Rachel's Precaution Reporter #40
Wednesday, May 31, 2006
From: Stratfor: Public Policy Intelligence Report ........[This story printer-friendly]
May 25, 2006
PRECAUTIONARY POLICY: LEAVING THE 'PRECAUTIONARY PRINCIPLE' BEHIND
[Rachel's introduction: Stratfor, a corporate intelligence service, describes our upcoming conference in Baltimore and offers its readers a lengthy opinion about the state of precautionary thinking in the U.S.]
By Bart Mongoven
Leading advocates of chemical policy reform will meet in Baltimore in early June to discuss progress made in changing how the United States regulates chemicals, genetically modified organisms (GMOs) and products of nanotechnology. The title of the conference, "Taking Precautionary Action," suggests that these activists will meet as advocates not just of regulatory policy reform, but as advocates of the precautionary principle.
The word choice is interesting, because the "precautionary principle" -- from which the conference title derives -- is no longer at the center of regulatory reform efforts. Nevertheless, advocates of the principle who attend the conference will have a great deal to celebrate. The precautionary principle -- which advocates a certain forward-looking decision-making ethic for regulators -- is taking hold in commerce, but the way in which it is emerging is quite different from that envisioned by the most ardent supporters of the principle. Ultimately, the conference's title and agenda suggest that the goals of those who support the precautionary principle have changed markedly in the past few years and -- as a result -- are poised to become far more effective in the United States than ever before.
The significance of the advocates' discussion ultimately does not lie in questions about who is winning tactical debates or even whether the precautionary principle will survive as a regulatory tool. The important question is, instead, how far activists will be able to push more traditional, familiar types of regulatory reform while still clinging to the rhetoric of the precautionary principle debate.
Precaution: The Regulatory Context
In its pure form, the precautionary principle demands that a practice or product should not be permitted by regulators unless it has been proven not to do harm. Ten years ago, this argument was presented in highly moral terms. Its advocates claimed that creators and producers of goods in commerce should know beyond doubt that what they are selling is safe -- and further, that it is immoral for them to place consumers in harm's way or treat their customers as guinea pigs or canaries in coal mines.
Though this sentiment was, framed in those terms, unobjectionable, turning that into a foundation for regulatory decision-making processes has proven difficult. Advocates framed the principle as the antithesis of risk assessment in determining how chemicals in commerce, nanotechnologies, and GMOs should be regulated. At that point, the debate stalled.
At a basic level, the precautionary principle sounds like common sense to most people, who are inculcated from an early age with admonitions to "look before you leap" or that it is "better to be safe than sorry." The practice is invoked, at some level, in people's daily lives. However, everyone's threshold of risk tolerance differs: Some people refuse to fly; others not only fly, but sky dive. In the regulatory context, this means that it is impossible to enforce a precautionary principle for an entire society without severely curtailing human action. This has been a perpetual problem with the principle as a regulatory tool.
To make it easier for the public to understand their goals, advocates have defined four elements of the precautionary principle:
-- Taking precautionary action before cause and effect relationships are established scientifically, if there are concerns that an activity might pose a threat to health or the environment.
-- Placing the burden of proof on the proponent of an activity (usually industry) in determining whether an activity or product is harmful.
-- Demanding "open, informed, and democratic" decision making structures for regulators, and thus placing approval of an activity under a political process.
-- Requiring alternatives assessment -- that is, shifting the central organizing principle of policymaking away from quantifying and managing risk, and toward minimizing risk to the greatest extent possible. Rather than asking what level of pollution is safe or acceptable, activists reason, society should constantly strive to find the least hazardous or dangerous alternatives available for achieving the same goals, and industry should be required to use them.
In early attempts to apply the principle to regulatory decision- making, advocates of the precautionary principle often got hung up on the first element above. The tendency was to argue that an activity or product should not be allowed until it had been proven not to cause harm. The problem was that, despite centuries of careful thought and study, proving a negative remains impossible, so applying this strict standard was never a credible approach. And parsing the issue -- for instance, defining whether a practice or substance gave rise to "concerns" -- proved too vague for the precautionary principle to withstand scrutiny from legislators or regulators.
In response to early failures, most precautionary principle advocates simplified the issue into one that simply demanded a reversal in the burden of proof standard. In order to win regulatory approval, the party that wants to make something new must convincingly show that the product, process or practice is not harmful. Advocates compare the precautionary principle in this form to the reversal of the burden of proof that drug companies face in phased trials.
While this makes sense in a vacuum, it has a clear stifling effect in the regulatory context. Drug companies invest millions of dollars and tremendous man-hours in convincing Federal Drug administration boards that a proposed drug is safe and effective. Now imagine having to go through a similar test for every new cleaning solution, every new nanoparticle created, every new genetic manipulation. The process would be clumsy and wasteful (and if drug approval is any model, a streamlined system likely would be more prone to mistakes -- allowing unsafe products onto the market while banning safe ones).
Policy reform advocates have called for regulators to focus on those substances that are most heavily used in commerce and those with characteristics that make them inherently more likely to be problematic. Demanding that some products and processes be proven safe -- but not forcing the issue for others -- is fundamentally at odds with the application of the "precautionary principle."
And this is where things get impossibly fuzzy. If the precautionary principle is based on the belief that the only moral course of action is to force the maker of a product to prove the product safe, invoking it occasionally is not enough. Practicing only half of a precautionary principle is not precautionary. Half a precautionary principle means either invoking an ethic with no follow-through, or more interestingly, the dramatic politicization of regulatory decision- making -- placing the advance of science and technology in a completely political forum.
Examples of both problems can be found in Europe, which has not found a solution to either. Almost all E.U. laws or regulations drafted this decade invoke the precautionary principle, but it is seldom used as a decision-making tool. The principle has been invoked in contexts like the emerging chemical policy reform known as REACH, under which the stringency of testing standards for chemicals likely will be correlated to the volume of their usage in commerce. This is a logical policy but does not, of course, rise to the level of the precautionary principle as defined above.
Europe also is grappling with the politicization of science and technology as a result of the precautionary principle, which was invoked for more than a decade in the battle over whether Europe would import GMOs. There was no clearly risk-based reason to exclude GMOs from the market, so regulators invoked the principle to justify the E.U.'s opposition to the imports. The E.U. was forced to change its law after the World Trade Organization judged the use of the principle to be a non-tariff barrier to trade. Nevertheless, the appeal of the precautionary principle can still be seen among the many European consumers who were sold on the notion that GMOs actually posed a danger to their health.
