History of the precaution principle

The notion of foresight, or Vorsorge, first appeared in the public debate in the Federal Republic of Germany in the early 1970s. This was a period of social democratic consensus over both a social market economy and social welfare policy. It was marked by a desire to create corporatist relations between government, industry, and the trade unions (Weale and O'Riordan, 1991). In developing its environmental programme, the Social Democrat-Free Democrat coalition government propounded four basic principles of environmental policy:

- The polluter pays.
- A common burden where it is impossible to identify the cause of damage.
- Cooperation between the main parties concerned. International cooperation for transboundary problems.

In establishing these four principles, the then Interior Minister in charge of environmental policy argued that the protection of the environment ought not to react to manifest damage. Rather, it should seek to prevent future damage by means of planning and precaution. In promoting this concept, the government was linking environmental protection to the efficient and prudent management of an economy and a society in which pro-active planning was a key ingredient.

There were three additional aspects to the original German interpretation of precaution. These were the application of the state of the art of technology (Stand der Technik) to protect environmental systems as a whole from harmful effects. So the German concept carried with it both a technology-forcing component and a belief that proactive planning should be geared to the maintenance of ecological health, not just human health. The third characteristic of precaution was the inclined shift of the burden of proof onto the would-be damager, rather than the putative victim. Precaution means in effect, then, that one is guilty until proven innocent when tampering with the environment in manifestly risky ways.

Precaution thus carried both a technical efficiency element and a bioethic, the protection of the intrinsic rights of natural systems to be allowed to operate with the minimum of molestation. Two distinguished German lawyers have expanded further on the meanings of precaution (Rehbinder, 1988; Von Moltke, 1988). Rehbinder cites five main themes within which the precautionary principle may be applied:

1. Prevention of future damage, even when it may arise indirectly from certain sources. Prevention becomes an objective in its own right.

2. Avoidance of conflict that would arise if stressful conditions were knowingly allowed to continue. Avoidance becomes a strategic management tool.

3. Minimization of risk where causes and consequences are unknown or where valued environmental resources or assets are in potential danger. Risk is a metaphor for unknowable but potential danger.

4. Protection of the assimilative capacity of natural systems for absorption, assimilation, or restoration, thereby ensuring that there is a cost-effective "natural" way of managing environments in the longer term. This is akin to the notion of a buffer, or hedge against uncertainty.

5. Best practice integrated management to create the least-cost environmental outcomes across all sectors of emissions - land, air and water- and by sound management "up the pipe," or just at the point of emission. Precaution thus takes on the role of environmental and social auditor.

Explicit in Rehbinder's interpretation of precaution, therefore, is a fundamentally fresh approach to environmental management. It should be based on holistic views of the functioning of natural processes. It should address integrated approaches to planning and assessment. It should demand comprehensive auditing in industrial management, product design, and wasterecovery practices, so that the least-damage outcome is pursued throughout the complete management envelope. And it should be sensitive to future needs, that is, to the capacity of natural systems and human societies to absorb and cope with unacceptable environmental stress under almost any condition of an economy or social setting.

These points were made clear in the 1986 Guidelines on Environmental Precaution published by the German Federal Government. These guidelines emphasize the justification for state (or public) intervention in a social market economy in the cause of environmental safety. The three overruling principles are:

1. Protection from manifest danger.

2. Avoiding risks to the environment even when they cannot be fully demonstrated.

3. Prospective management of both economy and environment in order to retain the integrity of the natural basis of life for the future.

What is evident here is that even best practice is insufficient. There has to be a spur for even greater effort. That comes in the form of strict environmental quality standards for air, water, and land, and ultimately for whole regions. On this basis the complementary principie of critical load has become established. This is a calculation of the tolerance of the most vulnerable ecosystem to any mix of pollutants so as to create a natural limit to the interference with the functioning of ecosystems.

How far the critical load principle can be taken, however, remains a matter of some speculation. It relies on intensive monitoring, scientific prediction and verification, and modelling of tolerance, vulnerability, and sensitivity of systems that in general are still very poorly understood. Taken to its logical limits, critical load would set a punishing limitation on emissions and environmental alteration. In principle, critical load even sets a requirement that damage should be zero.

According to a review of the critical load principle by Ramchandani and Pearce (1991), this is not applied to any economic calculus or willingness-to-pay function: it is assumed as a given. Thus for critical load to have operational meaning it should be related to perceptions about possible damage and precaution. This in turn relates to how far judgements are made about the resilience or vulnerability of natural systems and human coping strategies. Hence the significance of the criticality arguments raised at the outset. Depending on these judgements, any assessment of costs and benefits will vary greatly, and yet quite legitimately. It is this relationship that will give critical load its meaning in both scientific and policy terms and ultimately in economic analysis.

In this sense, therefore, critical load couples three powerful notions in contemporary environmental management into a unity. These are:

1. The environmental audit of policy, programme development, and individual projects, as well as of the sectors of economic activity and of industrial enterprises. The audit is a comprehensive account of the environmental "draw" of a proposed policy on economic activity from onset to completion. It would look at the implications for natural systems, resource availability, emissions reduction, waste recycling, and impact on vulnerable areas and sectors of society. No one has yet undertaken such a complete audit, but interest in the idea is growing.

2. The strict liability principle through which any agent altering environmental conditions in the future would be liable to pay compensation for any affected parties or natural systems, even if best practice and appropriate regulatory rules were being followed. This is a particularly burdensome requirement. It has already emerged in the field of waste management, and may well extend to other areas of environmental policy before long.

3. The public trust doctrine through which any agent causing minimal, but necessary, damage to environmental integrity or social well-being must compensate the losses by equivalent investments offsetting the damage. This could, for instance, apply to the planting of trees to absorb the carbon dioxide that a new fossil-fired power station would emit into the atmosphere.

So we see that underlying the principle of precaution are profound, and possibly radical, approaches to environmental accounting, auditing, and management that are as yet largely untried.

Having noted this, the application of the precautionary principle will create many difficulties for an industrial society seeking a more harmonious relationship with its natural environment. The critical load approach has been criticized for its scientific naively in the face of prevailing ignorance over the functioning and adaptability of ecosystems (Ramchandani and Pearce, 1991). As already mentioned, however, such a judgement rests on certain perceptions of resilience and criticality, perceptions which are by no means value-free.

The strategy of '`best available techniques not entailing excessive costs" (BATNEEC), now accepted practice in many European Community member states, avoids any coherent and consistent economic and technical rules as to what constitutes "excessive." Similar production functions for emission reductions are almost as unclear as the likely environmental gains from the increase in BAT. It is apparent that the economics of precaution are still at a very nascent stage. This is why more care will be needed, via industrial casestudies, to examine how far data gaps affect managerial decisions on the relative cost-effectiveness of environmental protection measures. This will be a tiresome yet necessary quest. The objective in harmonizing future industrial metabolism with environmental processes must be to ensure that the precaution principle operates through a phase of cost-effectiveness analysis allied to a substantially upgraded metascience of regional environmental functioning. Carefully thought-out examples from good industrial practice should be a higher priority for future research.