Environmental protection and the "precautionary principle": A response to scientific uncertainty in environmental management

Environmental and Planning Law Journal

Volumn 14, Issue 1, 1997, Pages 52-69

  Gullett, Warwick ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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EID: 0002611617     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (158)

1. Trail Smeller Arbitral Tribunal Decision (United States v Canada) (1941) 35 AJIL 684.
2. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
3. Corfu Channel Case (United Kingdom v Albania) J19491 ICJ Reports 4. D R Rothwcll and B Boer, "From the Franklin to Berlin: The Internationalisation of Australian Environmental Law and Policy" (1995) 17 Syil LR 242 at 248. Since the early 1970s, international environmental law has also dispensed with the need to establish direct and tangible injury to the territory of another state. Conventions and international resolutions now recognise the obligation to prevent harm to the global commons (areas beyond the limits of national jurisdiction). See, eg, Stockholm Declaration on the Human Environment, Principle 21-UN Doc A/Conf48/14 Rev 1,16June 1972, reproduced in (1972)
4. International Legal Materials (ILM) 1416.
5. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
6. P W Bimie and A E Boyle, International Law and the Environment (Clarendon Press, Oxford, 1992), p 97. For example, the United States invoked "scientific uncertainty" regarding the causation of acid rain by specific pollutant emissions as a reason for non-compliance with remedial measures. Likewise, in the United Kingdom, authorities used the lack of "certain knowledge" that acid rain is responsible for tree deaths and lake acidification to justify continuing power station emissions-G Hand], "Environmental Security and Global Change: The Challenge to International Law" (1990) Ybk Int'l Environmental L 3 at 22; S Yearly, "Green Ambivalence About Science: Legal-Rational Authority and the Scientific Legitimation of a Social Movement" (1992) 43 British Journal of Sociology 511 at 524.
7. J Chamey, "Third State Remedies for Environmental Damage to the World's Common Spaces" in F Francioni and T Scovaz/. i (eds). International Responsibility for Environmental Harm (Graham & Trotman, London, 1991), p 164.
8. However, some treaties do provide for strict liability, such as the 1972 Convention on International Liability for Damage Caused by Space Objects. See also Principle 11 of the proposed legal principles for environmental protection and sustainable development adopted by the World Commission on Environment and Development (WCED) report. It purports to impose strict liability on states by requiring that they provide compensation "should substantial transboundary harm occur even when the activities were not known to be harmful at the time they were undertaken"-WCED, Our Common Future (Oxford University Press, Oxford, 1987) (Brundtland Report).
9. J McLoughlin and E G Bellinger, Environmental Pollution Control: An Introduction to Principles and Practice of Administration (Graham & Trotman, London, 1993), p 165.
10. See A Wildavsky, But Is it True? A Citizen's Guide to Environmental Health and Safely Issues (Harvard University Press, Cambridge, Massachusetts, 1995), p 431.
11. See A Goudie, "Environmental Uncertainty" (1993) 78 Geography 137; R Dovers and J W Handmer, "Ignorance, the Precautionary Principle, and Sustainability" (1995) 24 Ambio 92; and T O'Riordan and A Jordan, "The Precautionary Principle in Contemporary Environmental Politics" (1995)4 Environmental Values 191.
12. See generally R Albury, The Politics of Objectivity (Dcakin University Press, Victoria, 1983, revised reprint 1988); A Nandy, "The Pathology of Objectivity" (1983) 13 The Ecologist 202; and D Shelton, 'The Impact of Scientific Uncertainty on Environmental Law and Policy in the United States" in D Freestone and E Hey (eds). The Precautionary Principle and International Law: The Challenge of Implementation (Kluwer Law International, The Hague, 1996), p 209.
13. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
14. T Jackson and P J Taylor, "The Precautionary Principle and the Prevention of Marine Pollution" (1992) 7 Chemistry and Ecology 123; N Myers, "Biodiversity and the Precautionary Principle" (1993) 22 Ambio 74 at 75.
15. Normally understood to be the amalgam of the known probability or chance of an event occurring and the seriousness of its consequences.
16. An event with an unknown probability.
17. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
18. J Cameron, "The Precautionary Principle-Core Meaning, Constitutional Framework and Procedures for Implementation" (1993), paper presented at the Precautionary Principle Conference, Institute of Environmental Studies, University of New South Wales, September 1993, p 23.
19. For example, fears concerning Indonesia's plans to construct 12 nuclear power plants in areas prone to earthquakes and volcanic activity are dismissed as baseless by Indonesian authorities. The event of an accident occurring is described as "unlikely. " See L Murdoch, "Study Finds Java N-Plant a Threat" (The Age, Melbourne, 22 May 1996), p 6; and C Hamilton and L Williams, "Asia's Worst Nightmare: Nuclear Cataclysm" (The Age, Melbourne, 14 June 1996), P 15.
20. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
21. J Cameron and J Aboucher, "The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment" (1991) 14 Boston College Int'l and Comparative LR 1 at 20.