Precautionary Elements: Coming Into Practice
With de jure adoption of the precautionary principle making little headway, it is interesting to see the various ways in which the principle is being used. What is emerging in the United States is a new approach to risk and risk policy, one that does not demand purity or portray risk as morally repugnant. Instead, some of the elements of the four-part definition of the precautionary principle are coming to the fore in their own right. This does not necessarily add up to regulatory adoption of the precautionary principle, but it does signal that decision-makers are being pushed away from pure risk assessment and reliance on current science, and that a new decision-making environment is being ushered in.
The most powerful engine of precautionary thought right now is the advocacy of "alternatives assessment." This is seen both in shareholder campaigns and in pressure toward new security approaches for chemical, nuclear and other types of industrial facilities.
Crucial issues are becoming evident in the move toward creation of a "chemical risk" argument. Chemical risk holds that science (especially toxicology) is changing rapidly and new things are being learned. In this environment, consumer product companies -- the downstream customers of businesses involved in chemicals, genetic modification and nanotechnology -- run the risk that the products they are buying now eventually could be found to be contributing to health problems. Such discoveries could lead to lawsuits, or to rapid phase-outs of the hazardous substances -- leaving the downstream customers with significant challenges in reformulating their own products.
Given these possibilities, activists increasingly are appealing to consumer product companies (currently through their shareholders) to examine the substances they use and to assess which of them could in the future become controversial or problematic. The argument is that a smart company should immediately begin looking for alternatives to these substances, and should phase out the troublesome materials as quickly as possible. In practice, these phaseouts would not be based on current risk assessments or on any findings of danger. The substance or practice would be phased out simply because it is controversial. If this trend wins support, substances that are politically unpopular will be phased out with increasing frequency -- and one important element of the precautionary principle, alternatives assessment, will be in de facto operation.
The second area in which the precautionary principle is making strides is in the arena of facility security, and -- again -- it is through the alternatives assessment concept. In the wake of the 9/11 attacks, Americans began assessing their security from a terrorist's perspective and identifying potential risks. Chemical and nuclear plants have been seen by many as potentially attractive targets for terrorists.
Activists who had long been supportive of the precautionary principle saw an opportunity in the chemicals industry. They began to demand not simply that chemical manufacturing facilities should improve their security measures and safeguards, but that the companies should begin using "inherently safer technologies" as well. This approach is the production-side corollary to alternatives assessment. In effect, engineers are being asked to assess the potential risks associated with the operations of a chemical or nuclear facility and to determine what alternative means of production are available that would reduce the risks to the local populace if the facility were attacked by terrorists.
This kind of regimen is certainly more realistic for chemical and manufacturing facilities than it is for nuclear power plants. The alternatives assessment argument has been most effective in the context of municipal water systems, which are often located in populated areas and which naturally keep on hand significant stores of volatile chemicals (usually chlorine). Similarly, facilities that use ammonia in the creation of fertilizer fall into this group, as do the rail companies that transport chemicals like chlorine and ammonia.
Conclusion
The crucial question that arises is whether the meaning of the precautionary principle has undergone a fundamental shift in the last five years. In the 1990s, the term was used in the United States as the basis for a moral appeal to change the way government regulates products. Today, it is invoked as a social ethic and as a symbolic goal, but its advocates generally promote the principle's adoption only in a symbolic sense. This is a critical point.
When advocates of the precautionary principle meet next month in Maryland, it will be with the stated goal of assessing local, state, and federal governments' progress toward implementing the principle. But judging from the conference agenda, participants instead will be discussing regulatory changes within a risk-based framework. They will debate the degree to which Europe's REACH policy might be emulated in the United States and the ways in which a proliferation of state laws ultimately can be used to pressure the federal government for fundamental regulatory reform. The pure precautionary principle -- reverse burden of proof, precautionary action, alternatives assessment -- will not feature as prominently at the conference as will discussions of regulatory reform.
If the precautionary principle remains synonymous with "regulatory restructuring" -- rather than with "proving a substance or activity is not harmful" -- advocates of regulatory reforms have a genuine chance of succeeding. They will be speaking in terms that can be implemented, and they will still be appealing to the public with a defensible moral argument.
(c) 2006 Strategic Forecasting, Inc.
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From: Environment California .............................[This story printer-friendly]
May 25, 2006
SAN FRANCISCO IS POISED TO BAN TOXICS IN BABY PRODUCTS
Would be first city in the nation to do so.
[Rachel's introduction: The San Francisco Board of Supervisors has unanimously passed an ordinance that would ban two particularly nasty chemicals from children's toys and feeding products. The second reading is June 6 and then it's up to Mayor Gavin Newsome to sign or veto the ordinance.]
SAN FRANCISCO, CA -- The Stop Toxic Toys bill, which would ban two toxic chemicals -- phthalates and bisphenol-A -- from children's toys and feeding products, passed the San Francisco Board of Supervisors on Tuesday, May 23rd, in an 11-0 vote.
Phthalates (pronounced thay-lates) often used in soft PVC plastic children's toys, have been linked to reproductive birth defects, early onset of puberty, asthma, and reduced testosterone in boys. If signed into law, San Francisco would become the first city in the country to ban these chemicals. The European Union and at least twelve countries have passed bans or restrictions on the use of phthalates in products for small children.
Bisphenol-A, a known hormone disruptor, is a common ingredient in hard plastic baby bottles and has been shown to leach out of the plastic, especially in older bottles. Even at very low doses it has been linked to obesity, early onset of puberty, behavioral problems, reduced sperm production, increased cancer cell growth, and impaired immune function.
"Many parents would be shocked to learn that the plastic baby bottle they're giving their child could damage their health. When you look at the science behind these chemicals, there is no question that they ought to be banned from baby products," said Supervisor Fiona Ma, the author of the San Francisco bill.
"We cannot allow toxic chemicals to be used in products for young children, especially those specifically designed to be put into their mouths," said Rachel Gibson, Staff Attorney for {Environment California}. Environment California was the sponsor of California legislation -- AB 319 (Chan) -- that would have imposed a statewide restriction on the use of phthalates and bisphenol-A in children's toys and feeding products. "The California legislature failed to take appropriate action this year when it had the opportunity to do so. We applaud the San Francisco Board of Supervisors for taking this significant step to protect our most vulnerable population."
Supervisors Ma, Maxwell, Alioto-Pier, Ammiano, and McGoldrick co- authored the San Francisco Stop Toxic Toys bill. The final reading of the bill is June 6, after which it goes to Mayor Gavin Newsom for his signature or veto.
