Balancing precaution and innovation in post-Brexit environmental law

One of the fundamental aspects of European policy on the environment is set out in Article 191(2) of the Treaty. This states that community policy on the environment is to aim at a high level of protection and is to be based, in particular, on the precautionary principle and the principle that preventive action should be taken.

The precautionary principle was defined in the 1992 Rio Conference on the Environment. It stated:

‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capability. 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.’

In the European Union the principle has extended beyond the environment to consumer protection. For example, in a case on a ban on food additives the European Court accepted that the reality or the seriousness of the risk to human health from the additive had not been proved.

However, it upheld the ban on the basis of the precautionary principle. It said that where there is scientific uncertainty about a risk a ban may be imposed. The rule maker does not have to wait until the reality and seriousness of the risk become apparent.

European proposals on legislation to deal with the impacts on human health from the combination of different chemicals, nanomaterials and chemicals in products will also be based in part on the precautionary principle.

More recently industry has been asserting the ‘innovation principle’. The states that:

‘The innovation principle was introduced in October 2013 to ensure that whenever policy or regulatory decisions are under consideration the impact on innovation as a driver for jobs and growth should be assessed and addressed. It sets out to provide a new and positive way of ensuring that policy makers fully recognise social and economic needs for both precaution and innovation. It is therefore intended to be used to improve the quality and application of EU legislation and as a result, to stimulate confidence, investment and innovation.’

The Forum considers that the innovation principle is complementary with the precautionary principle as precaution and innovation are equally important. The two principles should be used alongside each other, recognising the need to protect society and the environment while also protecting Europe’s ability to innovate.

Although the Forum sees the two principles as being complementary, this is not the view of the government. In a speech on post-Brexit UK environment policy, Owen Patterson MP said: ‘Replacing the severe European interpretation of the precautionary principle with an innovation principle will allow and encourage farmers to embrace new technologies to further their efficiency and sustainability with real environmental gains.’

On this view, innovation is used to reduce the level of protection provided by the precautionary principle. Innovation here is particularly aimed at genetically-modified crops. For example, developing herbicide tolerant crops enables simplified weed management as only one chemical needs to be sprayed. Whether this is or is not beneficial – particularly to small or subsistence farmers or to the environment – is not relevant here.

What is relevant is that instead of a policy based on the precautionary principle the emphasis will shift to ‘no evidence of harm’. If there is no such evidence then the product will be deemed to be safe.

This demonstrates the need to look closely at the legal principles that will form the basis of our environmental law post-Brexit.

If there is to be a new Environmental Protection Act following Brexit, it must address not only the discrete areas of environmental law such as air pollution, waste management or wildlife law but must also set out the principles on which that law is based.