Precaution on the European stage

All this is having a profound effect on the character and structure of environmental regulation in Europe. To begin with, the European Commission was content to argue in favour of the "polluter pays" principle, by which it meant that a discharger would have to meet the costs of regulation as imposed, and the "prevention at source" principle, by which the aim was to reduce harm by controlling emissions at the point of occurrence (see Johnson and Corcelle, 1989). The First Environmental Action Programme of the EC Commission already included the statement that "any exploitation of natural resources or of nature which causes significant damage to the ecological balance must be avoided." These two principles, however, were a long way from the concept of precaution as it has evolved in the 1980s.

The first development was to create the notion of air and water quality targets, namely levels of environmental quality that would set yardsticks for individual emissions control. This was superseded by the principle of regional "bubbles" of environmental quality, in which cross-border cooperation would try to establish a common programme of emissions control. Latterly this has involved the application of cross-subsidy payments, allowing the poorer and less efficient plants to be cleaned up by wealthier nations who stand to gain by the improvement in overall environmental quality. (Example: Poland gets payments from West European countries to install desulphurization devices.)

All this is shifting regulation in Europe in three main ways:

1. Towards the concept of a common database and monitoring net work that should be the prime purpose of the future European Community's Environmental Protection Agency.

2. Towards a commitment to best available techniques not entailing excessive costs (BATNEEC), which will push the "state of the art of technology" anywhere on the globe to each industrial sector irrespective of its economic vulnerability, with safeguards for subsidies and providing time for adjustment. In this regard, the NEEC component of BATNEEC, which some regard as a watering-down of the "polluter pays" principle, will essentially lose its force. Because precaution is advancing as a concept in contemporary environmental management, so NEEC is weakening.

3. Towards an international environmental regulatory institution, together with "environmental inspectors," who will have powers to investigate any failure to comply at the national level on the basis of a reasonable complaint from an individual or a group of people.

In the European community the BATNEEC principle is now effectively in place, most particularly for toxic and hazardous substances and processes contained in the Black, Grey and Red Lists as defined by member states, but more generally for awkward industrial processes. The cost justification element is steadily being restricted. If the technology is available, or can be developed in a reasonable time, it should be deployed. This gives less room for manoeuvre for the regulatory agencies in negotiating compliance. Thus, precaution is beginning to standardize the regulatory process and provide a basis for uniform and comparative scrutiny. The degree to which interested parties have a right to know with regard to regulatory details, however, still varies from one member state to another. Even in the United Kingdom, where secrecy is officially decreed, there is now much more openness than there once was. Yet progress is slow and far from complete (Birkenshaw, 1992).

The "European Environmental Agency" at the time of writing is still stalled owing to political argument. Ostensibly the problem lies in the lack of agreement amongst member states as to the location of the new agency. But it has to be added that few countries, least of all the United Kingdom, have environmental monitoring and state-ofenvironment reports of sufficient quality and clarity to meet the needs of this new agency. The agency will, however, be created, and when it begins work it will help to standardize the state of environmental reporting in the member states, and generally upgrade the quality of monitoring and data interpretation. This is very much in line with the steadily evolving international application of the principle of precaution. By contrast, the introduction of some sort of environmental ombudsman in the Community, specifically aimed at upgrading compliance with regulating principles, is still some way off. But as the notion of a "European Social and Environmental Chapter" gains ground, so it is more than likely that developments in citizen environmental rights will follow.

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