Verónica Delgado Schneider, Professor of Environmental Law, Universidad de Concepción.
The discussion of the Climate Change Framework Bill in the Senate Committee on Environment and National Assets has led to several interventions referring to the principles set forth in the legal initiative, including the precautionary principle.
Indeed, just like the recognized preventive principle in environmental matters, the so-called precautionary principle requires taking anticipatory measures to prevent environmental damage or to lessen its consequences, albeit when encountering a particular situation: when there is no scientific certainty as to the effects that a phenomenon, a product, an activity or a process may cause. It is more of a question of how to act or manage uncertainty. As set out in Principle 15 of the 1992 Rio Summit: “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 that same year, the principle was incorporated into the Convention on Climate Change and the Convention on Biological Diversity, with nuances in its wording. At the same time, the reference and/or application of this principle has been taking root in the international jurisdictional sphere in the International Court of Justice and the International Tribunal for the Law of the Sea.
And its adoption is very important, because the previous logic was entirely the opposite: i.e., where science was uncertain about the effects that an activity or a substance could have on ecosystems or on people’s health it was inapposite to impose a preventive protection measure that could translate into wrongful prohibitions or restrictions to the detriment of the economy. This logic changed and a duty of precaution was imposed, since both a lack of certainty (a reasonable risk) and the greater assets at stake force those responsible to take measures that knowledge and time will reveal subsequently by labelling as being exaggerated measures (to be eliminated) or otherwise as measures that prevented deaths, diseases or damages. The first and best known international examples of the application of this principle were the prohibitions or restrictions imposed, legally and judicially, on the cultivation of genetically modified organisms, telecommunication antennas, and the use of pesticides, etc.
Predictably, the principle has expanded rapidly in Europe in environmental and health matters (notably regulation in France and Germany) and is met with resistance in the United States, which views it as a curb on trade and an excuse by European countries to warrant protectionist measures. In Latin America, this principle has been recognized generally and/or for specific matters (chemical substances, biodiversity, forests, ionizing radiation, etc.), more broadly at the legal and even constitutional level. It has also been recognized at a jurisprudential level in several countries where general environmental laws only refer to the preventive principle. In more recent times, the precautionary principle served as a justification for a Brazilian judgment in the year 2016, which ruled in favor of interrupting an oil exploitation activity until the companies had established procedures to implement a plan to abandon the well and had carried out more in-depth studies. And in the case of Chile’s Mesa Océanos, this principle should inspire further studies and strict or moratorium measures on underwater mining activity for various reasons, including the value of the subsoil as a sink for greenhouse gases.
In Chile, the precautionary principle is not expressly recognized in Law 19,300. This is apparent in a 2013 ruling by the Second Environmental Court, related to the Tagua Tagua NCRE power plant project, in which it was argued that the Rio Declaration containing this principle could not be applied, since it is not a binding rule that can be applied to projects submitted in the Environmental Impact Assessment System (SEIA). Thus, the SEIA can only base its rejection of a project on the preventive principle, and not on the precautionary principle.
However, in the Supreme Court, even though there have been certain judgments where the precautionary principle has been confused with the preventive principle, there are already several rulings that afford the precautionary principle adequate treatment and that have set important precedents by labeling omissions by the State in the due protection of the environment and people as illegal. The case of the dumping of salmon off the coast of Chiloé is noteworthy, where in 2018 a ruling was issued against the authority condemning it, among other issues, for taking decisions without having all the information it required and as provided for by an international agreement, even obliging it to continue with the scientific research on the subject. Also remarkable is the 2019 judgment that accepted the constitutional protection remedy filed by neighbors, authorities and NGOs in Quintero-Puchuncaví, which argued that all gases or chemical compounds produced by each and every one of the companies operating in the Bay of Quintero, Ventanas and Puchuncaví, and other existing sources in that sector, should be identified and quantified, establishing the origin of each compound and the effects they could cause both on human health and on the environment.
The precautionary principle has also gained considerable ground in other laws that expressly recognize it, and it is proposed in several important bills. However, the formulas in which this principle is received are quite varied, and this variety is of an importance that has not been dimensioned until now, especially in view of the approval of the Climate Change Framework Law.
The precautionary principle was incorporated into the Fishing and Aquaculture Law in 2013 under the expression “precautionary approach”, to be applied for purposes of interpreting and applying the law and, especially, when deciding whether or not to impose conservation and management measures. And its meaning is specified: “i) More caution should be exercised in the administration and conservation of resources where scientific information is uncertain, unreliable or incomplete, and ii) The lack of sufficient information, as well as unreliable or incomplete scientific information should not be used as a reason for postponing or not adopting conservation and administration measures“. The reception of the principle turns out to be far less stringent (and therefore more beneficial for environmental protection) than the wording adopted at the 1992 Earth Summit and, in fact, makes no mention of the term “risk of serious and irreparable damage,” and includes three hypotheses on the lack of scientific certainty (insufficient, unreliable or incomplete) without requiring that this be “full” or absolute. Moreover, it does not expressly require a cost analysis. In any event, in practice, this principle is still not very operational, lacking – as suggested by the FAO – several regulatory reforms.
