Burden of Proof: The Precautionary Principle

An Interview with Peter Montague

Peter Montague is director of the Environmental Research Foundation in New Brunswick, New Jersey. He was the longtime editor of Rachel’s Environment and Health News, an incisive weekly newsletter which recently ceased publication after its 1000th issue. He has co-authored two books on toxic heavy metals in the natural environment and is presently writing a book about the precautionary principle.

Multinational Monitor: What is the precautionary principle?

Peter Montague: The precautionary principle is a way of making decisions about things we care about, especially when we're not sure we have all the information we think we need. It's a way of making decisions in the face of uncertainty. The overarching goal of precaution is to minimize harm to present and future generations and to the ecosystems on which all life depends.

There are really three things that distinguish the precautionary approach from more traditional decision-making.

First, precaution assumes that the proponents of a product or project should provide evidence that (a) they have looked at all reasonable alternatives and are going about their business in the least harmful way possible; and (b) their activities are not likely to degrade human health or the natural environment.

Second, precautionary decision-making engages the people who will be affected by a decision - really engages them. At least that's what's supposed to happen. Instead of the five-minute democracy so typical at public hearings in the U.S., where citizens are given five minutes to comment, precaution urges an extensive process of engaging citizens in decisions.

Finally, because precaution is used when we are uncertain about the consequences of our actions, precaution urges us to monitor the consequences of our decisions and be prepared to alter course if things are turning out badly. Therefore, precaution favors decisions that can be reversed, avoiding irretrievable commitments.

MM: Doesn't the precautionary principle put an impossible burden on companies to show something is not unsafe?

Montague: Not really. When a drug company wants to market a new drug, we ask them to provide reasonable evidence of no harm and we ask them to show that their new product will do some good (they must show "efficacy"). The assumption is that a new drug will be harmful or useless (or both) and it's up to the company to prove otherwise. The burden of proof is on the company promoting the new drug, not on the public (or their government) to provide persuasive information.

The precautionary principle applies these same ideas more generally. Using the precautionary principle, decision makers can ask whether products or projects are being done in the least-harmful way possible, and they might ask the proponents to reveal who's going to get the benefits and who's going to be saddled with the harm. A side benefit of this approach is that we can assess the fairness of a proposed activity. Conceivably, precaution could lead to a really fundamental question, such as, "Do we need this at all? Does it provide any real benefits to anyone?"

Of course, even the best scientific efforts to anticipate problems with a product or project can fail to foresee problems - even serious problems. Think of the ozone layer being depleted by refrigeration chemicals. Unpleasant surprises are a regular feature of modern industrial life, so, after we make a decision, we must monitor carefully and be prepared to alter course when necessary.

MM: How does the precautionary principle compare to the cost-benefit analysis approach to risk?

Montague: As lawyer-scientist Joseph Guth has shown in a series of scholarly papers, cost-benefit analysis enjoys a special status in U.S. law and policy. From the mid-19th century onward, U.S. law was designed to promote economic growth. With few exceptions, statutory law, common law and government regulations all presume that economic growth provides net benefits (more benefits than costs) to society until an explicit cost-benefit analysis can show otherwise. Even when considerable harm is acknowledged, the starting presumption is that economic growth provides more benefits than costs. Therefore, faced with uncertainty, ignorance or doubt, the law presumes that economic growth should continue - until an explicit cost-benefit analysis can show conclusively that the costs to society outweigh any benefits. Given the starting presumption, it is up to the public (or their government) to show that costs exceed benefits. If they fail to meet that burden, an economic activity can continue. As you can see, under these assumptions, scientific uncertainty, doubt and ignorance allow economic activity to continue, even when it is acknowledged to be causing substantial harm. This has led to the rise of an industry devoted to the creation of uncertainty and doubt. David Michaels has described this industry in his excellent book, Doubt is Their Product.

The precautionary principle shifts the starting assumption. Precaution assumes that, in the modern world, a product or project is likely to be harmful, just the way U.S. food and drug law assumes a new drug is harmful or useless or both.

Shifting this assumption is necessary because the world has been badly damaged by the cost-benefit approach in which all economic activities are assumed to produce more benefits than harms. The world is now burdened with a growing list of very substantial harms - global warming; ozone layer depletion; species going extinct at roughly 1,000 times the historical rate; male fish turning into female fish in essentially all fresh waters of the U.S.; a majority of marine fisheries depleted or badly overfished; many chronic diseases increasing (e.g., asthma, diabetes, childhood cancers, attention deficits, autism spectrum disorder, etc.); girls reaching puberty earlier than in the past; several kinds of birth defects increasing. This list could be readily extended.

