WHERE IS THE PRECAUTIONARY PRINCIPLE?
Our environment has a potentially powerful ally in a convention signed in Rio in 1992 by the leaders of many countries including the UK, representing over 98% of the world's population - The United Nations Convention on Biological Diversity.
At its heart is Principle 15, which states that:
'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.'
Rio was followed by the UN OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, which the UK signed, and which also incorporated a commitment to adopt a precautionary approach.
'Preventive measures are to be taken when there are reasonable grounds for concern that human activities may bring about hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship.
A lack of full scientific evidence must not postpone action to protect the marine environment.
The principle anticipates that delaying action would in the longer term prove more costly to society and nature and would compromise the needs of future generations.'
This rational and wise approach is called the Precautionary Principle. Unfortunately our political leaders often seem to ignore it.
The UN describes the Convention on Biological Diversity (CBD) as an international legally-binding treaty with three main goals: The conservation of biodiversity, the sustainable use of biodiversity, and the fair and equitable sharing of the benefits arising from the use of genetic resources. Its overall objective is to encourage actions which will lead to a sustainable future.
Another principle agreed at the Rio 'Earth Summit' was that polluters should pay. These principles have been incorporated into EU Directives and UK law, but when Britain leaves the EU our Government seems likely to try to quietly drop them from the statute book. This process has started already.
The Precautionary Principle matters because it is common for national agencies and Local Government planning departments to face decisions about developments when they have no certainty about their impacts on the environment - exactly when the Precautionary Principle should apply. They are often reluctant to apply it.
The situation I know most about is salmon farming, Scotland's most polluting industry of the sea, that also releases billions of sea lice larvae which harm wild salmon and sea trout, both protected species in serious decline.
Apart from inside a very few Special Areas for Conservation for salmon, Local authorities are responsible for protecting wild salmonids at sea from the adverse impacts of fish farming. This is supposed to be factored in when the councils' planners are deciding whether new or expanding salmon farms should be given planning permission, but the planners lack the expertise to make these decisions, so they seek advice from Marine Scotland (the pro-fish farming agency of the Scottish Government) and the local Salmon Fishery Board.
The Councils usually ignore the Board’s advice, even when it objects on the grounds that particular salmon farms have a history of releasing huge quantities of sea lice, and that many farms are in waters used year-round by wild sea trout, and seasonally be wild salmon.
Marine Scotland's advice seems to be given greater weight. It acknowledges that sea lice from salmon farms do have an impact on wild fish, but MS also says that it cannot quantify the significance of that impact. This fence-siting frustrates the Local Authorities but it gives them just enough leeway to approve virtually every salmon farm application, even though wild salmonids populations are crashing.
Thanks to MS's non-committal advice, Argyll and Bute Council has even stated that it lacks enough information to apply the precautionary principle, which is of course exactly when the precautionary principle should be applied!
This is especially important at the moment because the Scottish salmon farming industry is aiming to double its capacity by 2030. That means there will be an inevitable doubling of the pollution released from its open nets, and potentially a doubling of the sea lice released as well. The Scottish Government is supportive of these expansion plans.
I was one of a number of representatives of Scottish coastal community groups that met Marine Scotland in July and again in October. We asked them who should decide on the significance of this impact, as they cannot, and if no one can decide, then shouldn't the precautionary principle apply?
Marine Scotland will not answer this question.
At present no Government agency will take responsibility for protecting wild salmonids from sea lice released by fish farms, and no one will answer the question about why the precautionary principle is not being applied.
We are meeting the Scottish Cabinet Secretary for the Environment in a couple of weeks time, and will ask her whose job it is to decide. We will be really puzzled if she says it is not her job either.
The loss of wild salmonids matters a great deal locally, to jobs, to leisure and to the ecosystem, even if their loss does not significantly harm the national or international population of the species (which is how high the local authorities have set the bar).
We think society should have a role in deciding whether such an impact is significant, as the Rio Convention seems to require in its 10th principle.
The widely available information on the impacts of salmon farms on the environment, called for by this principle, is very often lacking.
'Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.'
The Convention's 22nd principle adds this:
'Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.'
Another result of the Earth Summit was Agenda 21 - 'a vast work program for the 21st century.' The extracts below show the value that the UN and its convention's signatories put on the interests and opinions of local communities, in loving and protecting that part of environment they know best - their home.
In the UK, 26 years after the Rio Earth Summit, it seems to me that we have not travelled very far towards these goals:
10. MANAGING LAND SUSTAINABLY
'Calls on governments to develop policies that take into account the land-resource base, population changes, and the interests of local people; improve and enforce laws and regulations to support the sustainable use of land, and restrict the transfer of productive arable land to other uses; use techniques such as landscape ecological planning that focus on an ecosystem or a watershed, and encourage sustainable livelihoods; include appropriate traditional and indigenous land-use practices, such as pastoralism, traditional land reserves, and terraced agriculture in land management; encourage the active participation in decision-making of those affected groups that have often been excluded, such as women, youth, indigenous people, and other local communities; test ways of putting the value of land and ecosystems into national reports on economic performance; ensure that institutions that deal with land and natural resources integrate environmental, social, and economic issues into planning.'
28. LOCAL AUTHORITIES
'Calls on local authorities, by 1996, to undertake to promote a consensus in their local populations on "a local Agenda 21;" and, at all times, to invite women and youth into full participation in the decision-making, planning, and implementation process; to consult citizens and community, business, and industrial organizations to gather information and build a consensus on sustainable development strategies. This consensus would help them reshape local programs, policies, laws, and regulations to achieve desired objectives. The process of consultation would increase people's awareness of sustainable development issues.'
40. INFORMATION FOR DECISION-MAKING
'Calls on governments to ensure that local communities and resource users get the information and skills needed to manage their environment and resources sustainably, including application of traditional and indigenous knowledge; more information about the status of urban air, fresh water, land resources, desertification, soil degradation, biodiversity, the high seas, and the upper atmosphere; more information about population, urbanization, poverty, health, and rights of access to resources. Information is also needed about the relationships of groups, including women, indigenous peoples, youth, children and the disabled with environment issues. Current national accounting reckons environmental costs as "externalities." Internalization of such costs, the amortization of non-renewable resources, and the development of indicators of sustainability all require not only new data but new thinking.'
Community involvement is what the supposedly democratic planning permission process is for after all. Instead the lack of firm advice either way, and the pro-development presumption in planning law, mean that the precautionary principle is never applied.
In particular I’d like to know the strength of the legal obligation to apply the precautionary principle, and why it is so rarely applied in the UK, apparently with impunity.
It is rare for this failure to be tested in court, I suspect because it comes down to challenging particularly bad decisions in the courts, one by one, by judicial review, which is expensive and risky.
I wonder whether the UN has any teeth in terms of enforcing the Rio Convention’s terms.
You can see why the UK Government would be keen to use the rewriting of laws after Brexit to drop these commitments, or to water them down. Even though they are not properly observed at present they probably do make the Government think twice about some of the more extreme anti-environment actions and developments it sanctions, in case they make it vulnerable to judicial review.