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Science and the Law
Richard Broadbent, Principal Solicitor
2 December 2014
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Introduction
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What is Natural England?
Our remit • Natural England is here to conserve and enhance the natural
environment for its intrinsic value, the wellbeing and enjoyment of people and the economic prosperity that it brings
• Natural England's general purpose - to ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations, thereby contributing to sustainable development
What is Natural England?
• Natural England is the statutory advisor to the Government on nature conservation in England and promotes the conservation of England’s wildlife and natural features
• It is financed by Defra, but it forms its own views based on the best scientific evidence available
Natural England is a statutory consultee in respect of (amongst other things):
proposals falling under the Environmental Impact Assessment Regulations in England
proposals likely to damage a Site of Special Scientific Interest plans or projects likely to have a significant effect on any European site.
European sites include Special Protection Areas and Special Areas of Conservation or sites listed under the 1971 Convention on Wetlands of International Importance (Ramsar sites)
The Problem – environmental law as ‘hot law’
E. Fisher, Environmental Law as ‘Hot’ Law, Journal of Environmental Law 25:3 (2013), 347-358
The p o ly c e ntric , inte rd is c ip lina ry , no rm a tive a nd s c ie ntific a lly unc e rta in na ture o f e nv iro nm e nta l p ro ble m s le a d s to a bo d y o f e nv iro nm e nta l la w in which it c a n be d iffic ult to s e ttle o n a s ing le fra m e fo r und e rs ta nd ing a p ro ble m a nd thus to id e ntify re le va nt p a rtie s , the re la tio ns hip s be twe e n the m , a nd the c o urs e s o f a c tio n tha t c a n be ta ke n.
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Hot situations’ leading to ‘hot law’
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Environmental law is thus a subject in which ‘reassured certaintiesgive way to tormented complexities’.
‘…struck by the contrast between the relative simplicity of the basic objectives, and the complexity of machinery by which we try to give them effect’.
‘…many environmental law issues are not just ‘controversial’, but that the controversies arestructural and foundational’.
Science
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The scientific method
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The game of science is, in principle, without end. He who decides one day that scientific statements do not call for any further test, and that they can be regarded as finally verified, retires from the game.
Karl Popper
What is science?
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Hunts for error.
No simple definitive answers.
Knowledge is tentative(e.g. 95% confident)
Falsifiable, corrigible,
progressive.
Reflexive. An interconnected series of concepts and conceptual schemes that have developed as a result of experimentation and observation and are fruitful of further experimentation and observation.
The scientific method
• Deductive and inductive forms of reasoning• Where knowledge is uncertain or incomplete we can rely on
inductive reasoning to help us make sense of it• I.e. the conclusion follows with high probability from the information
in the premise (or the premises) of the argument
– P1: Most As are B– P2: C is an A– C: Therefore, C is likely to be B
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P1: Most little dogs are yappy.
P2: Fido is a little dog.C: Therefore, Fido is likely
to be yappy.
Inductive reasoning
• Inductive reasoning is:– Based on samples– Relies on analogies or comparisons to reach a conclusion
• Either strong or weak based on whether the conclusion follows with a high degree of probability from the premises
Therefore it is:1. Inherently uncertain2. Predictive in nature3. Not always easy to determine whether an outcome is or is not
highly likely based on the available information
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The role of scientists
• Scientists are duty bound to demonstrate where there are uncertainties
• Uncertainties can be lost when we over simplify• Cannot give us absolute certainty. Rather it gives us degrees of
confidence (high, moderate, or low) based on probability – i.e. a strong argument or a weak argument
“We believe it is essential that environmental policies should have a sound scientific basis … There is, however, a widely held view, even an expectation, that scientists can provide the answer to whatever issues are under consideration. Science is not a matter of certainties but of hypothesis and experiments. It advances by examining alternative explanations for phenomena, and by abandoning superseded views. It has provided very powerful tools for gaining understanding of complex environmental processes and systems. At the same time there are many cases … in which damage has been caused to health or the natural environment because of gaps in understanding. Such incompleteness is inherent in the nature of science, especially environmental science, which deals with ‘the world outside the laboratory’.
RCEP 21st Report: Setting Environmental Standards (1998), para 2.6613
Scientific confidence and uncertainty
• Common forms of uncertainty:– Value uncertainty– Structural uncertainty – Unpredictability
• European Commission examples of what causes uncertainty:– The variable chosen– The measurement made– The sample drawn– The models used– The causal relationships employed– Controversy on existing data or lack of some relevant data
• Scientific confidence is undermined by uncertainty (uncertainties which the (good) scientist must point out)
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The Law
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Reconciling scientific uncertainty in a legal framework: The Precautionary PrinciplePrinciple 15 of the Rio Declaration, 1992 •“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 ful l scientif ic certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (weak version because measures whose benefits are outweighed by the costs would not need to be taken under this formulation)Article 191(2) of the Treaty on the Functioning of the European Union •Union policy on the environment shall be “based on the precautionary principle”
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European Commission Communication on the Precautionary Principle 02.02.2000
The precautionary principle should be considered within a structured approach to the analysis of risk:•risk assessment•risk management•risk communicationNot confuse the principle with the element of caution that scientists apply in their assessment of scientific dataIt applies where potentially dangerous effects deriving from a phenomenon, product or process have been identified, and that scientific evaluation does not allow the risk to be determined with sufficient certainty
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European Commission Communication on the Precautionary Principle (continued)• Start with a scientific evaluation, as complete as possible, and
where possible, identifying at each stage the degree of scientific uncertainty
• Decision-makers need to be aware of the degree of uncertainty attached to the results
• Judging what is an "acceptable" level of risk for society is an eminently political responsibility
• The scope of the precautionary principle in part depends on trends in case law, which to some degree are influenced by prevailing social and political values
• An analysis of the precautionary principle reveals two quite distinct aspects: (i) the political decision to act or not to act as such, which is linked to the factors triggering recourse to the precautionary principle; (ii) in the affirmative, how to act, i.e. the measures resulting from application of the precautionary principle
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Principles which should underpin the application of the precautionary principle• Proportional – tailoring measures to the chosen level of protection• Non-discriminatory – comparable situations should not be treated
differently, and that different situations should not be treated in the same way
• Consistent – measures should be of comparable scope and nature to those already taken in equivalent areas in which all scientific data are available
• Based on a comparison of the risks and benefits associated with various possible alternatives, both in the short and long term.
