Editing Precautionary principle (section)

=== International agreements and declarations ===

===="Principle" vs. "approach"====
No introduction to the precautionary principle would be complete without brief reference to the difference between the precautionary ''principle'' and the precautionary ''approach''. Principle 15 of the Rio Declaration 1992 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 be not used as a reason for postponing cost-effective measures to prevent environmental degradation." As Garcia (1995) pointed out, "the wording, largely similar to that of the principle, is subtly different in that:  it recognizes that there may be differences in local capabilities to apply the approach, and it calls for cost-effectiveness in applying the approach, e.g., taking economic and social costs into account." The "approach" is generally considered a softening of the "principle":

{{blockquote|As Recuerda has noted, the distinction between the precautionary principle and a precautionary approach is diffuse and, in some contexts, controversial. In the negotiations of international declarations, the United States has opposed the use of the term ''principle'' because this term has special connotations in legal language, due to the fact that a ''principle of law'' is a source of law. This means that it is compulsory, so a court can quash or confirm a decision through the application of the precautionary principle. In this sense, the precautionary principle is not a simple idea or a desideratum but a source of law. This is the legal status of the precautionary principle in the European Union. On the other hand, an 'approach' usually does not have the same meaning, although in some particular cases an approach could be binding. A precautionary approach is a particular "lens" used to identify risk that every prudent person possesses (Recuerda, 2008)<ref>{{cite journal |author=Recuerda, M. A. |title=Dangerous interpretations of the precautionary principle and the foundational values of the European Union Food Law: Risk versus Risk |journal=Journal of Food Law & Policy |volume=4 |issue=1 |year=2008 }}</ref>}}

====European Union====
On 2 February 2000, the [[European Commission]] issued a Communication on the precautionary principle,<ref name=EU-Comm-PP/> in which it adopted a procedure for the application of this concept, but without giving a detailed definition of it. Paragraph 2 of article 191 of the [[Lisbon Treaty]] states that:

{{blockquote|Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.<ref>[http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2016:202:FULL&from=EN Consolidated Version of the Treaty on the Functioning of the European Union] article 191, paragraph 2</ref>}}

After the adoption of the European Commission's communication on the precautionary principle, the principle has come to inform much EU policy, including areas beyond [[environmental policy]]. As of 2006 it had been integrated into EU laws "in matters such as general product safety, the use of additives for use in animal nutrition, the incineration of waste, and the regulation of genetically modified organisms".<ref name=Recuerda>{{cite journal |author=Recuerda, Miguel A. |title=Risk and Reason in the European Union Law |journal=European Food and Feed Law Review |volume=5 |year=2006 }}</ref>{{rp|282–83}} Through its application in [[case law]], it has become a "general principle of EU law".<ref name=Recuerda/>{{rp|283}}

In Case T-74/00 ''Artegodan'',<ref>{{cite web|url=http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62000TJ0074|title=EUR-Lex - 62000TJ0074 - EN - EUR-Lex|website=eur-lex.europa.eu}}</ref> the [[General Court (European Union)|General Court]] (then Court of First Instance) appeared willing to extrapolate from the limited provision for the precautionary principle in [[environmental policy]] in article 191(2) [[TFEU]]<ref>{{cite web|url=http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:12008E191|title=EUR-Lex - 12008E191 - EN - EUR-Lex|website=eur-lex.europa.eu}}</ref> to a general principle of EU law.<ref>{{Cite book| last1 = Craig| first1 = Paul| last2=de Búrca|first2 = Gráinne |title = EU law: text, cases, and materials| publisher = Oxford University Press| edition = sixth| year = 2015| pages = 112–113 | isbn = 978-0-19-871492-7}}</ref>

==== France ====

In France, the [[Charter for the Environment]] contains a formulation of the precautionary principle (article 5):
{{Blockquote|When the occurrence of any damage, albeit unpredictable in the current state of scientific knowledge, may seriously and irreversibly harm the environment, public authorities shall, with due respect for the principle of precaution and the areas within their jurisdiction, ensure the implementation of procedures for risk assessment and the adoption of temporary measures commensurate with the risk involved in order to preclude the occurrence of such damage.<ref>[http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/charter_environnement.pdf ''Charter for the Environment''], [[Constitutional Council (France)|Constitutional Council]] (page visited on 28 August 2016).</ref>}}

====United States====
On 18 July 2005, the City of San Francisco passed a precautionary principle purchasing ordinance,<ref>[http://www.municode.com/Resources/gateway.asp?pid=14134&sid=5 Municode] {{webarchive |url=https://web.archive.org/web/20081205100244/http://www.municode.com/Resources/gateway.asp?pid=14134&sid=5 |date=5 December 2008 }}</ref> which requires the city to weigh the environmental and health costs of its $600&nbsp;million in annual purchases – for everything from cleaning supplies to computers. Members of the Bay Area Working Group on the Precautionary Principle contributed to drafting the Ordinance.

====Australia====
The most important Australian court case so far, due to its exceptionally detailed consideration of the precautionary principle, is Telstra Corporation Limited v Hornsby Shire Council.<ref>[2006] NSWLEC 133 (24 March 2006) [http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2006/133.html].</ref>

The principle was summarised by reference to the [[New South Wales|NSW]] ''Protection of the Environment Administration Act 1991'', which itself provides a good definition of the principle:<ref>{{Cite web|url=http://www.austlii.edu.au/au/legis/nsw/consol_act/poteaa1991485/s6.html|title=PROTECTION OF THE ENVIRONMENT ADMINISTRATION ACT 1991 - SECT 6 Objectives of the Authority|website=austlii.edu.au|access-date=2017-04-03}}</ref>

"If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reasoning for postponing measures to prevent environmental degradation. In the application of the principle... decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
(ii) an assessment of risk-weighted consequence of various options".

