Transcript Lecture 5: Cold War Scientists and the Denial of Global

The Precautionary Principle and the
Burden of Proof
Naomi Oreskes
ENVR 102
Winter 2008
Do we have to prove the benefit of
nature?
And if something has to be proved, who has
the burden of proof?
Those who want to protect nature from
damage, or those who don’t?
19th century: Emerson, Thoreau, Muir
Early 20th: Roosevelt
Value of nature discussed in qualitative terms:
beauty, character, manhood, connection to sacred…
Didn’t think this needed to be proved.
Not quantifiable, even ineffable.
How could you put a dollar value on the worth of
American manhood? Of feeling the hand of God?
Mid 20th century: Different Approach
• Risk assessment
• Cost-benefit analysis
• Ecosystem services
• All attempts to demonstrate value of nature.
– To prove its value in a modern world that calculates
value in dollar terms. (Fight fire with fire)
– To counter criticisms that environmental protection isn’t
worth the cost. (Pollution control, but also habitat
restoration, nature preservation, etc.)
Common criticism of CBA:
costs of regulation are
generally easy to calculate
(e.g. scrubber on a power
plant), but the value of
something like clean air is
hard to assess.
CBA is intrinsically biased
against regulation, against
environmental protection
One response:
Quantify value of public goods, like
clean air, water, beautiful views
In Del Mar, house with view of ocean costs
200,000 more than one without.
Value of ocean view easy to calculate.
CBA is a tool, can be used in
diverse ways.
Nevertheless, in practice it has often meant
placing a burden on those who wish to
protect the environment to demonstrate that
the proposed protection will be worth the
cost.
Value gained is at least as great as the cost
of implementation.
In USA, CBA has been
dominant approach
Particularly in last decade….
Alternative approach: precaution
Often, environmental harms are hard to
predict. When potential harms are uncertain,
one should err on the side of caution.
Burden of proof should not be on those who
think there might be harm, but on those who
insist there won’t be.
Err on the side of caution
An ounce of prevention is worth a pound of
cure.
A stitch in time saves nine.
The law of unintended consequences
Precautionary principle now
dominant approach in Europe
What exactly is the principle?
Wingspread Statement, 1998
Science and Environmental Health Network
“We believe existing environmental
regulations and other decisions,
particularly those based on risk
assessment, have failed to adequately
protect human health and the
environment, as well as the larger system
of which humans are but a part….
“We believe there is compelling evidence
that damage to humans and the
worldwide environment, is of such
magnitude and seriousness that new
principles for conducting human activities
are necessary.”
“While we realize that human activities
may involve hazards, people must
proceed more carefully than has been
the case in recent history. Corporations,
government entities, organizations,
communities, scientists and other
individuals must adopt a precautionary
approach to all human endeavors.”
“Therefore it is necessary to
implement the Precautionary
Principle: Where an activity raises
threats of harm to the environment or
human health, precautionary
measures should be taken even if
some cause and effect relationships
are not fully established
scientifically.”
1982 World Charter for Nature,
UN General Assembly
“Activities which are likely to cause irreversible
damage to nature shall be avoided and
Activities which are likely to pose a significant
risk to nature shall be preceded by an
exhaustive examination; their proponents
shall demonstrate that expected benefits
outweight potential damage to nature, and
where potential adverse effects are not fully
understood, the activities should not
proceed.”
1992 U.N. Framework Convention on
Climate Change,
(signed by President George H.W. Bush)
“In order to protect the environment, the
precautionary approach shall be widely
applied by States according to their
capabilities. Where there are threats of
serious or irreversible damage, lack of full
scientific certainty shall not be used as a
reason for postponing cost-effective
measures to prevent environmental
degradation.”
(Article 15)
European Commission, 2000 :
"The precautionary principle applies where
scientific evidence is insufficient, inconclusive or
uncertain and preliminary scientific evaluation
indicates that there are reasonable grounds for
concern that the potentially dangerous effects
on the environment, human, animal or plant
health may be inconsistent with the high level of
protection chosen by the EU".
The January 29, 2000
Cartagena Protocol on Biosafety:
(issue of GMOs)
"Lack of scientific certainty due to
insufficient relevant scientific information
…shall not prevent the Party of import, in
order to avoid or minimize such potential
adverse effects, from taking a decision, as
appropriate, with regard to the import of the
living modified organism in question.”
http://www.cbd.int/biosafety/
Since 2000, Official Policy of European Union
• Basic idea much older
• Vorsorgeprinzip: foresight planning
• German Social Theory 1930s
– Risk prevention
– Ethical responsibility of nations and other
organizations to avoid harm, including anticipating
negative effects
– Fallibility: technology has unintended consequences
– Planning: government role in anticipating future
problems
Today, associated with six main ideas
1) Delay is costly, sometimes irreversible
“Preventative anticipation”
Don’t delay until the child is dead to go to the doctor.