• Subject to review – in the light of new scientific data• Capable of assigning responsibility for producing the scientific
evidence necessary for more comprehensive risk assessment• Transparent – important given uncertainty and provisional solutions.• Burden of proof with the applicant
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Pfizer Animal Health SA v. Council of the European Union [2002] ECR II-3305
• Applies in a situation of scientific uncertainty, when a risk assessment cannot provide the decision-maker with conclusive scientific evidence of the reality of the risk or the seriousness of the potential adverse effects were that risk to become a reality
• Can take preventative action without having to wait• Cannot be based on a purely hypothetical approach to the risk …
founded on a mere conjecture which has not been scientifically verified – must be backed up by the scientific data available at the time – therefore must be a scientific assessment
• No to “zero-risk” – i.e. not have to establish positive proof of absolute safety
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Reflections on the Precautionary Principle
• Complex• Primarily procedural• Facts alone not justify a decision. Creates space for non-scientific
arguments to inform the debate and form a basis for decision making
• Therefore interpretation and application raises questions about the values of decision makers – part of a political process, involving democratic deliberation
• Reflects EU’s approach to environmental law which is to separate out facts from values in decisions and create space for both in environmental law and policy – separation between provision of expertise and the political responsibility for decisions
• But – are the two fields kept separate? Tensions between two types of reasoning – technical expertise and politics
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Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Lanbouw, Natuurbeheer en Visserij, C-127/02Likely Signif icant Effect (Article 6(3))•There must be an appropriate assessment unless, on the basis of objective information, it can be excluded that the plan or project will have a significant effect on the site, either individually or in combination with other plans or projects [Waddenzee, para 45].Appropriate Assessment•In undertaking an appropriate assessment, all the aspects of the plan or project must be identified in the light of the best scientific knowledge in the field [Waddenzee, paras 54, 61].Adverse Effect on Integrity•Competent authority must be convinced /certain/made sure that the scheme will not adversely affect the integrity of the site. No reasonable scientific doubt remaining [Waddenzee, para 56, 59, 61].No alternatives/IROPI (Article 6(4))
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Other approaches to regulation in environmental law and policy
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Overview of themes in environmental policy
Command and Control
Procedural/flexible/’experimental’/Governance
Reflexive Approaches – voluntary mechanisms
Economic Instruments
Definition Top downRegulation/Standards
Governance Approaches - deregulatory
Self -regulation Market incentives
Characteristics/Elements
Uniformity/quantativeLicensesStandards
FlexibleMore tolerant of risk
Problem identificationBottom up
Internalisation of externalitiesMarket failure
Examples Drinking Water Directive Water Framework Directive/IPPC/EIA
EMAS Eco Labelling
Emissions Trading Regime
Rule of Law/Policy
Require licence, standardsProvides sanction
Provide informationFramework for debate. Create values.
Embedding values.Information provision
Regulatory paradox – need regulation to start, but relies on free market.
Rationale Scientific/expert led best technique
Efficiency lessens ‘implementation gap’ – input legitimacy
Environmental citizenship.Green awarenessCSR
Internalise externalitiesEfficiencyIncentive for R&D
Participative Nature
Government led In theory lightly participatory – but opaque.
Consumerism Not very transparent/participatory.
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The Water Framework Directive
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Response to the Sandoz
spill
Good (ecological)
status
Intercalibration
Scope for public
participation
Reflexive, iterative
River Basin Plans
Just a talking shop?
Public Participation: The Aarhus Convention 1998
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Although regional in scope, the significance of the Aarhus Conventionis global. It is by far the most impressive elaboration of principle 10 ofthe Rio Declaration, which stresses the need for citizens' participationin environmental issues and for access to information on theenvironment held by public authorities. As such it is the most ambitiousventure in the area of "environmental democracy" so far undertakenunder the auspices of the United Nations.
Other examples…
• Environmental Impact Assessment/Strategic Environmental Assessment – aim to generate information in order to encourage public participation and transparency in environmental decision making
• Environmental Information Regulations – give people access to environmental information in order to encourage public participation and transparency in environmental decision making
• Marine Strategy Framework Directive – builds of WFD principles but in the marine environment. Tries to incorporate an ecosystem approach and sustainable use of marine resources as well as greater cooperation at EU and regional levels and greater levels of public participation
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Personal reflections
Lee & Holder (2005)“Science has a central role in legitimating environmental law and policy: an appeal to ‘facts’, as established by science, is used to pre-empt and undermine criticism. Although …there are inherent difficulties with relying on science in this area, the apparent objectivity and testability of science, seemingly above the fray of divided interest and political advantage, can be extremely attractive to politicians and to lawyers”
“Notwithstanding acknowledgement of public values, the temptation for final decision makers is to seek refuge (rather than enlightenment) in scientific or technical discourse such as risk assessment or cost benefit analysis is great. The challenge is to ensure that technical information is used in a way that informs, rather than usurps, political decision making”
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