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Rachel L. Gibson Environmental Health Advocate & Staff Attorney Environment California 369 Broadway, Suite 200 San Francisco, CA 94133 (415) 622-0086 x304 (415) 622-0016 (fax) rgibson@environmentcalifornia.org www.environmentcalifornia.org
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From: Public Employees for Environmental Responsibility ...[This story printer-friendly]
May 24, 2006
EPA UNION PRESIDENTS INVOKE PRECAUTION TO PROTECT CHILDREN
[Rachel's introduction: The presidents of the unions representing scientists and technical staff of the U.S. Environmental Protection Agency (EPA) have written to EPA Administrator Stephen L. Johnson urging him to adopt a precautionary approach to children's exposure to pesticides when setting allowable exposures under the the Food Quality Protection Act. This is not the same as a blanket endorsement of the precautionary principle, but it's a step in the right direction.]
Stephen L. Johnson, Administrator U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460
Dear Administrator Johnson:
We Local Presidents of EPA Unions representing scientists, risk managers, and related staff, are writing to express our concern that EPA could betray the public trust by violating the intention of the Food Quality Protection Act (FQPA) to protect the Nation's infants, children, and susceptible subpopulations, unless the Agency adheres to principles of scientific integrity and sound science in the pesticide tolerance reassessments it is undertaking.
There are more than 20 neurotoxic organophosphate (OP) and carbamate pesticides scheduled for final tolerance decisions by EPA no later than August 3, 2006, as required by the FQPA. During the 1990s, the Agency reached partial cancellation agreements with the registrants of +certain OP pesticides, such as chlorpyrifos, methyl parathion, and diazinon, based on compelling information that these neurotoxic pesticides damage the developing nervous system of fetuses, infants and children (an effect known as "developmental neurotoxicity").
Those actions were consistent with the overarching precautionary intent of FQPA which requires that, in the absence of reliable data on toxicity or exposure, the Agency must ensure an adequate margin of safety for the health of the nation's infants, children, and susceptible subpopulations through the use of uncertainty factors in relevant analysis.
Accordingly, as EPA approaches the August 2006 statutory deadline for the determination of final tolerances for the remaining OP and carbamate pesticides, we urge the Agency to adhere to its principles of scientific integrity and employ the precautionary approach intended by the FQPA in assessing the cumulative and aggregate exposure and risk from the uses of these neurotoxicants. This approach -- compliance with the FQPA and our principles of scientific integrity -- is the only way to remain faithful to the public trust and ensure that our children will not be exposed to pesticides that may permanently damage their brains and nervous systems.
The partial cancellation agreements of the 1990's mostly addressed residential exposures, but did not adequately consider continued exposure through foods eaten. As risk assessors, we continue to be troubled by the Agency's failure to adequately consider exposure to neurotoxic pesticides by infants and children who commonly enter fields treated with these pesticides while accompanying their parents employed to perform post-application tasks. The children of farmworkers, living near treated fields, are also repeatedly exposed through pesticide drift onto outdoor play areas and through exposure to pesticide residues on their parents' hair, skin, and clothing.
Additionally, we are concerned that unborn fetuses may also be exposed to these neurotoxicants when pregnant women are employed to handle (mix, load, apply) these pesticides or are employed to enter treated areas to perform hand labor tasks following pesticide applications.
The Agency's own Scientific Advisory Panel (SAP) has expressed concern that the Pesticide Program's current approaches may not be sufficiently conservative, may underestimate the risks to infants and children, and do not adequately identify individuals that may be inherently sensitive to neurotoxicants. (May 25, 1999 SAP meeting)
We are confident that you share our sense of urgency about taking the necessary actions to protect the health of our Nation's children. As you are aware, in August 1999, EPA informed the public that it was issuing data call-in notices to pesticide registrants of cholinesterase-inhibiting OP pesticides and requiring submission of data on developmental neurotoxicity.
We are concerned that the Agency has not, consistent with its principles of scientific integrity and sound science, adequately summarized or drawn conclusions about the developmental neurotoxicity data received from pesticide registrants. Our colleagues within the Agency, including EPA's Inspector General (EPA IG), believe that it would be premature to conclude that there is a complete and reliable database on developmental neurotoxicity of pesticides (see Attachment) upon which to base any final tolerance reassessment decisions as required by the FQPA. Consequently, EPA's risk assessments cannot state with confidence the degree to which any exposure of a fetus, infant or child to a pesticide will or will not adversely affect their neurological development.
As you also know, in the absence of a robust body of data, FQPA requires EPA to use an additional 10-fold safety factor in its risk assessments when setting pesticide tolerances. Thus both statutory language and sound science require that the Agency continue to retain the 10-fold safety factor as a precaution when reassessing the tolerances for the remaining OP and carbamate pesticides given the existing uncertainty about developmental neurotoxicity.
Many influential proponents of agriculture have repeatedly expressed their concerns to EPA about properly coordinating with agricultural stakeholders, the U.S. Department of Agriculture (USDA), and producers when implementing FQPA. It appears that the Agency has inadvertently taken this to mean that the concerns of agriculture and the pesticide industry come before our responsibility to protect the health of our Nation's citizens. We are concerned that the Agency has lost sight of its regulatory responsibilities in trying to reach consensus with those that it regulates, and the result is that the integrity of the science upon which Agency decisions are based has been compromised.
Our colleagues in the Pesticide Program feel besieged by political pressure exerted by Agency officials perceived to be too closely aligned with the pesticide industry and former EPA officials now representing the pesticide and agricultural community; and by the USDA through their Office of Pest Management Policy. Equally alarming is the belief among managers in the Pesticide and Toxics Programs that regulatory decisions should only be made after reaching full consensus with the regulated pesticide and chemicals industry.
In the rush to meet the August 2006 FQPA statutory deadline, many steps in the risk assessment and risk management process are being abbreviated or eliminated in violation of the principles of scientific integrity and objectivity by which we as public servants are bound. Congress specifically asked EPA to take reasonable action to reduce the risk of pesticides for infants and children where existing uses posed a concern. We should honor the charge from Congress to protect the public health, unencumbered by political influences; therefore, at this time, we do not believe that the Agency should make any final tolerance reassessment decisions.
We therefore request the following:
1. Where data are insufficient for decision-making, that you make decisions based on the Precautionary Principle and add appropriate uncertainty factors to protect human health in conformity with the FQPA and our principles of scientific integrity.
2. Where developmental neurotoxicity studies are absent, it is imperative that the Agency continue to retain the 10-fold safety factor -- if not increase it -- as a precaution, when making final reregistration decisions for OP and carbamate pesticides.
3. That EPA issue an interim reregistration decision mandating that maximum protections -- engineering controls for handlers and longer re-entry intervals for postapplication labor- be put into place for agricultural uses of these pesticides; where this is not feasible, cancel these registrations, as EPA promised before. EPA issued PR Notice 2000-9 in 2000 to this effect (Worker Risk Mitigation for Organophosphate Pesticides) but then never carried through on this.
