The Multinational Monitor

September 2004 - VOLUME 25 - NUMBERS 9

Precautionary Precepts
The Power and Potential
of the Precautionary Principle

An Interview with Carolyn Raffensperger

Carolyn Raffensperger is the founding executive director of the Science and Environmental Health Network. An environmental lawyer, she specializes in the fundamental changes in law and policy necessary for the protection and restoration of public health and the environment. Raffensperger is co-editor of Protecting Public Health and the Environment: Implementing the Precautionary Principle, the most comprehensive exploration to date of the history, theory and implementation of the Precautionary Principle.


Multinational Monitor: What is the Precautionary Principle?
Carolyn Raffensperger:
It is quite simple. It has three building blocks. One is scientific uncertainty. The second is the likelihood or the plausibility of harm. The third element is precautionary action. The mandate of the Precautionary Principle is to take preventive action in the face of uncertainty to prevent harm. The focus is no longer on measuring and managing harm, but preventing harm. Critics of the Precautionary Principle say that it is going to stop all action or stop all progress, and yet the Precautionary Principle invites action: it says you've got to take action. That has in many ways galvanized us; it gives us a way of operationalizing environmental protection.

MM: What are some of those actions? What are the policy tools to operationalize the Precautionary Principle?
There are four ways of implementing the Precautionary Principle.

First is to set goals: Where do you want to go? What do you want the world to look like? In the United States, we gather a lot of statistics, but we don't say, "Here's where we want to go, here's what the world should look like." We don't say, for example, "Let's prevent all preventable asthmas," and then figure out how we're going to reach that goal.

The Precautionary Principle says set your goals and you'll find ways to meet those goals. It really is a way to spur innovation and progress by setting those kinds of goals rather than just letting whatever happens happen.

The second mode of implementation is to reverse the burden of proof, especially for chemicals, and other emerging and novel technologies. For so long, industry has received the benefit of the doubt; if regulation is going to threaten business, then regulation should be sacrificed. But what that has meant is that we have sacrificed our children's brains, our women's breasts, our men's prostates on that alter of economic development.

The Precautionary Principle says, no, public health and the environment get the benefit of the doubt, not the almighty dollar. And there are a lot of ways to do that. The Precautionary Principle asserts a responsibility on the part of industry or the proponents of a technology or activity, to test that technology or activity. So for instance, the REACH program proposed in Europe for chemicals says, if you don't test your chemicals, you can't market in Europe.

What a good idea! That's reversing the burden of proof. It says if you haven't even tested your chemical, don't try and sell it to us, and then, if we're injured, make us go to court and test the chemical to show it is unsafe. The REACH program says to industry, you've got the obligation; this is your responsibility. This is a complete turn around compared to what is typical in the United States.

The third element of the Precautionary Principle is looking for the safest alternative. If you've set a goal to achieve some end, which alternative gets you to the goal? This approach means you're going to find much better ways to do things; it drives innovation.

Pursuit of the safest alternative is creating whole new fields like green chemistry and green engineering. They are taking the dirtiest chemicals, throwing them out and changing policy and industry in some really wonderful ways. Choosing the safest alternative is in many ways the heart-beat of the Precautionary Principle.

The final element of the Precautionary Principle is democracy. If we're faced with scientific uncertainty, we need to set goals, and choose the safest alternative to achieve these goals. These processes involve values and ethics; it is not something that scientists or government bureaucrats can decide alone. We need to bring affected parties to the table. This gives us a chance as a public to set the goals that we want to drive toward; it helps get on the table a much wider array of options for solving problems and looking for alternatives. So democracy is also an essential component of the Precautionary Principle.

MM: What are the origins of the Precautionary Principle?
In the United States, the Precautionary Principle comes out of struggles in communities that were poisoned by chemicals and toxins.

They were told repeatedly that they couldn't prove that their injuries, their birth defects, their cancers were in any way related to nearby toxic landfills or manufacturing activities. They were told that company risk assessments had demonstrated that everything was safe; when there were clusters of weird diseases and problems, the communities were told that they weren't statistically significant.

Rather than pursuing possible causes and a strategy of prevention, they found industry and government agencies waiting until the dead bodies stacked up, and avoiding action. The deep frustration with that approach led the environmentalists in the United States to search for a different way of doing business.

The words "Precautionary Principle" come from Germany. German environmentalists had been trying to find a way to address the decline of the Black Forest, and came up with this idea, which literally translates from the German as forecaring -- caring for what might be a difficult future.

Greenpeace heard discussions of this German approach to the environment, and began writing about it.