Given that the world is experiencing this perfect storm of environment and health problems, the precautionary principle shifts the burden of proof onto economic actors, asking them to show that they are (a) doing things in the least harmful way possible, and (b) the harms they are adding to the system will not degrade human health or the natural environment.

The assumption of cost-benefit analysis has always been that benefits and their associated, though lesser, costs can grow without limit. The law assumes that, to achieve some benefit, the Earth and the human species can absorb costs without limit. But we can see from the short and very incomplete catalog of problems mentioned previously, that we have exceeded the Earth's capacity to absorb harm - we are degrading the capacity of the planet to support human life. It is worth pointing out that, so far as anyone knows, this planet is the only place in the universe that is hospitable to our species. Earth is our only home. So we are toying with the destruction of the place that sustains us, threatening the future of our species. As Joe Guth points out, the loss of the planet as a suitable habitat for humans would be an infinite loss for our species.

Under these circumstances, justifying more costs by claiming that the benefits are large is ultimately suicidal. If we have exceeded the planet's capacity to sustain and regenerate itself from harm, we are therefore threatening our own existence - so further damage to the planet must be avoided regardless of any benefits promised. This means that cost-benefit analysis is no longer a useful approach to decisions and should be abandoned. In its place, we need to examine every decision that could impact the Earth and human health from a precautionary perspective, asking whether it is likely to degrade the planet further, or harm human health further - and we must now always ask whether a product or project is being approached in the least-harmful way possible.

Cost-benefit analysis asks, "Is this harm justified by related benefits?" If the answer is yes, or even if the answer is unknown, the harm is allowed to continue. The precautionary principal asks, "Is this harm avoidable?"

MM: Business groups contrast the precautionary principle to "a science-based approach to risk management." Is this a legitimate contrast?

Montague: I would say not. As Joe Guth has pointed out, the precautionary approach is actually far more scientific than the current decision- making structure based on cost-benefit analysis. The presumptions built into our current legal decision-structure are profoundly unscientific. The basic assumption is that the planet has an infinite capacity to absorb harm from human economic activities, and that therefore human activities can continue to impose costs on the global ecosystem without limit. So long as benefits outweigh costs, the system assumes costs can continue to accumulate forever.

However, thousands of scientific studies have shown that the global ecosystem has already suffered substantial - and in some cases irreparable - harm and is being permanently degraded. The cumulative impact of millions of small costs - each of which could be justified by a cost-benefit analysis - has degraded the planet.

So we can see that our regulatory system is based on a premise that scientists know is no longer valid. Despite this, regulators and judges are not legally allowed to acknowledge this fatal flaw in the cost-benefit approach because of the presumptions built into our laws and regulations.

In cost-benefit analysis, scientific uncertainty is usually not factored in. Missing data is assigned a value of zero and is usually not considered at all. On the other hand, the precautionary approach considers scientific uncertainty a reasonable basis for action - precautionary action to avoid harm. Here again, we see the precautionary approach using the full spectrum of scientific information while cost-benefit analysis ignores important scientific data.

In sum, it is the cost-benefit approach that is unscientific, not the precautionary approach.

MM: To what extent, if any, is the precautionary principle evident in U.S. environmental law? Or other areas of the law?

Montague: As I mentioned, U.S. food and drug law takes a precautionary approach, assuming that new drugs are harmful or useless or both, and putting the burden on drug companies to prove otherwise. The Endangered Species Act (ESA) requires all government agencies to avoid actions that might harm a species that has been designated as "threatened" or "endangered," even if this proves to be very costly. The ESA does not require cost-benefit analysis of proposed actions to show that protecting endangered species is "worth it." The law assumes that protecting an endangered species is worth the cost.

Some parts of the Clean Air Act and the Clean Water Act require that standards be set to protect human and environmental health without any cost-benefit balancing.

So there are instances of a precautionary approach built into several U.S. environmental statutes. But these are exceptions to the general rule that still guides most of our laws and regulations, namely that benefits are assumed to outweigh costs, and costs are assumed to be able to grow without limit. In general, the law assumes that the Earth can absorb unlimited harm and that no one has a right to curtail harm unless they can show that the harm is "unreasonable" - meaning that its social costs exceed its social benefits. Absent such a showing, the harmful activity gets to continue.

MM: To what extent, if any, is the precautionary principle evident in other countries' environmental law?