22. T Beer and F Ziolkowski, Environmental Risk Assessment: An Australian Perspective (1995) (Commonwealth of Australia. Environment Protection Agency, Supervising Scientist Report 102, Canberra, 1995), p 93.
23. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
24. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
25. This phrase was coined by Hardin in his seminal 1968 paper. He used a now famous parable of herdsmen knowingly overstocking the commons because, for individual herdsmen, this was economically "rational"-G J Hardin, "The Tragedy of the Commons" (1968) 162 Science 1243.
26. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
27. C Perrings, "Reserved Rationality and the Precautionary Principle: Technological Change, Time and Uncertainty in Environmental Decision Making" in R Costanza (ed). Ecological Economics: the Science and Management of Sustainability (Columbia University Press, New York, 1991), p 164.
28. Boehmer-Christiansen argued that the Vorsorge concept goes much further than its rough English translation and also embodies notions of ethical responsibility and good husbandry-S Boehmer-Christiansen, "The Precautionary Principle in Germany-Enabling Government" in T O'Riordan and J Cameron (eds). Interpreting the Precautionary Principle (Earthscan Publications Ltd, London, 1994), p 38.
29. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
30. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
31. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
32. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
33. UN GA Res 37/7, 9 November 1982, reproduced in (1983)
34. ILM 455.
35. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
36. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
37. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
38. Examples include the Convention for the Prevention of Marine Pollution from Land-Based Sources (1989); the Oslo Commission decision in relation to the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (1989); the Convention for the Protection of the Mediterranean Sea against Pollution (1989); the Nordic Council's Conference on Pollution of the Seas (1989); the Baltic Sea Convention (1992); and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992).
39. Basel Convention or the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989), Art 4(2)(e) and (g), reproduced in (1989) 28 ILM 657.
40. Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Afriea(I991), Art 4(3Xf), reproduced in (1991) 30 ILM 773 Agenda 21, Ch 22, para 22.5(C) (1992).
41. United Nations Framework Convention on Climate Change (1991), Art 3(3), reproduced in (1992) 31 ILM 849.
42. Montreal Protocol to the Vienna Convention, for the Protection of the Ozone Layer, Preamble (1987), reproduced in (1987) 26 ILM 1550.
43. Convention on Biological Diversity, Preamble (1992).
44. Draft Convention on the Conservation and Management of Straddling Fish Stocks on the High Seas and Highly Migratory Fish Stocks on the High Seas, Arts 4 and 5 (1993).
45. Beigen Declaration on Sustainable Development, Art 7 (1990).
46. Bangkok Declaration on Environmentally Sound and Sustainable Development in Asia and the Pacific, para 19 (1989).
47. Maastricht Treaty Revision to the Treaty on European Union, Art 130(R)(2); (1992) 31 ILM 247.
48. Rio Declaration on Environment and Development, Principle 15, reproduced in (1992) 31 ILM 874.
49. UN Doc A/Conf 151/5/Rev 1, reproduced in (1992) 31 ILM 874.
50. The principle is also listed as one of nine fundamental principles for guiding state conduct in the Draft International Covenant on Environment and Development (1995). This covenant is likely to become the leading international environmental policy document.
51. J S Gray, "Statistics and the Precautionary Principle" (1990) 21 Marine Pollution Bulletin 174.
52. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
53. E Christie, "The Eternal Triangle: The Biodiversity Convention, Endangered Species Legislation and the Precautionary Principle" (1993) 10 EPLJ 475 at 480.
54. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
55. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
56. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
57. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
58. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
59. A R D Stebbing, "Environmental Capacity and the Precautionary Principle" (1992) 24Marine Pollution Bulletin 287 at 288.
60. Trail Smelter Arbitral Tribunal Decision (United States v Canada) (1941) 35 AJIL 684.
61. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
62. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
63. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
64. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
65. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
66. L Gündling, "The Status in International Law of the Principle of Precautionary Action" (1990) 5 Int'l J of Estaurine and Coastal Law 23 at 26.
67. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
68. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
69. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
70. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
71. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
72. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
73. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
74. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
75. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
76. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
77. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
78. D Hughes, "The Status of the 'Precautionary Principle' in Law: R v Secretary of Slate for Trade and Industry ex parte Duddridge" (1995) J of Environmental L 224 at 238.
79. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
80. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
81. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
82. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
83. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
84. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
85. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
86. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
87. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
88. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
89. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
90. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
91. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
92. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
93. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
94. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
95. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
96. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
97. Quoted in F R H Jones, Fisheries Ecologically Sustainable Development: Terms and Concepts (Institute of Antarctic and Southern Ocean Studies, University of Tasmania, Hobart, 1994), p 13.
98. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
99. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
100. HM Govt, Sustainable Development: The UK Strategy (Cm 2426, HMSO, 1994), reproduced in Department of the Environment (UK), A Guide to Risk Assessment and Risk Management for Environmental Protection (HMSO, London, 1995), p 41.
101. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
102. Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR Convention) (1993), Art 2(2Xa), reproduced in (1993) 32 ILM 1069.
103. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
104. Hague Declaration on the Protection of the North Sea (1990).
105. Oslo Commission decision in relation to the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (1989).
106. R C Earll, "Commonsensc and the Precautionary Principle-An Environmentalist's Perspective" (1992) 24 Marine Pollution Bulletin 182 at 184.
107. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
108. The "no regrets" doctrine permits action in response to uncertainty only when it is certain that there will be other benefits, such as reductions in health risk. Australian governments have concentrated on "no regrets" actions in relation to the first stage response to the National Greenhouse Response Strategy (December, 1992), which is the primary vehicle meeting Australia's commitments under the Framework Convention on Climate Change (June, 1992)-Intergovernmental Committee on Ecologically Sustainable Development, Progress in Implementing the National Greenhouse Response Strategy and Issues to be Considered in the 1996 Major Review of the NGRS (Commonwealth of Australia, Department of the Environment, Sport and Territories, Canberra, 1995), p 8.
109. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
110. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
111. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
112. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
113. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
114. Environment Protection Agency, National Pollutant Inventory-What it means for you (Canberra, 1996).
115. Reproduced in (1985) 26 ILM 1516. See also the preamble of the 1987 Montreal Protocol to the Vienna Convention (reproduced in (1985) 26 ILM 1550) which expressly adopted a precautionary approach.
116. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
117. The IGAE set up a framework for improved environmental management throughout Australia. It purports to provide a mechanism to facilitate a co-operative national approach to the environment, better definition of the roles of the respective governments, greater certainty in decision-making and better environmental protection. However, support for the Agreement has appeared to wane in recent years.
118. Clause 3.1.
119. Commonwealth of Australia, National Strategy for Ecologically Sustainable Development (December, 1992), P 8.
120. The principle is also contained in the Ozone Protection Act 1989 (Cth) by way of the inclusion in Sched 3 of the Montreal Protol on Substances that Deplete the Ozone Layer.
121. Section 30(2)(c).
122. Section 10(l)(b)(iv).
123. R Harding and L Fisher, "Defining the Precautionary Principle" (1994) 18 Mining Review 24 at 26.
124. The State Owned Corporations Act 1989 (NSW), s 8(1)(c).
125. Fisheries Management Act 1991 (Cth), s 3(l)(b).
126. Endangered Species Protection Act 1992 (Cth), ss 32(3)(c), 34(3)(c), 60, 70, 81.
127. Natural Resources Management (Financial Assistance) Act 1992 (Cth), s 3(2)(b).
128. Land Use Planning and Approvals Act 1993 (Tas). Sched I.
129. WalerBoard (Corporatisation) Act 1994 (NSW), ss 21(1)(b), 22(3)(∂,), Sustable Energy Development Act 1995 (NSW), s 4(c).
130. Threatened Species Conservation Act 1995 (NSW), ss 4(1), 97(1)(e), I40(2)(b); and Waste Minimisation and Management Act 1995 (NSW), ss 3(2). 8(5), 17(c), among others, fall into this category.
131. (1993) 81 LGERA 270. The principle has been considered, hut not commented upon, by the Federal Administrative Appeals Tribunal in Queensland Nickel Management Pty Ltd v Great Barrier Marine Park Authority (1992) 16 AAR 319, and the Queensland Planning and Environment Court in GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342. Also, in Simpson v Ballina Shire Council Peariman J of the New South Wales Land and Environment Court took the principle and the IGAE into account in dismissing the applicant's appeal against the refusal by the council of their development application. His Honour held on the balance of probabilities that the "proposed subdivision would cause a significant adverse impact on the local environment" (unreported, NSW Land and Environment Court, 31 March 1994).
132. (1993)81 LGERA 270 at 282.
133. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
134. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
135. Leatch was considered by the High Court in R v Secretary of State for Trade and Industry.
136. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
137. (1994) 84 LGERA 397.
138. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
139. Unreportcd, NSW Land and Environment Court, 10 November 1994.
140. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
141. Unreportcd, Gallen J, 27 November 1995.
142. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
143. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
144. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
145. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
146. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
147. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
148. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
149. Minister for Immigration and Elhnic Affairs v Teoh (1995) 63 CLR 273 at 287-288 per Mason CJ and Deane J; at 298303 per Toohey J; at 303-305 per Gaudron J.
150. G Bates, "Editorial" (1994) 11 EPU 251 at 253.
151. Unrcported, Supreme Court of the Northern Territory, 24 March 1995.
152. It has been argued that the need to release water owed much to the inadequacies of the Environmental Impact Statement and environmental management plan prepared prior to construction of the mine. See C Christophcrsen and M Langton, "Allarda!" (1995) 17 Arena Magazine 28.
153. Unreported, Supreme Court of the Northern Territory, 23 March 1995, p 2.
154. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
155. Difficulties also arise due to the fact that production of evidence is itself a costly business which places a disproportionate burden on litigants who do not have "deep pockets. "
156. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
157. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
158. R J Fowler, "Environmental Impact Assessment: What Role for the Commonwealth? An Overview" (1996) 13 EPU 246.