Universal principles: is our approach too

cautious?

Linda Forbes Unit B8 May 2007

INTRODUCTION

Unit B8 sought to explore the political and economic structures that underpin
the milieu in which this MSc course resides. This essay considers two key
principles that lie at the heart of much environmental debate and protection,
and questions whether the resultant legislation, behaviour and enforcement
regimes acts in a timely manner to support these principles.

Clearly, the environment and legislation designed to protect it cannot be

considered separately from the rest of society. Indeed, this wider picture has
been described by the phrase ‘Triple Bottom Line’ (Wikipedia 2007a) which
sought to describe the balance between the needs of People (social), Planet
(environment) and Profit (economic). The diagram below demonstrates this
concept.

Tensions between environment and economics sectors can arise in this

tripartite approach, particularly when applied to publicly owned companies,
which exist solely to maximise profits for their shareholders. However,
companies are more aware today of risks to their reputation (and balance
sheet) of poor performance in the environmental or social sectors.

KEY PRINCIPLES

In 1982, the UN General Assembly adopted The World Charter for Nature. The
contents of this document are seen as defining the Precautionary Principle
(UN Assembly, 1982). The Charter is the pre-cursor to international treaties
such as Montreal Protocol in 1987, which addressed the use of ozone-depleting

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chemicals, and the 1992 Rio Declaration at the meeting commonly known as
the ‘Earth Summit’.

The Rio Declaration (UN Assembly, 1992) reaffirms the Precautionary

Principle:

‘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.’

and goes on to define the Polluter Pays Principle as the sixteenth of its
twenty-seven principles:

‘National authorities should endeavour to promote the internalization of environmental

costs and the use of economic instruments, taking into account the approach that the
polluter should, in principle, bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment.’

DEFINING MOMENTS

In 1962, Rachel Carson, a biologist by training, highlighted the negative

effects of the indiscriminate use of artificial pesticides in the United States in
her seminal work, ‘Silent Spring’. The agro-chemical industry attempted to
stop publication by threatening to sue the publisher, and derided Carson’s
approach by promoting the benefits of their products.

However, President Kennedy’s Science Advisory Committee issued a report

vindicating Carson’s work, whilst earlier references to the research of other
scientists concerned about the effects of pesticides point to this issue being
discussed in the scientific fraternity of the time. More recent critics of
Carson’s stance on the use of DDT have highlighted the increasing numbers of
deaths from malaria following the withdrawal of the chemical, and this use
may merit further consideration.

Following this early example of first ignoring, then responding to, risks to the
environment, one must ask how governments have acted with regard to the
two key principles over the last twenty-five years.

Commonly, international agreements on environmental issues arise as a

response to governmental and public concern following major catastrophes.
Some of the effects of these disasters may be immediate and apparent, whilst
others are more insidious with very long-term effects.

Immediate environmental and social impacts were visited on Bhopal when the
plant of Union Carbide India Ltd experienced a major leak of 40 tonnes of
methyl isocyanate gas during the night of December 3rd, 1984 (Union Carbide,
undated). This chemical is used in the manufacture of agricultural pesticides
and is highly toxic to humans. It is impossible to establish exact figures for the
number of deaths and injuries, but values of 15,000 and 560,000 respectively
have been quoted (Wikipedia 2007b). Warren Anderson, CEO of Union Carbide

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at the time of the accident, was charged with manslaughter and declared a
fugitive from justice for failing to appear at the court hearings in India in 1992
(Wikipedia 2007c).

Disputes continue to rage as to the cause of the leak - Union Carbide claimed
it resulted from employee sabotage, whereas unions blamed lax maintenance
- whilst survivors continue their fight for compensation. Many of those
disabled by the gas still live in Bhopal, in poverty, within an environment
poisoned by the chemical residues from the leak, believing that both the
government and the company have ignored their suffering.