We picked it up and held the Wingspread conference, a gathering of U.S. environmental health advocates, policymakers and scientists in 1998.

At roughly the same time, the Precautionary Principle was gaining international attention in a variety of fora.

In the 1990s, the International Joint Commission [IJC, a U.S.-Canadian body that advises the two countries' governments on transboundary water quality issues] issued a report at the behest of Gordon Durnil, who had been appointed chair of the commission as a result of his connections to the Bush family. Gordon saw the effect of persistent organic pollutants on the Great Lakes. He was offended by what he felt was waffling by industry and the U.S. Environmental Protection Agency.

So the IJC came out with an approach to the Precautionary Principle that had two essential elements. The first was that policymakers should rely on the weight of evidence, rather than waiting for "proof." Adding up all the information available, they should take reasonable and responsible action in the face of uncertainty. Second, the IJC set a goal, which was zero discharge of persistent organic pollutants into the Great Lakes.

Those are some of the important strands that came together in the development of the Precautionary Principle.

MM: How has industry responded to the campaigning around the Precautionary Principle?
There is widespread opposition. You'll see trade associations going after the Precautionary Principle, essentially saying that adopting the Precautionary Principle would be the end of the world as we know it, would mean going back to horses and buggies.

But the surprise has been how many CEOs, companies and industries have adopted the Precautionary Principle, often by name and sometimes in wholesale fashion.

Samsung has adopted the Precautionary Principle as a chemicals policy.

Kaiser Permanente has adopted the Precautionary Principle to guide both food and chemicals policy.

Bristol-Myers Squibb has adopted the Precautionary Principle to guide its use of chemical processes.

Verizon sent out a pamphlet to all of its cell phone customers that identified the Precautionary Principle by name, suggested that parents might want to be concerned about uncertain risks of health harm from electromagnetic fields and suggested precautionary action by limiting children's use of cell phones to emergency uses.

MM: What is the core of the arguments from the Chamber of Commerce and trade associations that oppose the Precautionary Principle?
The main objection is that they don't want to be told what to do.

But the major policy arguments are two-fold: First, that the Precautionary Principle is going to limit trade and is an unnecessary trade barrier. Because Europe has been more aggressively precautionary, U.S. business groups often argue that the Precautionary Principle is a camouflage for trade protectionism. I would argue that it is protectionism -- for public health and the environment. You'll find, regardless of the party in power, that the trade gurus in the State Department and the U.S. Trade Representative's office almost without exception oppose the Precautionary Principle.

The other industry argument is always a specious one and it is cloaked in the sick and dying baby argument. For any toxic product, if they can make the case that it is doing some dying baby a good thing, they will focus on the trade-off. So if environmentalists are concerned about DDT, they will claim that the environmentalists are willing to let kids die of malaria. This is opposed to what the Precautionary Principle really says: Let's establish a goal of no babies dying of malaria, and let's pursue the safest alternative for meeting that agenda.

MM: How do you go about applying the Precautionary Principle to an existing and widely dispersed technology, such as the automobile?
The approach has to be to keep on setting goals and trying to meet them.

We need to set some goals, for example, on global climate change and air quality. And then we have to figure out how to meet them. California has generated lots of impetus for developing cars that don't pollute, and they are in some ways driving a market.

But this is a big problem. Once things are out in the world and causing damage, it's much harder to pull back.

Companies will spend millions and millions of dollars developing a pesticide or an application of biotechnology, or designing cars, or whatever it might be -- and if they've got this whole product line developed and somebody like the Environmental Protection Agency or the Food and Drug Administration says there's a problem, then the company or industry has wasted millions of dollars. And they're not likely to sit idly by while the regulatory agency tries to fix the problem or ban the product.

So we would argue that the Precautionary Principle should not just be a risk-management tool -- "Oh, it looks like a little bit too much risk, so let's apply safety factors."

We need to pull the Precautionary Principle all the way up to the beginning of decision making, into the research level.

By doing so, we're much less likely to develop products and technologies that have to be regulated. Environmental architect and designer Bill McDonough says that regulation is design failure, and what we need to prevent that design failure is the Precautionary Principle.

One problem is that we don't have a public interest research agenda. There is really no good mechanism for setting goals in the United States and then spending money on the research that we want to help reach those goals. We need to develop such a mechanism.

Having said how important it is to build the Precautionary Principle into the research process, we do have to carry it through regulation. When we've made a mistake with design, then we've got a backstop. And, finally, we need to incorporate the Precautionary Principle even into the judicial system, so that we can reverse the burden of proof: the burden is on the company to test its product and show that it is safe. We need to carry it all the way through.