The most significant points of Justice Preston's decision are the following findings:<ref>Hon. Justice Brian J Preston, (2006), 'Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133', ''Land and Environment Court of New South Wales''. Paragraphs 125-183. https://www.caselaw.nsw.gov.au/decision/549f8a6b3004262463ad5606</ref>
* The principle and accompanying need to take precautionary measures is "triggered" when two prior conditions exist: a threat of serious or irreversible damage, and scientific uncertainty as to the extent of possible damage.
* Once both are satisfied, "a proportionate precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate."
* The threat of serious or irreversible damage should invoke consideration of five factors: the scale of threat (local, regional etc.); the perceived value of the threatened environment; whether the possible impacts are manageable; the level of public concern, and whether there is a rational or scientific basis for the concern.
* The consideration of the level of scientific uncertainty should involve factors which may include: what would constitute sufficient evidence; the level and kind of uncertainty; and the potential to reduce uncertainty.
* The principle shifts the burden of proof. If the principle applies, the burden shifts: "a decision maker must assume the threat of serious or irreversible environmental damage is... a reality [and] the burden of showing this threat... is negligible reverts to the proponent..."
* The precautionary principle invokes preventative action: "the principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threat become fully known".
* "The precautionary principle should not be used to try to avoid all risks."
* The precautionary measures appropriate will depend on the combined effect of "the degree of seriousness and irreversibility of the threat and the degree of uncertainty... the more significant and uncertain the threat, the greater...the precaution required". "...measures should be adopted... proportionate to the potential threats".

====Philippines====
A petition filed 17 May 2013 by environmental group Greenpeace Southeast Asia and farmer-scientist coalition Masipag (''Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura'') asked the appellate court to stop the planting of Bt eggplant in test fields, saying the impacts of such an undertaking to the environment, native crops and human health are still unknown. The Court of Appeals granted the petition, citing the precautionary principle stating "when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish the threat."<ref>{{cite web |url=http://ca.judiciary.gov.ph/cardis/SP00013.pdf |archive-url=https://web.archive.org/web/20160118151419/http://ca.judiciary.gov.ph/cardis/SP00013.pdf |url-status=dead |archive-date=18 January 2016 |title=Greenpeace Southeast Asia (Philippines), et. al. vs. Environmental Management Bureau of the Department of Environment and Natural Resources, et. al. |publisher=Republic of the Philippines Court of Appeals |location=Manila |date=17 May 2013 |access-date=12 March 2016 }}</ref>
Respondents filed a motion for reconsideration in June 2013 and on 20 September 2013 the Court of Appeals chose to uphold their May decision saying the ''bt talong'' field trials violate the people's constitutional right to a "balanced and healthful ecology."<ref>{{cite web |url=http://edigest.elaw.org/sites/default/files/ph.greenpeacese.pdf |title=Greenpeace Southeast Asia (Philippines), et. al. vs. Environment Management Bureau of the Department of Environment and Natural Resources, et. al. |publisher=Republic of the Philippines Court of Appeals |location=Manila |date=17 May 2013 |access-date=12 March 2016 |via=[[Environmental Law Alliance Worldwide|ELAW]] |archive-url=https://web.archive.org/web/20160304105033/http://edigest.elaw.org/sites/default/files/ph.greenpeacese.pdf |archive-date=4 March 2016 |url-status=dead}}</ref><ref>{{cite web |url=http://edigest.elaw.org/sites/default/files/ph.eggplantsept2014.pdf |title=Greenpeace Southeast Asia (Philippines), et. al. vs. Environment Management Bureau of the Department of Environment and Natural Resources, et. al. |publisher=Republic of the Philippines Court of Appeals |location=Manila |date=20 September 2013 |access-date=12 March 2016 |via=ELAW |archive-url=https://web.archive.org/web/20160304084714/http://edigest.elaw.org/sites/default/files/ph.eggplantsept2014.pdf |archive-date=4 March 2016 |url-status=dead}}</ref> The Supreme Court on 8 December 2015 permanently stopped the field testing for Bt (Bacillus thuringiensis) talong (eggplant), upholding the decision of the Court of Appeals which stopped the field trials for the genetically modified eggplant.<ref>{{cite press release|url=http://m.greenpeace.org/international/en/high/press/releases/Philippines-Supreme-Court-bans-development-of-genetically-engineered-products-/ |title=Philippines' Supreme Court bans development of genetically engineered products |publisher=Greenpeace International |date=11 December 2015 |archive-url=https://web.archive.org/web/20151222131524/http://m.greenpeace.org/international/en/high/press/releases/Philippines-Supreme-Court-bans-development-of-genetically-engineered-products-/ |archive-date=22 December 2015}}</ref> The court is the first in the world to adopt the precautionary principle regarding GMO products in its decision. The Supreme Court decision was later reversed following an appeal by researchers at the University of the Philippines Los Baños.<ref>{{cite web|url=https://opinion.inquirer.net/96038/boost-for-bt-talong|title=Boost for Bt 'talong'|publisher=inquirer.net |date=July 2016 |access-date=19 July 2020}}</ref>

==== Corporate ====
[[Body Shop|Body Shop International]], a UK-based cosmetics company, included the precautionary principle in their 2006 chemicals strategy.<ref>{{cite web|url=http://www.thebodyshopinternational.com/NR/rdonlyres/D7F2A9D1-416A-47B8-8BC3-1E858A37F81C/0/BSI_Chemicals_Strategy.pdf |title=Chemicals Strategy |publisher=The Body Shop |date=August 2006 |access-date=12 March 2016}}</ref>