All responsibility for treatment of those affected, and the remediation of

land, has been taken over by the Government of Madhya Pradesh in India,
which received a settlement of $470 million from Union Carbide in March
1989. Dow Chemical Ltd, who purchased Union Carbide in 2001, has made
clear it believes it bears no responsibility for events at Bhopal in light of this
settlement.

At Chernobyl in 1986, it is claimed that failures in reactor design or to observe

basic safety procedures led to the explosion of Reactor 4 (Wikipedia 2007d),
and which resulted in widespread nuclear contamination within the Ukraine,
Belarus and adjoining European countries. Over a third of a million people
were displaced, and an uncertain number of people have died since with
illnesses that may have been the result of exposure to radiation directly or
intergenerationally.

And in the USA, Hawken (1993) chronicles the dumping of chemical and other
wastes at Love Canal over a thirty-year period from the 1920s. This resulted in
a state of emergency being declared in 1980 owing concerns regarding the
health of local residents. The authorities at the City of Niagara Falls had
approved the building of homes and schools on the site in the 1970s despite
being informed by Hooker Chemical and Plastics Corporation, a subsidiary of
Occidental Petroleum, that the company had buried toxic waste there.

POLLUTER PAYS?

The issues arising at the City of Niagara Falls led the US government to
legislate in the form of the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA). CERCLA is commonly referred to as
the "Superfund": it taxes chemical and petroleum industries to raise funds to
clean up abandoned or uncontrolled hazardous waste sites such as Love Canal
(Wikipedia 2007e) and the Clark Fork River (Diamond 2005). In a five-year
period, $1.6 billion was collected; in 1986 further legislation resulted in the
size of the fund being increased to $8.5 billion (United States Environmental
Protection Agency, 2006).

On the other hand, the possibility of companies unknowingly inheriting

pollution hazards was demonstrated at an appeal heard in the House of Lords
last month. In a case brought by the Environment Agency against National Grid
Gas plc, who as Transco was the statutory successor to the assets, rights and

Linda Forbes Unit B8 Essay 3

liabilities of the East Midlands Gas Board, the law lords sought to establish
who was the ‘appropriate person’ under the Environmental Protection Act
1990 with responsibility for the remediation of land containing coal tars. This
is a by-product from the manufacture of coal gas by said East Midlands Gas
Board prior to nationalisation in 1948. Their ultimate conclusion was that
National Grid Gas plc could not retrospectively be deemed to be the
‘appropriate person’, and that this was in fact likely to be the occupiers of
the eleven residences built upon the contaminated land (R v Environment
Agency, 2007).

The Environment Agency, whose remit includes prosecution of organisations

and individuals who fail to comply with environmental legislation in England
and Wales, has often been criticised for its lack of will in tackling persistent
offenders. Indeed, a press release (Friends of the Earth, 2001) expressed
concern at allegations that Freemasons within the Agency may have had their
independence jeopardised by association with fellow members in polluting
industries. In the same press release, FoE pointed out that industry breached
legal pollution limits over two thousand times in one year but only seventeen
prosecutions resulted.

More recently, the Agency’s Chief Executive, Barbara Young, said 744
prosecutions were brought in 2005, resulting in £2.7 million in fines (The
Ecologist, July/August 2007): an average fine of £3,629 per case. And late last
year, Thames Water was fined £40,000 for two discharges of sewage into
controlled waters on the same day, having recently declared record profits
and been sold for £8 billion.

The introduction of the EU Environmental Liability Directive to the UK from

April 2007 is important despite the likelihood it will only apply to a small
number of cases. It relates to the prevention and remedying of damage
caused by pollution of protected biodiversity and water, and to land
contamination which creates a significant risk of human health being
adversely affected (EU Directive 2006/121/EC, 2006).

One must question whether the Polluter Pays Principle is indeed an effective
deterrent in light of the figures above, or whether businesses calculate that
the risk of being detected, prosecuted and fined is lower than the cost of
proper treatment of wastes.

