Introduction
The Assembly’s Climate Change, Environment and Rural Affairs Committee will be carrying out a piece of work on the EU’s core environmental principles and environmental governance during the summer term. This guest blog from Dr. Rupert Read, Reader in Philosophy at the University of East Anglia, discusses these concepts in the context of Brexit.
Environmentalists are raising concerns that the EU’s fundamental environmental principles – including the Polluter Pays principle, the Prevention Principle and the Precautionary Principle - are potentially at risk as the UK withdraws from the EU.
This note examines that risk, with special reference to the context of Welsh devolution. It focuses on the Precautionary Principle (the ‘PP’), as it is one of the key elements for policy decisions concerning environmental protection and management. Its case, in the context of Brexit, is largely representative of the other principles. 
What is the Precautionary Principle?
The PP aims to ensure a high level of environmental protection through preventative, rapid response, decision-taking in the case of risk, for example danger to human, animal or plant health. It is applied in circumstances where there are reasonable grounds for concern that an activity could cause harm, but where there is uncertainty about the probability of the risk and the degree of harm.
The PP has been recognised by various international agreements. The Bergen Declaration on Sustainable Development (1990) is a widely-accepted framing of the PP in international law.
Its definition of the PP is:
In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
It is particularly suitable as a framing of the PP in the Welsh context, given the Environment (Wales) Act 2016 purpose around the sustainable management of natural resources.
The Treaty on the Functioning of the European Union (TFEU) (Article 191) contains reference to the core environmental principles, including the PP:
Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
The EU environmental principles are intended to shape the development of EU law and policy and are used in the interpretation of EU law. They can be applied by the courts, businesses and government in decision making. Embedding the PP in the TFEU means it must be applied by all sectors, rather than having specific focus.
In 2000, the European Commission adopted a Communication on the use of the PP. It sets out that although the TFEU prescribes the PP only once - to protect the environment - in practice, the scope of this principle is far wider and also covers consumer policy, EU legislation concerning food and human, animal and plant health.
The Precautionary Principle and evidence
Current EU law also establishes the Prevention Principle which applies when it is known that an activity is reckless. Alternatively, the PP applies when it may be reckless, but there is uncertainty about the probability of the risk.
The PP is based on the idea that there may be dangerous consequences in assuming that something is safe just because there is no current evidence of harm. In cases where there are ‘threats of serious or irreversible damage’ novel substances should, under the PP, be presumed guilty until proven innocent, rather than vice versa.
Typically, scientists are concerned to avoid false positives, aka ‘false alarms’. This explains, for instance, why many scientists are relatively cautious in claiming tight connections between extreme weather events and anthropogenic climate change. However, if the normal scientific habit of awaiting the evidence and avoiding false alarms is too strictly adhered to, a situation could arise where something genuinely harmful occurs—without anyone having adequately warned against it.
The Precautionary Principle and innovation
Some argue that the PP opposes innovation. Defenders of the PP believe that it can stimulate research and innovation of its own. If an existing practice is shown to be potentially risky, the PP demands thata route that avoids environmental hazard is taken (PDF 632KB), often through an innovative method.
The Precautionary Principle and Brexit
The future of the EU’s environmental principles is uncertain in the UK in the context of Brexit (PDF 2.3MB).
There have been unsuccessful attempts to amend the EU Withdrawal Bill in both the House of Commons and the House of Lords to enshrine the environmental principles in UK law post-Brexit.
The UK Government has given assurance that it will retain the PP. However there is concern around the manner of that retention (PDF 246KB). Michael Gove, Secretary of State for Environment, Food and Rural Affairs, has indicated that the environmental principles could be included in a National Policy Statement (NPS). However, there is concern (PDF 246KB) that if the principles are not enshrined in law, but policy alone, they could lack weight and enforcement.
One suggested way of securing the PP more effectively would be for a domestic governance body/watchdog to have the principle explicitly laid down in its terms of reference and its duties. An environmental governance body has been proposed by the UK Government to oversee the implementation of environmental law and to address any ‘governance gap’ post-Brexit. However, the nature of such a body is currently unknown as stakeholders await a UK Government consultation.
The Welsh context for preserving the Precautionary Principle post-Brexit
At the time of writing, it is still not clear whether the UK Government’s proposed NPS to carry forward the environmental principles will include Wales, nor whether the proposed environmental watchdog will have enforcement powers over Wales.
There were unsuccessful attempts to amend the Welsh Government’s Law Derived from the European Union (Wales) Bill to include the environmental principles and an environmental governance body. However, the Welsh Government has committed to ‘take the first proper legislative opportunity to enshrine the environmental principles into law and close the governance gap’.
If the route is taken where a Welsh environmental governance body is established, one possibility is a significant expansion of the powers and resources of the office of the Future Generations Commissioner for Wales. This post originally arose as a result of a desire for a ‘sustainable development watchdog’ for Wales, following the abolition in 2010 of the UK Sustainable Development Commission.
Article by Rupert Read, with thanks to Alex Steele for editorial assistance. Thanks also to Victor Anderson, Tim O’Riordan and Naomi Marghaleet of ‘You Said It’, for comments and input. Dr. Rupert Read is Reader in Philosophy at the University of East Anglia and Chair of Green House (www.greenhousethinktank.org). @rupertread
Edited by Katy Orford, National Assembly for Wales Research Service.