In its response to comments on this PR notice, EPA stated that the Agency will seek cancellation of uses if available risk mitigation measures, such as engineering controls and extended REI's, do not provide an adequate margin of safety and the risks outweigh the benefits.
Six years is an unacceptably long wait. It is time to act now, and act responsibly.
4. That you take steps to ensure that the Agency consider non- pesticide chemicals -- industrial and commercial -- in the same manner as pesticides with regard to their potential impact on the health of our nation's children.
Administrator Johnson, we ask that you adhere to your pledge to protect the public health of our nation's infants and children, ensure that final tolerance reassessment decisions are unbiased by outside political influences, and that any decisions be based on a transparent and complete database in conformity with the law, sound science, and our principles of scientific integrity. Until EPA can state with scientific confidence that these pesticides will not harm the neurological development of our nation's born and unborn children, there is no justification to continue to approve the use of the remaining OP and carbamate pesticides.
The undersigned take our civil service oath very seriously. We believe that it would be a perversion of the constitutional process and betrayal of the public trust for the agency to fail to adhere to the mandates of the FQPA. We recognize that under the Constitution our role is only to provide the above advice to you, while your role is to faithfully execute the laws entrusted to your administration. We believe that by providing this advice in the strongest possible terms we are fulfilling our duty and helping you to fulfill yours.
Very sincerely yours,
/S/
Dwight A. Welch, President,
NTEU Chapter 280, Washington, DC
/S/
Dave Christenson, President
AFGE Local 3607, Denver
/S/
Larry Penley, President
NTEU Chapter 279, Cincinnati
/S/
Patrick Chan, President
NTEU Chapter 295, San Francisco
/S/
Paul Scoggins, President
AFGE Local 1003, Dallas
/S/
Steve Shapiro, President
AFGE Local 3331, Washington, DC
/S/
Mark Coryell, President
AFGE Local 3907, Ann Arbor
/S/
Wendell Smith, President
ESC EPA -- Unit San Francisco
/S/
John O'Grady, President
AFGE Local 704, Chicago
Attachment 1
Examples of support for the conclusion that EPA cannot yet ensure that fetuses, infants and children will not suffer developmental neurotoxicity from exposure to neurotoxic pesticides:
(1) The January 10, 2006 Office of Inspector General Report, "Opportunities to Improve Data Quality and Children's Health through the Food Quality Protection Act" states that:
EPA's required pesticide testing does not include sufficient evaluation of behavior, learning or memory in developing animals.
EPA has no standard evaluation procedure for interpreting results from DNT tests.
EPA has not yet summarized or drawn conclusions about DNT which it has collected for pesticides.
(2) Not all scientists are in agreement with EPA that developmental effects of the OP pesticide chlorpyrifos occur only at doses above those which cause cholinesterase inhibition, or even that they occur exclusively through the mechanism of cholinesterase inhibition. (see for example: Cholinergic systems in brain development and disruption by neurotoxicants: nicotine, environmental tobacco smoke, organophosphates, Toxicol. Pharmacol.198: 132-151 (2004; Guidelines for developmental neurotoxicity and their impact on organophosphate pesticides: a personal view from an academic perspective,
Neurotoxicology 25(4): 631-640 (2004).
(3) EPA has data demonstrating that the immature are more sensitive to the OP pesticide malathion than adults (see for example Developmental Neurotoxicity Study in Rats, August 22, 2002. Memorandum. MRID 45646401; and Special Study, Effects on Cholinesterase Inhibition in Adult & Juvenile CD Rats, Companion Study to Developmental Neurotoxicity Study 870.6300., Tox Review No. 0050550, MRID No. 45566201).
(4) EPA has also received, but has not released for review by the SAP or external parties, data suggestive of direct effects of malathion on brain structure concurrent with cholinesterase inhibition and changes in behavior (personal communication, Dr. Brian Dementi; see also paragraphs #8, 9,11,12,13, and 17 of the June 20, 2005 letter to you from Dr. Dementi in which he advised you of these concerns).
(5) More data are accumulating indicating differential sensitivity to other OP pesticides greater than the 10-fold safety factor required by FQPA (see for example Paraoxonase polymorphisms, haplotypes and enzyme activity in Latino mothers and newborns, Pharmacogenetics and Genomics 16: 183-190 (2006).
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From: FishUpdate.com .....................................[This story printer-friendly]
May, 30 2006
FREE TRADE "MADNESS" THREATENS WILD FISH STOCKS IN SCOTLAND
[Rachel's introduction: Since the 1937 Diseases of Fish Act, the import of live salmon into the UK [United Kingdom] has been virtually impossible, but this Act is now subservient to the EU's [European Union's] overriding founding principle of free trade between member states... "It is simply unacceptable for free trade dogma and profit motives to take precedence over the integrity of the health of our native fish stocks. Basic precautionary principles must be upheld."]
SCOTLAND'S wild fish interests are launching a major campaign to expose the serious risk of devastating and deadly fish diseases being introduced to the country through the import of live fish. The Association of Salmon Fishery Boards and the Rivers and Fisheries Trusts of Scotland claim the spread of diseases and parasites in both wild and farmed fish is almost always due to the movement of live fish.
Against a background of some 30 million salmon eggs being imported from Norway to Scotland this year, there is mounting pressure from some Norwegian-owned salmon farming companies for them to be permitted to transfer juvenile salmon to their sites in the west Highlands and the Hebrides. This, the organisations claim, is despite the fact that there is more than adequate capacity within Scotland's salmon smolt producing companies to meet the demands of the industry for juvenile fish -- to the continuing benefit of employment in remote areas of Scotland. In addition some of Scotland's indigenous salmon farmers are fundamentally opposed to live fish imports.
Trade in live fish from Norway is currently prohibited under EU regulations until certain standards within Norway have been achieved and disease free zones have been approved. However it is understood that these conditions could soon be met -- effectively giving the green light to trade in live salmon from Norway. This is despite the fact that Norway currently has a much lower fish health status than the UK where the benefits of island status have long been reinforced by a history of strict fish health controls. Since the 1937 Diseases of Fish Act, the import of live salmon into the UK has been virtually impossible, but this Act is now subservient to the EU's overriding founding principle of free trade between member states and EFTA countries.