PRECAUTIONARY PRINCIPLE

This principle has, in recent years, been most closely linked to the
development of genetically modified organisms (GMOs). The Institute of
Science in Society’s ‘Open Letter from World Scientists to All Governments
Concerning Genetically Modified Organisms (GMOs)’ called for a five-year
moratorium in 2000 on the release of all modified organisms into the
environment. The signatories also challenged the patenting of life-forms and
living processes, and opposed the development of corporate monopolies in GM
crops which can increase social inequality.

Linda Forbes Unit B8 Essay 4

Critics of the Precautionary Principle lead one to believe that all scientific
research will be held back, and that no new discoveries will be able to be
produced commercially as it is impossible to prove that there is no risk.
However, this is to misunderstand the definition – and it is worth noting that it
does not apply solely to new technology; it could be applied equally to
existing substances such as tobacco and alcohol. Indeed, in light of ongoing
research into climate change, one might justifiably ask whether our approach
to the burning of fossil fuels would have been significantly different in light of
the Precautionary Principle. But would there ever be the political will to apply
these considerations retrospectively?

Meanwhile, the World Trade Organisation, which continues the work of GATT
in dismantling barriers to international trade, has been prominent in its
judgements demanding countries ignore the Precautionary Principle where it
restricts free trade, particularly with regard to growth hormones in beef, and
the use of genetically modified organisms. The WTO, originally proposed in
1947 as the International Trade Organisation as part of the Bretton Woods
institutions created by the US after the Second World War, was finally born in
1995 following the Uruguay Round of trade talks, and is often perceived as
doing the bidding of US corporations.

It is important, in the author’s view, that scientists and governments reserve

their right to apply the Precautionary Principle, and to question the safety of
new techniques and products (such as nanotechnology) and associated risks of
testing these in the environment (be it on humans, animals, or other media).
One recalls the tragedy of Thalidomide and speculates on the outcome had
the Precautionary Principle been observed. Nevertheless, the increasing
commercialisation of research makes it more difficult for scientists to retain
their independence in the face of pressures to provide economically viable
responses.

PREVENTION IS BETTER THAN CURE

In light of the foregoing, how much progress is being made in supporting the
key principles? In the UK, legislative responses include the Environment
Protection Act 1990, Environment Act 1995, and Pollution Prevention &
Control Act 2000. The Environment Agency, responsible for enforcing these
among many others, hosts the latest information on environmental legislation
at NetRegs website. Advice on compliance can be obtained free of charge to
small and medium businesses through Envirowise; whilst many larger
organisations have dedicated personnel managing legislation on SHE (safety,
health and environment).

The cost of meeting the demands of legislation can be high; an example might
be the installation of scrubbing systems within cooling towers to reduce SO2
emissions to air. In the early days of installing pollution control solutions the
BATNEEC (Best Available Technology Not Entailing Excessive Costs) stratagem
was employed, but the introduction of EU 96/61/EC Directive on Integrated
Pollution Prevention & Control requires site operators to implement BAT – that
of Best Available Technology (IEMA, 2004), which can be more expensive. The

Linda Forbes Unit B8 Essay 5

temptation is then for companies to relocate operations to a less regulated
part of the world, thus reducing economic security of employees in the UK,
and creating high levels of pollution in the local environment elsewhere.

Responsible companies seeking to improve their environmental credentials

and performance may choose to seek ISO14001 status, implement an EMAS
(Environmental Management and Assessment System), or subscribe to labelling
schemes such as Green Dragon. In some instances, purchasers specifically
require their suppliers to have achieved a particular status before they will
award contracts. This is particularly true of procurement within the public
sector. On the downside, the cost of achieving EMAS or ISO can prove to be a
barrier to smaller companies, who may operate locally or have better working
conditions, in seeking or winning contracts with major customers.

