Precaution and The Precautionary Principle
The precautionary principle is increasingly being adopted as a basis for regulation in relation to environmental policy. The approach is believed to have started in the 1970s with wide-spread introduction in the 1980s. Since that time, it is increasingly being integrated into regulation around the world despite often having little scientific justification. Under the precautionary principle, when the actual or potential risks of a particular activity are unclear or unknown, regulators often propose and implement policies which do not match the risks.
The precautionary principle has been used to provide legal justification for action even when the scientific causation is incomplete or is absent altogether. The precautionary principle is flawed; enabling decision-makers to selectively use the approach for political or policy reasons rather than scientific rationale. The exercise of precaution in the regulatory realm differs by region for example in the United States and Europe and has also been integrated into several international conventions and treaty organizations.
In the United States the precautionary principle is not expressly mentioned in laws or policies, and federal agencies such as the National Marine Fisheries Service (NMFS) are required to objectively utilize the best available scientific (BAS) information when making regulatory decisions. Nevertheless, this trend of incorporating precautionary assumptions without clearly distinguishing them from BAS in such agencies as NMFS is evident but violates the mandate of BAS. One specific example of this misapplication can be seen with the Marine Mammal Protection Act (MMPA) in the United States. Although the U.S. Congress arguably intended the MMPA to conservatively protect marine mammals, it did so in the standards established (e.g. “negligible impact”) – not by establishing an implied assumption that an additional layer of bias in favor of marine mammal protection would be applied. In other regions where the precautionary principle is codified in the legal and regulatory process, regulatory agencies should clearly delineate the best available scientific information and additional precautionary assumptions to avoid conflating assumptions and facts.
The EnerGeo Alliance recognizes the complexities and uncertainties inherent in marine environmental management and supports appropriate measures to minimize potential and actual risks. The seismic and exploration industry remains committed to operating in an environmentally sustainable manner and reducing the potential risk of adverse impacts to the marine environment.
As the industry supports these measures, it also calls upon modeling and regulatory efforts to minimize those potential and actual risks to be fact-based and free of baseless precaution. Introduction of precautionary assumptions, that are not based in scientific information during modeling and regulatory efforts nor identified as precautionary, creates confusion about the level of evidence supporting the decision process relative to the degree of conservative bias applied to extend risk minimization beyond the evidence.
Exercising precaution by inserting multiple conservative assumptions within a multivariate model leads to unexpected unreliable results because the precautionary assumptions interact multiplicatively. This means introduction of seemingly small precautions that double or triple the risk avoidance in any given variable can yield results that amount to thousand-fold over-predictions of risk when those multiple small precautions interact. Decision-makers should therefore employ the best objective information available when setting the values of model parameters and then clearly delineate any precaution being applied to the end result to avoid confusion about the correlation between the model and real-world outcomes.
- 15 October 2018 – IAGC letter to RDML Timothy Gallaudet, re: Marine Mammal Incidental Take Authorization Concerns
- IAGC letter to Ms. Jolie Harrison and Mr. Gary Goeke, re: Incidental Harassment Authorizations for Atlantic Seismic Surveys
- IAGC Comments on Proposed Marine Mammal Incidental Take Regulations for Geophysical Surveys in the Gulf of Mexico (NMFS-2018-0043)
- Principles of Environmental Law