Precautionary principle: It's relevance in National Resource Efficiency Policy

This article was authored with the contributions from Mr. Navin Kumar Jaggi, Advocate at JJ&J Attorneys. This article is the second part in a series that examines how precautionary principle can aid the implementation of NREP

Even after precautionary principle was firmed up at the Rio Declaration under principle 15 in 1992, the ambiguity surrounding it still remains, as its use is not as prevalent in the Indian context. The National Resource Efficiency Policy (NREP) stated that precautionary principle will provide “economic impetus to resource efficiency”. This article examines the potential impacts of precautionary principle on industries under NREP as well as expected setbacks/criticisms policymakers may face by choosing to implement the principle.

Introduction to precautionary principle

On a global level, the precautionary principle (PP) was acknowledged in the Rio Declaration under Principle 15:

“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.”

The purpose of precautionary principle is to ensure that if there is reason to believe that certain human activities can cause “serious of irreversible damage” to society and/or environment then preemptive steps should be taken to ensure that impact is minimal. This means setting precautionary policy as opposed to reactionary policy which has been the norm so far. While this does not rule out the notion of innovation or trial and error, which some would credit for economic growth, it indicates the need to approach growth cautiously i.e. by weighing all options and alternatives.

In the context of National Resource Efficiency Policy (NREP)

The draft NREP states:

“Cost savings from the reduced material use and regulatory instruments as polluter-pays-principle, precautionary principle, differential pricing of virgin raw materials, landfill taxes/ban etc. will provide economic impetus to resource efficiency.”

There is not a wide variety of literature about the practical implementation of precautionary principle in the context of resource efficiency. It is a relatively unchartered territory for Indian environmental law.  The National Green Tribunal (NGT) states that the onus is on the entity to conduct proper assessment to make sure an activity will not cause irreversible damage to environment and society. In the context of efficiency, this means confining resource use/material extraction that poses a negative risk on natural resources like air, land and water.

In conversation with Navin Kumar Jaggi, advocate, regarding precautionary principle’s role in resource efficiency he states, “the principle focuses on efficient alternatives by optimizing resource utilization, in turn, resulting in economic efficiency and efficient use of natural resources.”

Precautionary principle also pushes dematerialization,which means the reduction of material use in creating a good. This feeds into the need for preservation of materials rather than the misuse of it. Additionally, it helps in minimizing material input which in turn promotes the idea of producing a good or a service within ecological limits. This directly feeds into SDG Goal 12 which promotes Responsible Consumption and Production.

Precautionary principle in practice

Precautionary principle lacks a globally accepted definition which limits its scope in environmental legislation- this has also opened it up for interpretation. In essence shifts the burden of proof on the polluter i.e. making them consider environmental and social costs before producing a good/service thatcan pose a risk to the environment. The intention of using PP in the environmental context is to prevent permanent and redundant damage to the environment. However, with real world intricacies precautionary principle is not widely practiced which is evident through worsening anthropocentric environmental impacts.

In the Indian context, precautionary principle has been included in the National Environmental Policy (2006), which usesthe same definition as the Rio Declaration. Akins et. al’s critiqued the current interpretation of the principle stating that it does not establish a distinct relationship between nature, culture and community’s well-being. This paper suggests expanding the existing framework to include three new streams of thought:

The paper continues to suggest that for precautionary principle to be implemented in has to have a more holistic approach since the ethical aspect of precautionary principle concerns impact of natural resources on culture and society.

Potential sectoral impact of precautionary principle

The use of precautionary principle is relatively extensive in the chemicals sector (i.e. plastic packaging) and has been implemented in the London Declaration in 1987 as a result of increasing pollution levels in the North Sea. Referring back to the three streams of PP, the sectors mentioned in NREP can use a singular or combined approach. For example – a core feature of risk management is to conduct a cost –benefit analysis (CBA) for better understanding of the potential impacts. Since decreasing domestic material dependency and resource consumption is the common aim within the targeted sectors, industries may have to conduct cost-benefit analysis (CBA)in order to valuate environmental and social costs associated to material extraction and resource use. Another tool, which is widely used in the EU is impact assessments. While PP is the first step in managing potential risk, tools like CBA and impact assessments are methods to evaluate whether precautionary principle should continue to be enacted or not.

Policy makers should also consider this when formulating future policies within each sector. To this, Jaggiadds “It cannot be denied that permission to use automobiles has environmental implications, and thus any ‘auto-policy’ framed by the government must, therefore, of necessity conform to the Constitutional principles as well as overriding statutory duties cast upon the Government under the EPA. The ‘auto-policy’ must therefore, focus upon measure to “… Anticipate, prevent and attack…” the cause of environmental degradation in this field.” [ref. to Vellore Citizens’ Welfare Forum case]. In the case of resource efficiency, regulations should have foresight in order to put a cap on resource overuse.

Shortcomings of Precautionary Principle

PP can pose some practical challenges as well as criticism from industries:

• One of the challenges that policymakers may have to address is the need to have tangible goals and targets. Moreover, PP is difficult to monitor since it does not have a defined operational matrix – which may need to be established from the ground up for the NREP.
• While precautionary principle encourages citizens to voice and become active part of the policy making process, the principle puts majority of the responsibility on producers potentially igniting negative reception and therefore lack of implementation on supply side.
• Some critics of the principle say that it may slow down innovation and/or shuns scientific certainty because it propagates elimination based on the subjective “risk” an activity poses on the environment and society. 

The precautionary principle can play a central role by making core behavioral changes in our current production and consumption patterns. The principle, rather that limiting economic growth, encourages producers to ensure that a production process of a good or a service will not have a lasting negative impact on the environment and society. This also puts responsibility on policymakers to make sure they are framing policy with precautionary principle in mind i.e. considering all potential risks.