The Precautionary Principle and the Burden of Proof

1. The Precautionary Principle and the Burden of Proof Naomi Oreskes ENVR 102 Winter 2008

2. 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 don’t?

3. 19th century: Emerson, Thoreau, Muir Early 20th: Roosevelt Value of nature discussed in qualitative terms: beauty, character, manhood, connection to sacred… Didn’t 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?

4. 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 isn’t 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.

6. CBA is intrinsically biased against regulation, against environmental protection

7. 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.

8. 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.

9. In USA, CBA has been dominant approach Particularly in last decade….

10. 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 won’t be.

11. 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

12. Precautionary principle now dominant approach in Europe What exactly is the principle?

13. 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.”

16. “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)

19. 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".

20. 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/

21. 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

22. Today, associated with six main ideas

23. 1) Delay is costly, sometimes irreversible “Preventative anticipation” Don’t delay until the child is dead to go to the doctor. We don’t wait until a flu has reached pandemic proportions before trying to develop vaccine. Actual example: Europe in the 1980s Don’t wait until forests are all dead before acting to stop acid rain

24. 2) Prudence requires ample margin of error, especially when stakes are high • Don’t wouldn’t kill the penultimate breeding pair of polar bears • You shouldn’t 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.

25. 3) Proportionality • Don’t 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)

26. 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.

27. 5) Intrinsic rights • Other species have right to exist, nature is intrinsic good • Therefore, actions should include this consideration

28. 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)

29. 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

30. 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. • But…India and China have produced still far fewer greenhouse gases overall than we have. • 25% of China’s energy use is to produce products for export market--almost entirely US and Europe!

31. Objections to precautionary principle 1) Stifles economic growth All economic activity involves some environmental impact. Excessive caution discourages anyone from doing anything

32. 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

33. 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 doesn’t get you where you want to be.

34. 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

35. 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 risk…and 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…?

36. 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.

37. 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

38. 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 --> but…

39. Concerns (continued) • Equity • Seeds are much more expensive than conventional, • Poor farmers can’t 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?

40. 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.

41. 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

42. The problem of hype… Argument in favor has been strongly focused on feeding world’s hungry. Corporations like Monsanto argue “humanitarian” value. Trying to help the world, feed the poor. • BUT…There 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 --> present) • Increased yield in US won’t feed starving people in Africa. And if Africans can’t afford seeds, there won’t be increased yield there either.

43. What does the precautionary principle really mean in practice…?

44. David Magnus, Professor of Bioethics, Stanford University“Risk 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.

45. 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

46. 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 don’t know what the harms may be, and we may never know. Therefore, we shouldn’t do it.

47. 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…”

48. 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?

49. 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 there’s 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.

50. 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….