We don’t wait until a flu has reached pandemic
proportions before trying to develop vaccine.
Actual example: Europe in the 1980s
Don’t wait until forests are all dead before acting to stop
acid rain
2) Prudence requires ample margin of error,
especially when stakes are high
– Don’t wouldn’t kill the penultimate breeding pair of
polar bears
– You shouldn’t allow arsenic in water to approach
toxic levels.
– You build in a margin of safety
– More important the issue, the larger that margin
should be.
3) Proportionality
– Don’t take on large risks for small gains
– Is driving a big car really worth risking the
Antarctic?
– Is a small increase in crop yield worth risking
damaging native plants of a country?
– (Al Gore: gold bars v. the whole Earth)
4) Burden of proof
– Should be on those proposing actions that may do
damage, rather than vice versa (cf. US NEPA)
– Related to point 1, the delay issue: when in doubt,
rely on best available information, even if imperfect
or incomplete.
5) Intrinsic rights
– Other species have right to exist, nature is
intrinsic good
– Therefore, actions should include this
consideration
6) “Differentiated responsibility”
Those who have most impacted environment in past
have most responsibility now
(rich, highly industrialized nations)
Kyoto Protocol: Annex I nations.
U.S. and western Europe (total impact, not just
current annual, or per capita)
Created most Greenhouse gases, overall,
therefore should bear most responsibility.
Also true for deforestation (cf. Brazil)
Nearly all signatories agreed
this was fair, logical
Annex 1 nations benefited the most-indeed, got to be Annex 1 nations by
burning fossil fuels.
Therefore should now take most
responsibility
U.S. rejected this.
• Byrd-Hagel Act: 1995, rejected any climate treaty that did
not include developing nations.
• Present: President, and Republican nominee-apparent
take this stand: must include India and China in any
international agreement.
• Argument: China is now (2007) #1 producer of GHGs.
• But…India and China have produced still far fewer
greenhouse gases overall than we have.
• 25% of China’s energy use is to produce products for
export market--almost entirely US and Europe!
Objections to precautionary principle
1) Stifles economic growth
All economic activity involves some
environmental impact.
Excessive caution discourages anyone
from doing anything
2) Stifles innovation, creativity.
– Encourages a kind of worry wart mentality.
– Discourages risk taking.
– Result: stodgy, fearful society.
– “The Nanny society”--always worrying about
skinning our knees
– Is that what we want?
And we might be stifling the very innovations
that could solve our environmental problem,
like new energy source
Stitch in time may save nine,
but haste makes waste
• Acting before the science is “in” can be counter
productive.
• Example: smog in LA.
– Early regulations actually made science worse.
– Later work explained why. Chemical reactions had
been misinterpreted.
– Money was wasted, did not achieve desired goal
• Therefore, sacrificing scientific standards doesn’t
get you where you want to be.
Idea of intrinsic rights makes no
sense
• How can a tree have rights?
• And even if it did, what does this have to do
with precaution anyway?
• People are adding additional principles not
inherent in the original idea of precaution
What is precautionary for one person
might not be for another.
• I might argue that the U.S. invasion in Iraq was
precautionary. Why wait until Saddam attacks us?
• My neighbor argues, that is was no precautionary, it was
reckless, because there was no imminent risk.
• We could have waited for the U.S. inspectors to finish their
job.
• Depends on how you judge risk…and which risks you fear
more. Risk of Saddam Hussein doing something bad, or
risk of getting involved in a long, difficult, costly, perhaps
unjustified war…?
Basic idea of precaution might be clear,
implementing it is not.
• How do you judge imminent risk?
• How do you know if inaction will be more costly than
premature action?
• How do you judge how much scientific knowledge is
“sufficient” to act?
• How do you determine proportionality, when different
people value different goods differently?
• How do you make other nations, individuals, take the
responsibility you feel they have? Implies need for
collective governance, Europe accepts, USA does not.
Precautionary principle in action:
Genetically Engineered Organisms
• What are GMOs?
• What is the benefit?
– Improved crop yield
– Decreased need for fertilizers, pesticides
– Selective resistance to herbicides (Round-up
ready soybean)
– Increased nutritional value
What are the concerns?
• Safety of food supply
– At minimum--risk of allergies…
– You are doing things whose consequences are unknown
• Safety of environment
– GMO crops get loose, take over
– Especially “round-up ready”--how do you kill it?