MM: How does the Precautionary Principle connect with another rising ecological principle: environmental justice?
It seems to mesh quite well. California's EPA has adopted the Precautionary Principle along with the idea of assessing cumulative impacts to guide the agency's environmental justice policy. What they're saying is: people of color have taken the brunt for all of these various technologies and landfills and other things that have been sited in their neighborhoods. Regulators tend to evaluate them all individually and not look at their cumulative impacts, and we need to apply the Precautionary Principle to address those cumulative impacts. We need to begin preventing harm and looking at it systemically rather than with this kind of piecemeal risk assessment.

Environmental justice advocates have also been quite clear about the burden of proof -- for so long they have carried not only the burden of toxic chemicals, but the burden of having to prove that they have been injured.

With the Precautionary Principle saying, that's not your job, it really is industry's responsibility to monitor, test and pay for damage and clean-up, it has codified things they have been saying all along.

MM: How does the Precautionary Principle shape or affect ideas about managing public assets?
If you start with the premise that the foundation of an economy is capital, then you're going to do everything you can to protect capital. You'll see the differences in taxation -- in the United States, for example, we tax labor much more than capital and interest on capital, because we don't value labor very much. It's capital that is the big economic driver. That's one view.

I believe by contrast that it is really our common resources -- the air, the water, the street in front of my house, the library, the public schools, the national parks, the public health (not my individual health, but public health) -- that is the generative ground of the economy. Without clean air, without clean water, without the ocean front, without all of those other things that I mentioned, the economy would collapse. Without the roads, for example, we couldn't move our farm products to market.

So the commons and the common resources are the basis of the economy, the foundation of America and they must be protected.

The Hawaiian and other state constitutions, as well as a lot of common law, say that states have a responsibility to manage natural resources and common assets as a matter of the public trust -- these are to be held in trust for this and future generations.

In a lawsuit, Hawaii was challenged on how it was applying this constitutional provision. Hawaii said that in order to manage the commons and the common wealth, we've got to use the Precautionary Principle. If we're going to pass the natural resource -- in this case water -- on to our children in as good as shape as we got it, we're going to have to act in the face of uncertainty. So you get a longer timeframe, you get an argument against privatization, and you get a requirement to use the Precautionary Principle.

MM: Why has the Precautionary Principle focus been so heavily on chemicals?
Probably because people experience a direct effect if they suspect that a rash of cancers, asthma or birth defects have a chemical dimension to it. It is just a little bit closer to home. It is harder to think about big global issues like climate change on the personal level.

Also, chemicals policy has been evolving both in Europe and the United States for long enough that we have developed a good understanding of what works and what doesn't work.

Not long ago, we really thought that we could measure and manage chemical risk, we really thought that the Great Lakes had a virtually limitless assimilative capacity; we just didn't understand.

MM: In what other industrial sectors or for what other issues do you see the Precautionary Principle becoming a main force in the years ahead?
I think we're seeing it in managing fisheries in the oceans. I think it's definitely on the radar for biotechnology. The very first international treaty that incorporated the Precautionary Principle in the body of the treaty, was the Biosafety Protocol. Many of the new approaches to dealing with climate change will rely on the Precautionary Principle to drive new solutions and innovation. Protection of terrestrial wildlife is going to rely increasingly on the Precautionary Principle. Many places, like San Francisco, are starting to think through what it means to apply the Precautionary Principle to land use.

As we re-think any of the environmental fields that require science, the Precautionary Principle is going to come into play.

MM: How optimistic are you about the diffusion and acceptance of the Precautionary Principle, given the intense industry opposition?
I could not have predicted so much that has already happened. I could not have guessed or predicted that the Precautionary Principle would be law in San Francisco. I could not have predicted that Teresa Heinz Kerry would endorse the Precautionary Principle, publicly, in this presidential campaign. Industry is not one monolithic force, and one of the great surprises and joys has been that so many companies are choosing to operate by the Precautionary Principle.

My sense is that the Precautionary Principle is like yeast, continually expanding. It makes so much visceral sense to people who love their children, who love their neighborhood, love their community, love this world. So I expect to be surprised. n

The mandate of
the Precautionary
Principle is to take preventive action in the face of uncertainty to prevent harm.

We need to pull the Precautionary Principle all the way up to the beginning of decision making, into the research level.

If you’ve set a goal to achieve some end, which alternative gets you to the goal? Taking this approach means you’re going to find much better ways to do things; it drives innovation.
  My sense is that the Precautionary Principle is like yeast, continually expanding. It makes so much visceral sense to people who love their children, love their neighborhood, love their community, love this world.