This vision of the principle is preserved in the bill that creates the National Service of Biodiversity and Protected Areas and the National System of Protected Areas (Bulletin 9,040-12). The text approved thus far does not refer to damage either, does not demand that the lack of certainty be full or “absolute”, and even emphasizes (“in no event”) that there will be no exceptions as regards its application: “Precautionary principle: the lack of scientific certainty in no event can be invoked to stop implementing the necessary measures for the conservation of the country’s biological diversity.” Nor is there a requirement for a cost analysis.
In the same vein, the principle was incorporated into Law No. 20,920 of 2016, which establishes the framework for waste management, extended manufacturer responsibility, and the promotion of recycling. Article 2 of this law provides: “Precautionary: the lack of scientific certainty may not be invoked to cease implementing the necessary measures to reduce the risk of damage to the environment and human health arising from waste management.” The risk of “damage” (i.e. a significant, important impact) must be acted upon and it suffices that there is no scientific certainty, without demanding that it be absolute. Nor is a cost analysis required to be made.
Nevertheless, even when gaining ground (an important issue), the wording in the Climate Change Framework Bill submitted this year (2020) to the National Congress by the Government (Bulletin No. 13,191-12) reverts backwards to a more traditional and demanding wording: “where there is background information that allows for anticipating a hazard of serious or irreversible damage, the lack of absolute scientific certainty should not be used as a reason for postponing the adoption of cost-based efficient measures to prevent the adverse effects of climate change.” (Art. 2(d). With this, the new climate change law latches onto the so-called minimalist or weak position of the principle, according to which the precautionary principle would only be applicable in cases of a risk of serious or irreversible damage and when the lack of scientific certainty is full or “absolute”, without clarifying furthermore whether the cost analysis to be weighted refers only to economic costs, even though the same bill recognizes the principle of cost effectiveness, which mandates a prioritization of those measures that, being effective for mitigation and adaptation, are the ones that represent less economic, environmental and social costs.
Paradoxically, with the Climate Change Framework Bill – where perhaps we have the greatest challenge given the varied uncertainties of world science (regarding the causes, effects and how to adapt to climate change) and of national information (on many aspects, such as biodiversity, water, air emissions, etc.) and, especially, when it is the law itself that expressly enshrines the principle of non-regression – we are actually stepping backwards. In fact, this principle could be the most important and useful principle to be enshrined in this bill, along with the principle of non-regression (never backtrack on ambition) and the principle of environmental justice (even if it were called equity and transversality). Hopefully, during the discussion in the National Congress, modifications will be made in having this principle be received more ﬂexibly, the so-called “intermediate” reception, which subordinates the use of the principle to a scientifically credible risk, admitted as plausible by a large part of the scientific community. In France, for example, in the Charter of Nature, which included this topic in its creation in 2005, the uncertainty of the occurrence of a damage within the state of scientific knowledge is suffice.
Moreover, but with considerable controversy, this principle’s inclusion in the bill that “modernizes” the SEIA is being discussed (Bulletin No. 11952-12). Congresspersons have proposed its inclusion, but the Government refuses to accept it, arguing that the Climate Change Framework Bill already proposes that the climate change variable be included in the SEIA. The principle should be included in the SEIA modification bill, without a doubt, and in both types of assessment (Statements and Studies), because up till now the SEIA assesses projects considering only their “historical” baselines, with “backwards” data, not with projections that consider climate variability as though the quality and quantity of water and ecosystems, for example, will remain the same over the next hundred years. The rule needs to be refined, with clear and concrete references to how the climate variable and the precautionary principle will reform the SEIA.
The inclusion of the precautionary principle would also be expected in the reform of the Water Code, a backward, liberal-influenced code that does not assume that drought in Chile is already an almost normal situation in several areas and which, perhaps most seriously, fails to “protect” water as an element of the environment, allowing decisions to be made without citizen participation and with little or deficient information. It is urgent that decisions be taken with more information and in advance; and that, when there is no scientific certainty about the future, the precautionary principle be imposed, compelling the State to take measures that, legitimated by citizens, will make it possible to ensure that ecosystems are maintained, that the human right to water is guaranteed, and that its extractive use is rational in order to be respectful of the planet, for the survival and fairness to the generations to come. Unfortunately, the reform presently does not include the principle, either expressly or tacitly.
Ultimately, the precautionary principle has gained ground in Chilean law and, if the bills mentioned above are approved, it is, without a doubt, here to stay; although one would expect consistency in the form of its recognition, especially in the Climate Change Framework Law, where, paradoxically, the principle of non-regression is expressly considered.