The Case for the Precautionary Principle
In 1998, a gathering of scientists, philosophers, lawyers, and environmental activists produced this statement of the Precautionary Principle (known as the Wingspread Statement):
"When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action."
As outlined above, the current scheme of environmental regulation in the U.S. is reactive, not precautionary. It measures and mitigates problems, but does not prevent them. It has proven to be particularly ineffective in protecting biodiversity, which is sensitive to perturbations in ecological community structure. Ironically, the one law that does take a precautionary approach to biodiversity protection is not regarded as “environmental legislation” at all. It is the Organic Foods Production Act (OFPA).
OFPA Embodies Precaution
The Organic Foods Production Act (OFPA) is perhaps the clearest embodiment of the precautionary principle in U.S. law. OFPA first establishes a default requirement against the introduction of synthetic substances in organic farming systems. Then, the law sets criteria for determining which synthetic materials will be allowed, based on a precautionary standard that evaluates harm, compatibility with organic systems, and essentiality (or the actual need for a substance, given the availability of alternative practices or materials):
[7 U.S.C. 6504] National Standards for Organic Production. To be sold or labeled as an organically produced agricultural product under this chapter, an agricultural product shall—
(1) have been produced and handled without the use of synthetic chemicals, except as otherwise provided in this chapter;
[7 U.S.C. 6517] National List.
(c) Guidelines for Prohibitions or Exemptions. — (1) Exemption for prohibited substances in organic production and handling operations.—
The National List may provide for the use of substances in an organic farming or handling operation that are otherwise prohibited under this chapter only if—
(A) the Secretary determines, in consultation with the Secretary of Health and Human Services and the Administrator of the Environmental Protection Agency, that the use of such substances—
(i) would not be harmful to human health or the environment;
(ii) is necessary to the production or handling of the agricultural product because of the unavailability of wholly natural substitute products; and
(iii) is consistent with organic farming and handling;
These three criteria are further elaborated in OFPA and its implementing regulations. They are utilized by the National Organic Standards Board (NOSB), which consists of representatives of all aspects of the organic community (including producers, handlers/processors, retailers, consumers, environmentalists, scientists, and certifiers), in determining acceptable materials in organic production.
The presumption against the use of synthetic materials in organic production establishes the burden of proof that is the key element of precaution. OFPA is also precautionary because the burden of proof to show that the synthetic materials meet the three criteria rests with those who want to have it used in organic production. To be allowed for use under certified organic standards, the NOSB must approve the material by a two-thirds “decisive” vote, adding a further element of precaution. Finally, the law includes a 5-year sunset provision, which requires the NOSB to reevaluate substances to determine compliance with the criteria, given new information on science and practices.
Local Lawn Care Ordinances
The principles of OFPA are being widely applied across the country to lawn care or turf management, as numerous communities prohibit the cosmetic, or aesthetic, use of pesticides. These laws incentivize the adoption of land management systems that nurtures soil microorganisms, a “feed-the-soil” approach that centers on the utilization of compost, and microbial food sources. Experience demonstrates that this approach helps to prevent problems that typically arise from chemical-intensive practices by building a soil environment rich in microbial life that, in turn, produces a strong, healthy turf and landscape able to withstand pressures from heavy usage, insects, weeds, and disease, as well as drought and heat stress. See Lawns and Landscapes.