Andrew Wallace, Director of the Association of Salmon Fishery Boards and Policy Director of the Rivers and Fisheries Trusts of Scotland, explained: "Norway's dubious history of disease prevention and control is ringing serious alarm bells for both Scottish wild fisheries managers and also Scottish fish farmers. Diseases such as Gyrodactylus salaris and Infectious Salmon Anaemia (ISA) are endemic in both Norwegian farmed and wild salmon populations with nine outbreaks of ISA alone in the last year. The trade in live fish is recognised as being the principal means by which these diseases are spread. There therefore can be no doubt that any increase in the trade of live fish will expose the UK's unique fish health position to markedly increased and unacceptable risks. Norway's poor record on disease control was highlighted in the recent EFTA Surveillance Authority report, which does nothing to reassure us that Norway has adequate mechanisms to prevent the export of serious fish diseases to the UK".
Mr Wallace continued: "Live fish imports could have disastrous implications for the conservation status of many of our rivers, 17 of which are specifically designated under the EC Habitats and Species Directive, and also for Scotland's salmon angling industry, which is worth some £80 million a year. We are particularly concerned about the possible introduction of Gyrodactylus salaris (Gs). This is perhaps as serious a disease for salmon health and stocks as Foot and Mouth is for farm livestock -- with one critical difference: once established, Gs could be impossible to eradicate".
Paul Knight, Executive Director of the Salmon and Trout Association, commented: "Live fish imports are completely unnecessary and no matter what safeguards are put in place, they can never be absolute. Just one Gs-infected fish could spell disaster from which recovery may well be impossible. It is simply unacceptable for free trade dogma and profit motives to take precedence over the integrity of the health of our native fish stocks. Basic precautionary principles must be upheld". The campaign against live fish imports has been set in motion by the extensive distribution of a detailed letter, which has been sent to selected MEPs, all MSPs, the DGs of relevant EU Directorates (SANCO / Environment / Fisheries), Scottish Ministers, DEFRA, SEERAD and SNH. The letter is signed by the Association of Salmon Fishery Boards and the Rivers and Fisheries Trusts of Scotland and countersigned by every significant fisheries management and angling body in Scotland together with many others elsewhere in the UK.
Fishupdate.com (C) 2006
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From: National Law Schoool of India .......................[This story printer-friendly]
July 12, 2002
PRECAUTION IN INTERNATIONAL ENVIRONMENTAL LAW: A VIEW FROM INDIA
[Rachel's introduction: "Another new norm of international environment law is the precautionary principle. This is basically a duty to foresee and assess environmental risks, to warn potential victims of such risks and to behave in ways that prevent or mitigate such risks."]
By Shyam Divan
A. INTRODUCTION
In international law, a distinction is often made between hard and soft law. Hard international law generally refers to agreements or principles that are directly enforceable by a national or international body. Soft international law refers to agreements or principles that are meant to influence individual nations to respect certain norms or incorporate them into national law. Although these agreements sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on their own in a court.
If a treaty or convention does not specify an international forum that has subject matter jurisdiction, often the only place to bring a suit with respect to that treaty is in the member state's domestic court system. This presents at least two additional hurdles. If the member state being sued does not have domestic implementing legislation in place to hear the dispute, there will be no forum available. Even in the event that the domestic legislation provides for such suits, since the judges who decide the case are residents of the country against which it is brought, potential conflicts of interest arise.
Only nations are bound by treaties and conventions. In international forums, such as the International Court of Justice (ICJ), countries must consent to being sued. Thus, it is often impossible to sue a country. The final question in the jurisdictional arena is who may bring a suit. Often, only countries may sue countries. Individual citizens and non-governmental organisations (NGOs) cannot. This has huge repercussions. First, the environmental harm must be large and notorious for a country to notice. Second, for a country to have a stake in the outcome of the subject matter, some harm may have to cross the borders of the violating country into the country that is suing. Finally, even if transboundary harm does exist, the issue of causation, especially in the environmental field, is often impossible to prove with any certainty.
The enforcement issue is one where advocates for a safer environment often find themselves stymied. Even if a treaty or convention provides for specific substantive measures to be taken by a country (many treaties merely provide 'frameworks'), specifies a forum for dispute resolution and authorizes sanctions for non-compliance, international law remains largely unenforceable. A country cannot be forced to do what it is not willing to do. One can sanction the country, order damages, restrict trade, or, most frequently, publicize non- compliance. But beyond that, if a country will not comply, there is very little to be done.
International institutions are generally not responsible for directly implementing and enforcing international environmental law, but they often play important monitoring, informational and diplomatic roles. For example, the 1992 Convention on the Conservation of Biological Diversity (Biodiversity Convention)(1) created a new international body, the Committee on Sustainable Development (CSD). The CSD lacks the power to bring enforcement actions against either governments or private parties, but it plays a role in implementing the Biodiversity Convention. The CSD helps monitor national compliance efforts by requiring member nations to submit annual reports. Through its meetings and publications, the CSD also provides a forum to discuss and debate issues associated with global protection of biological diversity and forests.
B. SOME CORE ISSUES RELATING TO INTERNATIONAL ENVIRONMENTAL LAW
Consider for a moment why any law is enacted -- domestically or internationally. Some would maintain that it is a moral statement about behaviour that a society cannot tolerate. Some would argue that certain conduct is outlawed to deter that conduct, which is why we also attach a penalty. Some would argue, especially in light of the inefficiencies in enforcement, that laws socialize society's members to behave in a certain way by defining a code.
What is the purpose of international environmental law -- is it a moral statement, a deterrence, or a socializing tool? If it is a moral statement, which many of the framework conventions seem to be, is it merely aspirational? Do we honestly believe that all nations will achieve all the ideals expressed in all the agreements? Or do we, as a global community, simply like to think of ourselves as the kind of people who believe in these things? If it is intended as deterrence, why are there not more international forums for dispute resolution, more international bodies empowered to enforce agreements, more substantive requirements, and more 'hard law' self-executing agreements? If there were, would any nation sign them? If it is intended as a socialization technique, is it working? Are nations more environmentally aware?
If ultimately all international environmental law is unenforceable, what good is it? Does it accomplish anything to find a country out of compliance with a treaty? What about publicity? What if the economic benefits of a project such as the Narmada Valley Project, are believed by government officials to outweigh the negative effects of the publicity?
The practice of relying on domestic implementing legislation to enforce international environmental agreements leave state parties in the position of having different obligations under the same treaty, depending on how their legislative, executive and judicial bodies interpret and implement the treaty. Is this fair? What about the costs and administrative burdens that are associated with creating and enforcing legislation? Does this put richer countries in a better position to comply with treaties?
What is the purpose of the informational roles of international institutions? Will more knowledge about the global environment and our impacts on it lead to better compliance? Or will so many new issues lead to non-compliance due to uncertainty? If it appears to the average citizen that virtually everything she does has a negative environmental impact, will she not cease to try to change any behaviour?
