Throwing precaution to the wind?

01 Mar 2019

Our campaign, Fight for Scotland’s Nature, is calling on Scottish Government to introduce a Scottish Environment Act. First and foremost the Act must embed EU and internationally recognised principles of environmental law in Scots law. One of these principles is the ‘precautionary principle’.

You may have not heard of the precautionary principle before, but we are all living under its influence – and for good reason!

What is the precautionary principle?

From everyday life to major public policy decisions, we are regularly confronted with the same basic dilemma: do we go ahead with something and is it worth the risks? In our daily life, we rely on how certain or uncertain we are of the benefits or potential consequences of a decision. For example, if you know you are allergic to almonds, you are unlikely to want to try pecan pie. Since pecans and almonds are both nuts, eating pecan pie is likely to elicit an allergic reaction.

The precautionary principle gives us a framework for evaluating and managing the same kind of decisions in public policy. It allows us to trigger policy intervention in circumstances where there are reasonable grounds for concern but where there is uncertainty about the probability of the risk and the degree of harm.

In other words, it provides a fundamental policy basis to anticipate, avoid and mitigate threats to the environment.

The precautionary principle is among the most widely referenced environmental law principles in global agreements, such as climate change and biodiversity. At the EU level, the EU Treaties reference it as one of the key principles upon which Union law on the environment should be based.

Neonicotinoids: a precautionary ban

A clear example of the application of the precautionary principle is the EU restriction of neonicotinoid pesticides. In 2013, the European Commission placed a restriction on these chemicals because of evidence that they were impacting bee populations. Then, the European Food Safety Authority (EFSA) launched a scientific assessment to identify the precise risks. Producers of these pesticides challenged the restriction in the European Court of Justice, but the Court concluded that the Commission was right to make use of the precautionary principle and take measures.

Even though there was scientific uncertainty about the degree of risk to the environment, under the precautionary principle the Commission did not have to wait until it was clear that harm had been caused before taking action. In 2018, EFSA concluded that most uses of neonicotinoid pesticides were a risk to wild bees and honeybees and the restrictions were updated accordingly.

The risk of Brexit

As a result of EU membership, courts, businesses and governments can apply the precautionary principle in their decision-making. It forms an essential component of environmental law in Scotland. In 2017, Environment Secretary Roseanna Cunningham stated that “the four EU principles of precaution, prevention, pollution at source and ‘polluter pays’… are essential to maintaining Scotland’s environmental achievements”.

But the prospect of the UK’s exit from the EU compromises this.

What is more, we risk losing the protection of these critically important principles at a time when major global discussions are happening under the United Nations to bring about a Global Pact for the Environment dedicated to the same environmental principles. Scotland cannot afford to be left behind European and international partners.

Environmental principles, such as the precautionary principle, must continue to form the basis of Scotland’s environment policy. To do that they need to be legally binding. In other words, we need Scottish Government to embed these principles in domestic law.

Read more about the EU’s four environmental principles.

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