Montague: Precautionary thinking is spreading everywhere. The European Union adopted the precautionary principle in its founding document, the Maastricht Treaty of 1990. The United Nations adopted a version of the precautionary principle in the Rio Declaration of 1992. The nation of Bhutan recently wrote the precautionary principle into its new constitution. New Zealand is taking a precautionary approach to management of its fisheries - erring on the side of caution by setting strict limits on commercial fishing. More than 50 Canadian cities have outlawed the use of pesticides for cosmetic purposes on lawns - on the assumption that pesticides are intrinsically dangerous and will eventually cause some harm to humans and other forms of life. These are just a few examples of precaution being slowly adopted around the world. Clearly, this is an idea whose time has come.

MM: What has been the impact of the European precautionary-based rules on chemicals, electronic waste and other areas? Has business eviscerated them? Have the rules eviscerated business?

Montague: It's too early to tell what the consequences will be of the new European chemicals policy called REACH (Registration, Evaluation and Authorization of Chemicals). The basic idea of REACH is that industrial chemicals should be tested for health and environmental effects before they are marketed, just as drugs must be tested for safety and efficacy before they can be sold. U.S. chemical firms will have to comply with these laws if they want to sell chemicals in Europe, which is a huge market. It seems likely that the chemical industry - for all its bellyaching and posturing - will have little trouble complying with the law and that, as a result, many dangerous chemicals will be withdrawn from the market and replaced by less dangerous alternatives.

The effort in this country to create "green chemistry" has been given a big boost by Europe's adoption of REACH, though green chemistry remains insignificantly small compared to the industrial apparatus still devoted to chlorine chemistry.

MM: How has the U.S. government responded to precautionary initiatives in Europe?

Montague: The full force and power of the U.S. Treasury has been arrayed against Europe, trying to derail - or at least defang - the REACH chemicals policy. REACH is far weaker than when it started out, thanks in large part to illegal meddling by the U.S. government and U.S. corporations like Monsanto in internal policies of the European Union. Furthermore, through the World Trade Organization and the U.S. Trade Representative, the American government has done its best to overturn specific precautionary policies such as those I've mentioned - European distrust of meat treated with hormones and distaste for all foods grown from genetically engineered seed. The U.S. is doing its best to hold back the tide of precautionary thinking that has spread outward from Europe.

MM: What needs to be done to make the precautionary principle a governing principle for environmental policymaking?

Montague: First, to make any really substantial changes in environmental policy - or in any important social policies, for that matter - we would have to get private money out of our elections. So long as you have to spend millions of dollars to seek even the least-costly national office, and so long as private parties can provide those monies, national offices will be held only by people who are themselves wealthy or who are beholden to wealthy patrons. To point out the obvious again, the system is working just fine for the super-rich corporate elite, and they have no interest in reforming it, to put it mildly. So until we can pry their hands off the steering wheel - by eliminating the power of their money to control our elections - we won't be able to make the needed policy changes. We may be able to nibble around the edges of what's needed, but real reform will remain out of reach, and we will continue down the path that ultimately leads to the extinction of our species.

Second, the environmental advocacy apparatus - I think we can no longer justify calling it a "movement" - would have to embrace the precautionary principle and make it a multi-year campaign priority. And, to really do that, they would have to acknowledge the power of private money to prevent the needed policy changes.

Furthermore, the grassroots and environmental-justice-oriented groups would have to confront the reality that many of the Big Green groups in D.C. have morphed into corporate front groups, promoting corporate-friendly environmental policies rather than putting a priority on protecting the global ecosystem from degradation using a precautionary approach. We tend to paper over these differences and pretend that they are not fundamentally important, but they are. Specifically, Environmental Defense and its followers need to be outed and confronted and their funding diverted to grassroots groups that actually want to make the needed changes. Furthermore, those grassroots groups need a physical and intellectual infrastructure to make it possible for them to become a real social movement. Social movements cannot be created, but their advent can be anticipated and prepared for.

MM: What needs to be done to make the precautionary principle a governing principle for economic policymaking, nationally and globally? And is that something to which we should aspire?

Montague: We should aspire to making precautionary thinking second nature. Just as it would be unthinkable to re-introduce chattel slavery in the U.S., we should aim to make it unthinkable to undertake a project or product without examining all available alternatives to find the least harmful way. We should put the burden of proof of safety and efficacy onto all economic actors. As our technologies grow ever-more powerful and therefore ever-more dangerous, we need to alter the approach that the U.S. has favored for 200 years, which is roughly, "Damn the torpedoes, full speed ahead, nothing ventured, nothing gained." We need to embrace and champion those opposing threads that are woven throughout our culture: A stitch in time saves nine; Better safe than sorry; First, do no harm.