C. INDIA'S INTERNATIONAL OBLIGATIONS
India has obligations under numerous international treaties and agreements that relate to environmental issues. As a contracting party, India must have ratified a treaty, that is, by adopting it as national law before it came into force, or by acceding to it after it has come into force. For a treaty to enter into force, the requisite number of countries must ratify the treaty, which then has the force of international law.
Specific obligations under any treaty vary, depending on the treaty itself. The nature and degree of compliance and implementation depend on a number of factors, among them: (1) the capabilities and staff of an international institution charged with coordinating national compliance efforts, if there is one; (2) the willingness of other state parties to enforce or comply with the treaty; (3) the political agenda of the government and popular support; (4) trade and diplomatic pressures brought to bear by other countries; and (5) sometimes, judicial or NGO involvement through court cases and publicity.
INDIA'S TREATY OBLIGATIONS
1. The Antarctic Treaty (Washington, 1959) 402 UNTS 71. Entered into force 23 June 1961. India ratified with qualifications, 19 August 1983.
2. Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar, 1971). 11 I.L.M. 963 (1972). Entered into force 21 December 1975. India acceeded, October 1, 1981.
3. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972). 11 I.L.M. 1358 (1972). Entered into force 17 December 1975. India signed, 16 November 1972.
4. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 1973) 12 I.L.M. 1055 (1973). Entered into force 1 July 1975. India signed, 9 July 9 1974; ratified 20 July 1976.
5. Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) (London, 1978). Entered into force 2 October 1983. India ratified with qualifications, 24 September 1986.
6. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979) 19 I.L.M. 15 (1980). Entered into force 1 November 1983. India signed, 23 June 1979; ratified 4 May 1982.
7. Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 1980). 19 I.L.M. 841 (1980). Entered into force 7 April 1982. India ratified, 17 June 1985.
8. United Nations Convention on the Law of the Sea (Montego Bay, 1982). 21 I.L.M. 1261 (1982). Entered into force 16 November 1994. India signed, 10 December 1982.
9. Convention for the Protection of the Ozone Layer (Vienna, 1985). 26 I.L.M. 1529 (1987). Entered into force 22 September 1988. India ratified, 18 March 1991.
10. Protocol on Substances That Deplete the Ozone Layer (Montreal, 1987). 26 I.L.M. 1550 (1987). Entered into force 1 January 1989. India acceded, 19 June 1992.
11. Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer (London, 1990). 30 I.L.M. 541 (1991). Entered into force 10 August 1992. India acceded, 19 June 1992.
12. Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel, 1989). 28 I.L.M. 657 (1989). Entered into force 5 May 1992. India signed, 5 March 1990; ratified 24 June 1992.
13. United Nations Framework Convention on Climate Change (Rio de Janeiro, 1992). 31 I.L.M. 849 (1992). Entered into force 21 March 1994. India signed, 10 June 1992; ratified 1 November 1993.
14. Convention on Biological Diversity (Rio de Janeiro, 1992). 31 I.L.M. 818 (1992). Entered into force 29 December 1993. India signed, 5 June 1992; ratified 18 February 1994.
15. Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris, 1994). 33 I.L.M 1332 (1994). Entered into force, 26 December 1995; India signed, 14 October 1994; ratified 17 December 1996.
16. International Tropical Timber Agreement (Geneva, 1994). 33 I.L.M. 1016 (1994). Entered into force 1 January 1997. India signed, 17 September 1996. India ratified 17 October 1996.
17. Protocol on Environmental Protection to the Antarctica Treaty (Madrid, 1991). Entered into force 15 January 1998.
D. ESTABLISHED NORMS OF INTERNATIONAL ENVIRONMENTAL LAW
Norms are general legal principles that are widely accepted. This acceptance is evidenced in a number of ways, such as international agreements, national legislation, domestic and international judicial decisions, and scholarly writings. The leading norms in the field of international environmental law are addressed below:
(1) Foremost among these norms is Principle 21 of the 1972 Stockholm Declaration on the Human Environment. Principle 21 maintains that 'States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction".(2)
(2) Another widely shared norm is the duty of a state to notify and consult with other states when it undertakes an operation that is likely to harm neighbouring countries' environments, such as the construction of a power plant, which may impair air or water quality in downwind or downstream states.
(3) Over and above the duty to notify and consult, a relatively new norm has emerged whereby states are expected to monitor and assess specific environmental conditions domestically, and disclose these conditions in a report to an international agency or international executive body created by an international agreement, and authorised by the parties to the agreement to collect and publicize such information.
(4) Another emerging norm is the guarantee in the domestic constitutions, laws or executive pronouncements of several states, including India,(3) Malaysia, Thailand, Indonesia, Singapore and the Philippines, that all citizens have a right to a decent and healthful environment. In the United States, this fundamental right has been guaranteed by a handful of states but not by the federal government.
(5) Most industrialized countries subscribe to the polluter pays principle. This means polluters should internalise the costs of their pollution, control it at its source, and pay for its effects, including remedial or cleanup costs, rather than forcing other states or future generations to bear such costs. This principle has been recognized by the Indian Supreme Court as a 'universal' rule to be applied to domestic polluters as well.(4) Moreover, it has been accepted as a fundamental objective of government policy to abate pollution.(5)
(6) Another new norm of international environment law is the precautionary principle. This is basically a duty to foresee and assess environmental risks, to warn potential victims of such risks and to behave in ways that prevent or mitigate such risks. In the context of municipal law, Justice Kuldip Singh of the Supreme Court has explained the meaning of this principle in the Vellore Citizens' Welfare Forum Case,(6) which is excerpted later in this section.
(7) Environmental impact assessment is another widely accepted norm of international environmental law. Typically, such an assessment balances economic benefits with environmental costs. The logic of such an assessment dictates that before a project is undertaken, its economic benefits must substantially exceed its environmental costs. India has adopted this norm for select projects which are covered under the Environmental Impact Assessment (EIA) regulations introduced in January, 1994.(7)
(8) Another recent norm is to invite the input of non-governmental organizations (NGOs), especially those representing community-based grassroots environmental activists. This NGOs participation ensures that the people who are likely to be most directly affected by environmental accords will have a major role in monitoring and otherwise implementing the accord. This principle is mirrored in the Indian government's domestic pollution control policy(8) and the national conservation policy,(9) and is given statutory recognition in the EIA regulations of 1994. The Supreme Court has urged the government to draw upon the resources of NGOs to prevent environmental degradation.(10)
(9) In October 1982, the United Nations General Assembly adopted the World Charter for Nature and Principles of Sustainable Development. The agreement expressly recognised the principle of sustainable development, defined as using living resources in a manner that 'does not exceed their natural capacity for regeneration' and using 'natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of future generations.' The principle of sustainable development was also acknowledged in the 1987 report Our Common Future, published by the United Nations World Commission on Environment and Development. This report defined sustainable development as 'humanity's ability... to ensure that [development] meets the need of the present generation without compromising the ability of future generations to meet their needs.' The Supreme Court(11) as well as the Indian government have recognised the principle of sustainable development as a basis for balancing ecological imperatives with developmental goals.(12)
(10) Intergenerational equity is among the newest norms of international environmental law. It can best be understood not so much as a principle, but rather as an argument in favour of sustainable economic development and natural resource use. If present generations continue to consume and deplete resources at unsustainable rates, future generations will suffer the environmental (and economic) consequences. It is our children and grandchildren who will be left without forests (and their carbon retention capacities), without vital and productive agricultural land and without water suitable for drinking or sustaining cultivation or aquatic life. Therefore, we must all undertake to pass on to future generations an environment as intact as the one we inherited from the previous generation.