At a recent conference, it was highlighted that multiple breaches of

regulations at industrial sites are sometimes prosecuted under Health &
Safety regulations (which require innocence of the charge to be proven)
rather than under environmental law, where the onus is to prove the
defendant’s guilt (Baxter, 2007).

CONSUMER CONCERNS

Increasingly, people power is taking a role as environmental policeman: using

consumer choice, direct action or the political system to tackle threats to the
environment. Some recent community successes include Modbury’s plastic bag
ban, the WI campaign against excess packaging, and the rejection of
additional capacity at Coventry and Manchester airports.

The growing numbers of people affected by illnesses and diseases such as

cancers, asthma and allergies, and an increased, and increasing use of
chemicals in the environment, the possibility of cause-and-effect is being
considered. In fact, more than 100,000 chemicals that had not been tested for
safety but could be used have been identified (European Commission, 2007).

Forty-five years after Rachel Carson highlighted concerns as to chemicals

used, and twenty-five since the Rio Declaration, the EU introduced the REACH
(Registration, Evaluation, Authorisation and Restriction of Chemicals)
Directive last month. This requires testing of chemicals and provision of data
on use and safe handling to be recorded in a publicly available database. It
will also encourage phasing out or replacement of higher toxicity chemicals.
Importantly, this legislation is likely to have a global impact as it applies to
both producers and importers, rather than solely to manufacturers.

CONCLUSION

The research for this essay indicates a hesitant response to the concepts of
Polluter Pays and Precautionary Principle globally. The drafting of original
documents and subsequent legislation allows for individual interpretation, as
is often the case where compromise is the only way of reaching international
agreement. While much recent environmental legislation within the EU has

Linda Forbes Unit B8 Essay 6

been developed in support of the key principles, the time elapsing from
identification of issues to action in tackling them is overlong as shown by the
REACH Directive. However, there is a sense that the public appetite for more
legislation is increasing as is their awareness of the environmental risks
inherent in a number of types of pollution.

LIMITATIONS

The scope of this work is very wide, and might have been improved by
studying only one particular piece of legislation. Alternatively, the essay could
benefit from detailed analyses of further case studies and legislation; this
might lead to a different conclusion. The nature of prosecutions undertaken
by the Environment Agency might also have provided further insight.

FURTHER WORK

Quantitative studies of levels of pollution in the UK and other EU over the last
twenty-five years would provide more data as to the efficacy of EU Directives.

A detailed investigation as to the impacts of the transfer of operations from

one part of the world would support or deny the proposition that the West is
able to export its more polluting habits to developing nations, thus
compromising their ability to conform to the key principles described.

The impact of the REACH Directive and whether this has any effect on Indoor
Air Quality and occupants’ health would benefit from long-term research.

Comparative studies of nation states and their implementation of the various

principles comprising the Rio Declaration – as it may be that other states may
have decided to prioritise other principles at this stage in their development.

WIDER CONTEXT

Political nervousness in tackling issues of public concern, such as mobile

phone mast and EMF safety, shows how often the economics argument
overrides the personal: again bold implementation of the Precautionary
Principle is lacking.

Concern is expressed that bureaucracy hampers the ability of companies to

succeed. But the growth of companies into large multi- or transnational
corporations whilst complying with the increasing amounts of environmental
legislation appears to undermine this sentiment.

Linda Forbes Unit B8 Essay 7

FOOTNOTES, REFERENCES AND DATA SOURCES

REFERENCES

R (on the application of National Grid Gas plc (formerly Transco plc)) (Appellants) v. Environment
Agency (Respondents) (Civil Appeal from Her Majesty's High Court of Justice). [2007] Available at:
http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070627/grid-1.htm Accessed on 9th
July 2007.

Baxter, M. (June 2007). EMS Compliance Conference. Birmingham.