The precautionary principle offers guidance for living - it counsels us to combine all the tools of science and ancient wisdom to avoid harm. In the case of economic policies, we know that the root cause of environmental destruction is an ever-expanding human economy. We therefore know we need to develop an economy that can grow but doesn't have to grow. The so-called Third World needs growth - they need ports, power plants, roads, schools, hospitals. But on a planet where the human economy has already exceeded some of the Earth's capacity for self-renewal, the overdeveloped countries would have to shrink their economies to make room for the growth that is needed in the Global South. At present this is unthinkable because our economy exists in only two states: it's either growing or collapsing. The idea of a steady-state economy, or an economy that is shrinking in an orderly fashion, is not yet thinkable. That will have to change if we want to avoid destroying our only home.

How can we make such deep changes? Again, we've got to get private money out of our elections, so that ordinary people with good ideas and good sense can afford to run for office. Until we eliminate private money from our elections, the needed changes can be imagined and designed and described, but they cannot be implemented.

MM: The world is amidst a deepening recession. Does the precautionary principle offer guidance on how policymakers should respond?

Montague: The precautionary principle is basically a prevention strategy, aiming to prevent harm. Unfortunately, as Naomi Klein shows in her extraordinarily insightful book, The Shock Doctine, the corporate elite has learned to thrive on trouble, so preventing trouble is not in their interests. Their power will have to be diminished very substantially before we can develop an economy and a mindset aimed at preventing harm to individuals and communities.

The present global recession fits right into the pattern described by Naomi Klein. For example, the recession is decimating the not-for-profit sector in the U.S., leaving the people who created this recession with ever more centralized, unopposed power. Taxpayers are being forced to bail out these shrewd billionaires on the theory that we can't get along without them. It is essentially a coup d'etat by Wall Street. It is unclear where this will lead but in the short term it will make real change even more difficult than before. As Paul Krugman pointed out recently in the New York Times, the people making U.S. economic policies remain wedded to Reaganesque so-called "free market" policies. Their idea of success is to continue the policies that have brought the world to its knees. So "change we can believe in" turns out to be just more of the same old same old.

A precautionary economics would begin by aiming to develop strong local economies, intended to make communities more self-sufficient and therefore more resilient in the face of the "gales of destruction" we have come to expect from so-called "free-market" capitalism. Here the work of Jane Jacobs, David Morris and Michael Shuman comes to mind. They have championed the idea that communities should aim for self-sufficiency to the extent possible, using their economic development resources to promote local businesses that are locally owned and operated.

MM: How can municipalities and states incorporate the precautionary principle into their policymaking?

Montague: First, they could incorporate it into a law. San Francisco has done that, as has Lyndhurst, New Jersey. Joe Guth has developed a model ordinance for municipalities and states to consider.

Secondly, they could incorporate precaution into their economic development policies, aiming to create robust, resilient local and regional economies, as mentioned above. This would include a strategy for controlling the behavior of corporations. The modern corporation is largely unaccountable and has only one legal purpose - to return a modicum of profit to its shareholders. It must do this without regard to consequences for the local economy. So community resilience requires new ways of controlling corporate behavior.

Third, they could monitor and measure community well-being, inventory-ing community assets and "the commons," for example, and regularly report on the "state of the community." The commons includes common assets, common property and common wealth. It includes nature - air, water, soil, wildlife, habitat, and so on - but it also includes language, accumulated knowledge, relationships of respect and trust, and it includes libraries, roads, public open space, and so on. Government is the trustee of the commons and it should offer a trustee's report every few years. Trends are important, and can provide the basis for precautionary action to avert harm.

Fourth, they could adopt an idea developed jointly by the Indigenous Environmental Network (IEN) and the Science & Environmental Health Network (SEHN) - creating the position of "guardian of the future" as a municipal or state office. The guardian would have responsibility for thinking about the long-term consequences of present trends and policies.

Fifth, they could adopt zero waste policies, aiming for clean production, and cradle-to-cradle management of products designed for endless reuse.

MM: Is the precautionary principle relevant for developing countries? Does it presume or require more scientific or regulatory capacity than many developing countries have? Does it require forsaking wealth creation in societies that are too poor to afford the luxury?

Montague: The precautionary principle can work in any social setting. It is a flexible approach to decision-making intended to avoid harm to humans and the ecosystems on which they depend. Of course, the overdeveloped world has made life more difficult than necessary for the Third World, imposing requirements on them that we do not impose on ourselves (insisting that they end farm subsidies, for example, while we continue to subsidize our farmers to the tune of tens of billions of dollars each year). Despite this, the Third World can adopt a precautionary approach to decision-making just as we can. Precaution is an overarching philosophy that can be adapted to any social setting.