Proponents of intergenerational equity maintain that the present generation has a moral obligation to manage the earth in a manner that will not jeopardize the aesthetic and economic welfare of the generations that follow. From this moral premise flow certain ecological commandments: 'Do not cut down trees faster than they grow back. Do not farm land at levels, or in a manner, that reduce the land's regenerative capacity. Do not pollute water at levels that exceed its natural purification capacity.'
In State of Himachal Pradesh v. Ganesh Wood Products(13) the Supreme Court recognized the significance of inter-generational equity and held a government department's approval to establish forest-based industry to be invalid because 'it is contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and considerations of sustainable growth and inter- generational equity. After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations.'(14)
(11) At the 1982 United Nations Conference on the Law of the Sea (UNCLOS),(15) developing countries, led by India, articulated the norm that certain resources, such as the deep seabed, are part of the common heritage of mankind and must be shared by all nations.
(12) The 1992 Rio de Janeiro Earth Summit articulated the norm of common but different responsibilities. With regard to global environmental concerns such as global climate change or stratospheric ozone layer depletion, all nations have a shared responsibility, but richer nations are better able than poorer nations to take the financial and technological measures necessary to shoulder the responsibility.
E.JUS COGENS, HEALTHFUL ENVIRONMENT, SUSTAINABLE DEVELOPMENT
As mentioned, norms of customary international law evolve through custom and usage. Not all norms are of equal importance however, some being accorded the status of fundamental norms. The category of fundamental norms comes under the doctrine of jus cogens, or the doctrine of peremptory norms. The 1969 Vienna Convention on the Law of Treaties(16) serves to clarify the concept in Article 53 as follows:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
The doctrine of jus cogens is extremely limited and extends to only a handful of norms, the most long-standing of which are the prohibitions against the slave trade, piracy and genocide. Many scholars also believe that the norm expressed in Principle 21 of the Stockholm Convention has risen to jus cogens status. Principle 21 is based on the Roman maxim, sic utero tuo et alienum non laedas, which roughly means 'do not behave in a way that hurts your neighbour.' However, again the question arises, what good does an international peremptory norm, like an international agreement, achieve?
Consider some of the other norms addressed above, such as the right to a healthful environment. Is there to be one standard by which all environments are judged, or is it a relative concept? If cutting down trees for firewood destroys the environment, but provides life- sustaining fuel, which right will prevail? Which right should prevail? How much weight does each of the two rights carry when the concept of intergenerational equity is introduced?
When considering moral ideals such as the principles of a common heritage and intergenerational equity, what incentives do countries have to try to mould their practices to achieve these ideals? How can countries be better motivated? Is saving the environment for its own sake going to appeal to the majority of people, or does there have to be a more direct benefit, like the idea that we may, by destroying an ecosystem, inadvertently destroy the cure for cancer?
What exactly is 'sustainable development'? What is 'sustainable'? Could not intelligent and informed people differ over whether producing more minerals or preserving a landscape is sustainable. If so, which is more important? And what is 'development'? Factories that employ thousands, give a country more industry with which to compete in the world market, but discharge effluents into the water and produce piles of hazardous waste. Do some countries have more of a right to development and less of an obligation to ensure sustainability and vice versa? How much more do industrialised nations need to develop? Have they not gone far enough? Who is to judge?
F. EXTRACTS FROM VELLORE CASE
At the end of a judicial career, Justice Kuldip Singh of the Supreme Court issued comprehensive directions to clean up the mess created by the leather tanneries of Tamil Nadu. In the following excerpt from this leading case, Justice Singh borrowed international law norms and applied them to the local milieu.
VELLORE CITIZENS' WELFARE FORUM v. UNION OF INDIA
AIR 1996 SC 2715
KULDIP SINGH, J.:
* * *
The traditional concept that development and ecology are opposed to each other, is no longer acceptable. 'Sustainable Development' is the answer. In the International sphere 'Sustainable Development' as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called 'Our Common Future'. The Commission was chaired by the then Prime Minister of Norway Ms.G.H.Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, jointly came out with a document called 'Caring for the Earth' which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio which saw the largest gathering of world leaders ever in the history -- deliberating and chalking out a blue print for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions was signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio 'Sustainable Development' has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. 'Sustainable Development' as defined by the Brundtland Report means 'development that meets the needs of the present without compromising the ability of the future generations to meet their own needs'. We have no hesitation in holding that 'Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalized by the International Law Jurists.
Some of the salient principles of 'Sustainable Development', culled- out from Brundtland Report and other international documents, are inter-generational equity; use and conservation of natural resources; environmental protection; the precautionary principle; polluter pays principle; obligation to assist and cooperate, eradication of poverty and financial assistance to the developing countries. We are, however, of the view that 'the precautionary principle' and 'the polluter pays' principle are essential features of 'Sustainable Development'. The 'precautionary principle'-- in the context of the municipal law - means:
(i) Environmental measures -- by the State Government and the statutory authorities -- must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The 'Onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign.
'The polluter pays' principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action vs. Union of India (The Bichhri Case), 1996 (3) SCC 212. The Court observed, 'We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country'. The Court ruled that 'Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on'. Consequently the polluting industries are 'Absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas'. The 'polluter pays' principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. [Remedying] the damaged environment is part of the process of 'Sustainable Development' and as such [the] polluter is liable to pay the cost to the individual [who] suffers as well as the cost of reversing the damaged ecology.
[The court then set out the provision of the Constitution as well as the Water Act, Air Act and Environment (Protection) Act]. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.
Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law. For support we may refer to Justice H.R.Khanna's opinion in Addl. Distt. Magistrate Jabalpur vs. Shivakant Shukla (AIR 1976 SC 1207), Jolly George Verghese's case (AIR 1980 SC 470) and Gramophone Company's case (AIR 1984 SC 667).
