SHIFTING THE BURDEN OF PROOF
In the past many products and processes have been marketed without prior approval or any requirement that the manufacturer show evidence that they will not harm human health or the environment.
Similarly, many activities and developments have been undertaken without the need for developers to show they will not have an adverse environmental impact. Traditionally it has been up to consumers, environmentalists or government authorities to make a convincing scientific case that such activities or products were harmful before they could be regulated. The thinking was that regulations constrained economic activity and would only be justified if there were undisputed scientific evidence that such activity would cause harm. This is a 'wait and see' approach where the burden of proof is on those asserting damage is being or will be done.Should a chemical be assumed safe until proven dangerous, or should the chemical not be used until it has been proven to be relatively harmless? Normally, people are innocent until proven guilty. But should the same rule apply to chemicals? Like many environmentalists and regulators, Steven Jellinek of the US EPA argues that granting civil rights to toxic substances does not make sense, and that the burden of proof should be on those wanting to use or dispose of the chemicals to demonstrate they are safe before releasing them. 'Rarely will there be overwhelming evidence of a hazard - the smoking gun or dead bodies - but the most obvious implication of this sort of proof is that we have waited too long to take precautionary action' (Jellinek 1980: 8-9).
In the 1970s the US EPA imposed limits on lead in petrol based on scientific evidence that it was causing problems but without proof that it had actually harmed particular people. The oil industry opposed the regulations in the courts but the EPA won.
'The case is considered a landmark in U.S. environmental law because it established that EPA could act in a precautionary fashion rather than wait for scientific certainty about the harmfulness of a substance before acting' (Ackerman & Heinzerling 2004: 4).These days certain activities require developers to prepare environmental impact statements or assessments and some products, such as pharmaceutical drugs, pesticides and food additives, must gain approval before they can be marketed. In these cases it is initially assumed that the activity in question or the product may be hazardous or environmentally damaging, and the burden of proof has been shifted to the developer or manufacturer, who needs to produce scientific evidence that the activity or product is safe in order to get approval (see table 3.1). Although we say the burden of 'proof' has been shifted, proof is not actually required, just a convincing case - supported by scientific evidence - that the activity or product is safe.
Table 3.1 Shifting burden of proof
Before precautionary principle Precautionary principle
People exposed to risky actions must bear the risks of such actions until it can be demonstrated that they cause harm to health or the environment.
The people exposed to risk bear the responsibility for demonstrating that actions caused harm.
People exposed to risk can ask for precautionary actions to be taken before risky actions can be proven to cause harm.
Once some preliminary basis for taking precautionary action exists, risk creators bear the responsibility of showing that actions are safe, or at least acceptably risky.
Adapted from (CPR 2005b)
This shifting of the burden of proof from one party to another, for example from the regulatory authority to the polluter, is only one element of the precautionary principle. However, the fact that those proposing an activity have to show it is safe before it is approved - rather than the government needing to show it is unsafe before it can be restricted - is an important aspect of the precautionary principle.
In practice, the burden of proof has been shifted for new products and activities only where there is a long history of harm arising from like products and activities. Existing products are generally 'presumed safe'. This bias is based partly on the assumption that it is cheaper and more politically acceptable to prevent new products being manufactured than it is to ban existing products, and partly on the assumption that it is easier to prevent new developments than dismantle existing ones. Similarly, synthetic substances may require licences but natural substances are assumed safe, even if they are added in unnatural quantities to the environment (Bodansky 1994: 212-3).
Those proposing new environmental regulations often still have the burden of making a watertight scientific case that the regulations are necessary to protect human health or the environment. This gives opponents the opportunity to undermine the justification for such regulations by emphasising the uncertainties in their scientific evidence.
What the precautionary principle does is ease the standard of proof, so that scientific evidence of possible harm is sufficient to prompt regulatory action. The assumption that an activity or product is safe until proven harmful shifts, so that it can be considered harmful before that proof is available. It is no longer sufficient to raise doubts about whether the harm will happen to prevent an activity or product from being regulated. In this way the balance between environment and economic development is shifted a little more towards environmental protection: 'previously the polluter benefited from scientific doubt; henceforth doubt will work to the benefit of the environment' (de Sadeleer 2002: 203).