The Principles of Environmental Law Continued.

The Precautionary Principle

The 1940s saw the development of DDT(Dichloro-diphenyl-trichloroethane) as a pesticide, deployed to combat malaria and typhus – insect borne human diseases. However, in the 1950s and 1960s, the adverse effects of the chemical on human health and on the environment became evident. In 1962, Rachel Carson published the book Silent Spring which opened the eyes of the public to the adverse effects of the pesticide and the need for better controls.

This incident, along many others fueled the need for increased concern for the environment and fast tracked the development of principles of environmental law. The Precautionary principle is one such principle inspired by this incident; which observes that where an activity may have environmentally harmful consequences, it is better to take measures to control the activity than to wait for non-reversible scientific evidence and destruction of the environment.

This principle goes hand in hand with the Principle of prevention, calling for stakeholders to somewhat anticipate and seek to mitigate environmental harm in the cause of their undertakings.

“When an activity raises threat of harm to human health or the environment, precautionary measures should be undertaken eve if some cause and effect relationships are not fully established scientifically. “ Wingspread Conference 1998

There are four key components associated with the principle:

Taking preventive action in the face of uncertainty

Shifting the burden of proof to the proponents of an activity

Exploring a wide range of alternatives to possibly harmful actions

Increasing public participation in decision making.

In the land mark case of Vellore Citizens Welfare Forum Vs Union Of India & Others [1996] 5SCR 241, the Indian supreme court provided for three guidelines when applying the principle as follows;

The environmental measures by the state government and the statutory authorities must anticipate , prevent and attack the causes of environmental degradation

Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as the reason for postponing measures to prevent environut degradation.

The ‘ONUS OF PROOF’ is on the actor or the developer/industry to show his action is environmentally benign.

The case was initiated by an NGO, Vellore Citizens Welfare forum, regarding pollution caused by the discharge of untreated sewage by tanneries and other industries in India.

Several Legal frameworks call for the application of the precautionary principle:

The Bamako Convention on Hazardous Wastes Within Africa of 1991 requires each party to strive to adopt and implement the preventive, precautionary approach to pollution problems which entails preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm.

The Rio Declaration on Environment and Development, 1992 states that 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.

Article 70 of Kenya’s Constitution enshrines this principle by providing that:

(1) If a person alleges that a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.

(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate--

(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;

(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or

(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

This is echoed in the Environment Management and Coordination Act which defines the Precautionary principle in Section 2, as postulating that where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

In the case of Odando and Another v National Environment Management Authority & 2 Others; County Government of Nairobi &5 Others (interested parties) [2021]eKLR, the petitioners sought the indulgence of the court in compelling the respondents to apply the Precautionary principle in preventing upstream and downstream pollution if the Nairobi and Athi Rivers. In the case, the court observed that pubic participation, or the lack thereof cannot be applied as a determinant for the enforcement of the precautionary principle. The court, while quoting Professor Gitanjali Nain Gill in his article ‘The Precautionary principle, its interpretation and application by the Indian Judiciary observed that “The precautionary principle is invoked and followed by judicial and expert members as a normative commitment. It thereby directs the judges, particularly the technical expert judges, to offer scientifically based structural solutions and policies that respond creatively to weak, ineffective regulation even in the absence of regulation. Adoption of a variety of procedures, including investigative, stakeholder consultation and appointment of specialized committees, helps in the application of the precautionary principle. This improves active participation through dialogue, argument and norms for eliciting factual realities and expert knowledge to respond to environmental problems. Expert members by on-spot site inspection can evaluate contradictory claims, positions and reports filed by the parties. The stakeholder consultative process is applicable to cases of wider ramification involving major issues including river cleaning and air pollution.”

In conclusion, the Precautionary Principle of Environmental Law was born out of a need to address merging environmental threats before thy result in irreversible harm. The Precautionary Principle emphasizes the importance of taking proactive measures even in uncertain situations, shifting the burden of proof to those proposing potentially harmful activities and promoting public participation in the decision-making process. A demonstrated through landmark cases such as Vellore Citizen Welfare Forum v Union of India &Others and the Odando v National Environment Authority and 2 others, the application of the Precautionary principle is pivotal inholding actors accountable for environmental degradation and guiding policy and legal frameworks towards sustainable practices. Furthermore, international agreement such as the Bamako Convention and the Rio declaration underscore global recognition for the principle and its significant in securing our planet for future generations. As environmental stewards and policy makers, we have an obligation to uphold and advocate for the effective implementation of the Precautionary Principle to safeguard our environment and ensure a sustainable?future?for?all.