The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment. [The court proceeded to quote a paragraph from Blackstone's commentaries on the Laws of England (1876) in respect of 'nuisance']. Our legal system having been founded on the British Common Law the right of a person to pollution free environment is a part of the basic jurisprudence of the land.
G. CONSTITUTIONAL PROVISIONS RELATING TO INDIA'S INTERNATIONAL OBLIGATIONS
Article 51(c) of the Constitution sets out a Directive Principle requiring the state to foster respect for international law and treaty obligations. Article 253 of the Constitution empowers Parliament to make laws implementing India's international obligations as well as any decision made at an international conference, association or other body. Article 253 states : 'Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body'. Entry 13 of the Union List covers : 'Participation in international conferences, associations and other bodies and implementing of decisions made thereat.' In view of the broad range of issues addressed by international conventions, conferences, treaties and agreements, Article 253 read with Entry 13 apparently gives Parliament the power to enact laws on virtually any entry contained in the State List.
Parliament has used its power under Article 253 read with Entry 13 of the Union List to enact the Air (Prevention and Control of Pollution) Act of 1981 and the Environment (Protection) Act of 1986.(17)7 The preambles to both laws state that these Acts were passed to implement the decisions reached at the United Nations Conference on the Human Environment held at Stockholm in 1972. At the conference, members of the United Nations agreed to work to preserve the world's natural resources, and called on each country to carry out this goal.
The broad language of Article 253 suggests that in the wake of the Stockholm Conference in 1972, Parliament has the power to legislate on all matters linked to the preservation of natural resources. Parliament's use of Article 253 to enact the Air Act and Environment Act confirms this view.
H. ADOPTING OVERSEAS NORMS
The Supreme Court has occasionally looked at pollution standards abroad to strengthen local environmental regulation. This is illustrated by the Motor Vehicle Pollution case filed by Mr. M.C. Mehta in the Supreme Court.
On April 16, 1999, the Supreme Court targetted diesel vehicles, which were blamed for more than 90 per cent of the Nitrogen Oxide and respirable particulate matter (RSPM) in Delhi's air. Noting that the California Air Resource Board had on 27 August 1998 formally designated diesel particulate as a toxic air contaminant, and the amicus curiae's request to suspend the registration of diesel vehicles in Delhi, the court adjourned the case to April 29, 1999 to consider submissions on the issue.(18)8
On the adjourned date a bench headed by Chief Justice A. S. Anand imposed super norms for vehicles registered in the National Capital Region (NCR), which 'appeared appropriate' to the bench.(19)9 The court required all private vehicles registered after 1 June 1999 to conform to Euro I norms and those registered after 1 April 2000 to meet the Euro II norms. Diesel taxi's were prohibited in the NCR unless they conformed to Euro II norms. The Euro norms are European Community standards that have been enforced across Europe. On 13 May 1999,(20)0 the court clarified that what it meant by the 'Euro I norms' were the India 2000 norms, notified by the Central Government on 28 August 1997. In other words, the court advanced the statutory emission norms that were to come into effect on 1 April 2000 to 1 June 1999; and introduced more stringent emission standards (Euro II) with effect from 1 April 2000. The Euro II norms were re-christened 'Bharat Stage II' standards by the Central Government and were notified through the Central Motor Vehicles (Third Amendment) Rules of 2000.
I. GLOBAL ENVIRONMENTAL GROUPS
An emerging trend in India is the impact of Global NGOs in influencing domestic environmental law and policy. This is not an entirely new development, since the assistance of say IUCN in helping the local groups campaigning against the Silent Valley project is well documented. Greenpeace reports played a role in prompting the Supreme Court of India to clamp down on the import of hazardous waste into the country for recycling. It was only pursuant to directions issued by the Supreme Court in the public interest litigation, Research Foundation for Science, Technology and Natural Resource Policy v. Union of India that the import of hazardous waste was banned. Likewise, a petition has been recently filed in the Calcutta High Court relating to the adverse environmental impact of PVC. This petition too relies heavily on a report prepared by Greenpeace. Global NGOs are attempting to spur governments into adopting local regulations on the basis of environmental standards and norms that have been invoked in jurisdictions elsewhere.
1. 1 Reprinted in 31 I.L.M. 818 (1992) and P.Birnie and A.Boyle, Basic Documents on International Law and Environment 390 (1995).
2. 2 Emphasis supplied. Reprinted in P.Birnie and A.Boyle, id. at 1.
3.
3 The fundamental right to life guaranteed under Article 21 of the Indian Constitution has been interpreted by the Supreme Court to include the right to a wholesome environment. Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 424.
4.
4 The Bichhri Case (Indian Council for Enviro-Legal Action v. Union of India), AIR 1996 SC 1446; and Vellore Citizens' Welfare Forum v. Union of India, AIR 1996 SC 2715.
5. 5 Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of Pollution para 3.3 (26 February 1992).
6. 6 Supra note 4. In A.P. Pollution Control Board v Prof. M.V. Nayudu AIR 1999 SC 812 the Supreme Court traced the development of the precautionary principle.
7.
7 The EIA regulations are extensively dealt with in the Large Projects chapter.
8.
8 Supra note 5, at para 11.1.
9. 9 Ministry of Environment and Forests, Government of India, National Conservation Strategy and Policy Statement on Environment and Development para 8.7 (June, 1992).
10. 10 Indian Council for Enviro-Legal Action v Union of India (CRZ Notification Case) 1996 (5) SCC 281.
11. 11 Vellore Citizens' Welfare Forum v Union of India AIR 1996 SC 2715.
12. 12 Supra note 9, at paras 1.1, 1.3.
13. 13 AIR 1996 SC 149, 163. Also see CRZ Notification Case, Supra note 10, where the court expressed its concern at the adverse ecological effects which will have to be borne by future generations.
14. 14 Id.
15. 15 Reprinted in 21 I.L.M. 1261 (1982).
16. 16 Reprinted in 8 I.L.M. 679 (1969).
17. 1 7 S. Jagannath v Union of India (Shrimp Culture Case) AIR 1997 SC 811, 844, 846.
18. 18 1999 (6) SCC 9.
19. 19 1999 (6) SCC 12.
20. 20 1999 (6) SCC 14.
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Rachel's Precaution Reporter offers news, views and practical examples of the Precautionary Principle, or Foresight Principle, in action. The Precautionary Principle is a modern way of making decisions, to minimize harm. Rachel's Precaution Reporter tries to answer such questions as, Why do we need the precautionary principle? Who is using precaution? Who is opposing precaution?
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