EU Directive 1996/61/EC (Integrated Pollution Prevention and Control) Available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0061:EN:HTML Accessed 9th July 2007

EU Directive 2004/35/EC (Registration, Evaluation, Authorisation and Restriction of Chemicals

(REACH) and establishing a European Chemicals Agency) Available at: http://eur-
lex.europa.eu/LexUriServ/site/en/oj/2007/l_136/l_13620070529en02810282.pdf Accessed 9th July 2007

EU Directive 2006/121/EC (Environmental liability with regard to the prevention and remedying of
environmental damage) Available at: http://eur-
lex.europa.eu/LexUriServ/site/en/oj/2004/l_143/l_14320040430en00560075.pdf Accessed 9th July 2007

European Commission. (2007). Environment Fact Sheet. Available at:

http://ec.europa.eu/environment/chemicals/index.htm Accessed 9th July 2007

Friends of the Earth. (2001). ‘Environment Agency Misleading Public on Water’. Available at:
http://www.foe.co.uk/resource/press_releases/19970918173445.html Accessed 9th July 2007

Great Britain. Department of Environment, Farming and Rural Affairs (DEFRA). (2002). ‘Guidelines for
Environmental Risk Assessment and Management’. Available at:
http://www.defra.gov.uk/environment/risk/eramguide/08.htm Accessed 9th July 2007

IEMA Institute of Environmental Management & Assessment. (2004). ‘Certificate in Environmental

Management notes’. Leamington Spa: Woodland Grange.

Institute of Science in Society. (2000). ‘Open Letter from World Scientists to All Governments
Concerning Genetically Modified Organisms (GMOs)’. Available at: http://www.i-sis.org.uk/list.php
Accessed 9th July 2007.

The Ecologist. (July/August 2007). ‘Letters Page’.

UN General Assembly. (1982). ‘The World Charter for Nature 1982’.

UN General Assembly. (1992). ‘Rio Declaration on Environment and Development’.

Union Carbide Ltd. (undated) ‘Bhopal Information Center’. Available at:

http://www.bhopal.com/index.htm Accessed at 9th July 2007.

United States Environmental Protection Agency. (2006). ‘The Superfund Amendments and
Reauthorization Act (SARA)’. Available at: http://www.epa.gov/superfund/action/law/sara.htm
Available 9th July 2007.

Wikipaedia (2007a). ‘Triple Bottom Line’. Available at http://en.wikipedia.org/wiki/Triple_bottom_line

Accessed 9th July 2007.

Wikipaedia (2007b). ‘Bhopal Disaster’. Available at

http://en.wikipedia.org/wiki/Bhopal_disaster#History_and_after-effects Accessed 9th July 2007.

Wikipaedia (2007c). ‘International Campaign for Justice in Bhopal’. Available at

http://en.wikipedia.org/wiki/International_Campaign_for_Justice_in_Bhopal Accessed 9th July 2007.

Wikipaedia (2007d). ‘Chernobyl Disaster’. Available at http://en.wikipedia.org/wiki/Chernobyl_disaster

Accessed 9th July 2007.

Linda Forbes Unit B8 Essay 8

Wikipaedia (2007e). ‘Love Canal’. Available at http://en.wikipedia.org/wiki/Love_Canal Accessed 9th
July 2007.

BIBLIOGRAPHY

Carson, R. (1962). ‘Silent Spring’. New York: Houghton Mifflin.

Connelly, J. and Smith, G. (1999). ‘Politics and the Environment: from Theory to Practice’. London:
Routledge.

Diamond, J. (2005). ‘Collapse’. New York: Viking Penguin.

European Commission. (2000). ‘Communication from the Commission on the Precautionary Principle’.

Hawken, P. (1993). ‘The Ecology of Commerce’. New York: HarperCollins.

McDonough, W., and Braungart, M. (2002). ‘Cradle to Cradle’. New York: North Point Press.

Walker, P. (2006). ‘Change management for sustainable development – a workbook’. Lincoln: Institute of
Environmental Management and Assessment.

2710 words excluding references and quotes.

Linda Forbes Unit B8 Essay 9