– Impact on “non-target organisms”. BT corn kills butterflies
– Outcrossing. Genes spread to other plants, animals.
– Terminator gene solution --> but…
Concerns (continued)
• Equity
– Seeds are much more expensive than conventional,
– Poor farmers can’t afford it
– If terminator genes added, have to buy fresh seeds
every year, unlike in past.
– So how can this help them?
• Political stability
– Almost all patents held by US and European companies
– Do we want a small number of corporations controlling global
food supply?
• GMOs are unnatural
– Playing god, messing with creation.
– No good ever comes of that
– “Frankenfoods.” And we know what happened
to Dr. Frankenstein.
– Genetic engineering inconsistent with
“stewardship.”
– Therefore some Christian groups opposed.
Christian Opposition includes
• Christian Scientists
• Church of Scotland, Program in Science, Religion,
Technology, Disturbs “wisdom in natural order of
things.”
• New Zealand, Interchurch Commission on Genetic
Engineering, we should “curb our natural hubris”
• Au Sable Institute for Environmental Studies,
“abuse… of creation”
• Rural Life Committee of the North Dakota Council of
Churches
– Endorses precautionary principle as appropriate form of humility
“in the development, application, and expansion of GMO
biotechnology
The problem of hype…
Argument in favor has been strongly focused on feeding
world’s hungry.
Corporations like Monsanto argue “humanitarian” value.
Trying to help the world, feed the poor.
• BUT…There is no shortage of total food on earth. There is
a problem of distribution.
• Experience shows making more food does not decreased
world hunger. (1950s --> present)
• Increased yield in US won’t feed starving people in Africa.
And if Africans can’t afford seeds, there won’t be increased
yield there either.
What does the precautionary
principle really mean in practice…?
David Magnus,
Professor of Bioethics, Stanford University
“Risk Management v. The Precautionary Principle”
Uncertainty used extensively by corporations, most famously tobacco
industry, to avoid regulation
“Doubt is out product”
“Construct agnotology”--producing ignorance, confusion, by amplifying
doubts…
In response, environmentalists and health advocates have turned to
precautionary principle. Response to exploitation of doubt.
Uncertainty not an excuse for
inaction
• Therefore, precautionary principle
developed as response to industries,
states, etc (like tobacco) who tried to
use uncertainty to prevent regulatory
action
• Political response to a political reality
In Europe, used to oppose GMOs
• Interesting Shift… Or even a kind of
epistemic reveral
• Before “uncertainty” used by corporations to
stave off regulation (R J Reynolds, Exxon
Mobil)
• Now, uncertainty being advocates of
regulation of GMOs
• We don’t know what the harms may be, and
we may never know. Therefore, we shouldn’t
do it.
Wingspread Statement.
The precautionary principle states that
“When (on the basis of available evidence)
an activity may harm human health or the
environment, a cautious approach sould be
taken… even if the full extent of harm has
not yet been fully established. It recognizes
that such proof of harm may never be
possible…”
Burden of proof shifted.
Power of uncertainty harnessed to
support regulation rather than oppose it.
Interesting question:
Who should bear the burden of proof?
And how do we (as a society, a world)
decide?
And how do we deal with issues like GMOs,
or GHGs, where actions of one nation can
affect others?
Precedents for considering burden of proof
• Criminal law: innocent until proven guilty beyond
reasonable doubt. In this view, we could consider
GMOs ok unless someone provides evidence
there’s a problem. But presumption of innocence
is intended to protect citizens from power of state.
Is this right model for new technologies?
• Difficulty: the group most qualified to find evidence
of problem is the manufacturer, who has conflict of
interest.
Alternatives?
• Patent law: Inventor has burden to
demonstrate that invention is novel, and
does what it claims to do.
• FDA: drug manufacturers have burden to
demonstrate new drug is effective and safe.
• FDA probably closest relevant model, but
many recent failures….
Current state of affairs
• US: products assumed to be safe unless
shown otherwise
• Europe, reverse.
• US, regulate products (food, under FDA) but
not process. Process is seen as scientific
research.
• Europe, process subject to precautionary
principle
Current state of affairs
• BUT… WTO has recently intervened.
• European Union tried to ban import of North American
beef enhanced by bovine growth hormone, US and
Canada brought to WTO as unfair trade barrier.
• WTO agreed with US, said regulations must be sciencebased (ie burden of proof on regulator to demonstrate risk
of harm)
• EU refused, was fined $124 million.
• Raises interesting sovereignty issues: who are WTO to tell
Europe what rules and regulations they can have? (What
if tables were turned?)