if ever definite, even when ‘evidence-based’, and that consensus is constantly evolving. As environmental issues become increasingly more complex in the 21st century, the U.S. should adopt its environmental laws to account for increased uncertainty in scientific consensus and in doing so extend further environmental protections for the environment and for its citizens.