The Precautionary Principle in International Environmental Law
The Precautionary Principle inside and outside Marine Protected … · The Precautionary Principle...
Transcript of The Precautionary Principle inside and outside Marine Protected … · The Precautionary Principle...
The Precautionary Principle inside and
outside Marine Protected Areas
Dr Becky Hitchin Offshore Industries Advice Manager
JNCC Marine Advice
Aberdeen
Overview
• Joint Nature Conservation Committee
• The Precautionary Principle
• Uncertainty in Scientific Knowledge
– Limitations of current evidence
– Limitations of analysis
– Understanding impact
– Natural variation
– Guideline / policy wording
• Conclusions
JNCC
Development / implementation of nature conservation
policies
within the UK
UK wide
internationally
Lead on nature conservation in UK offshore waters
JNCC
Contribute to the development and
understanding of UK evidence
base and evidence needs
UK coordination
Statutory advisor to Government on nature conservation
Marine Monitoring
JNCC marine workstreams
Marine Protected Areas (MPS)
Fisheries, Cetaceans and
Seabirds
Offshore Industry Advice (OIA)
Marine Evidence
Marine Ecosystem Assessment and
Advice
The Precautionary Principle
What is the Precautionary Principle?
“The fundamental principle underlying all environmental policy”
“a pointless distraction from the real issues”
“a safeguard for future generations”
“countering a tendency to overlook scientific uncertainties in an unscientific manner”
“anti-scientific, subject to abuse, inherently Northern, anti-innovation, and anti-sustainable”
“raises issues which are central to current international debates around environment, poverty, sustainable development and biodiversity”
(Cooney, 2004)
Definition considered here
(Cameron and Abouchar 19911)
“ensures that a[n] ... activity posing a threat to the
environment is prevented from adversely affecting
the environment, even if there is no conclusive
scientific proof linking that particular ...
activity to environmental damage.”
1 Cameron, J. and Abouchar, J. (1991) The
Precautionary Principle. Boston College International
And Comparative Law Review, 14(1): 1-27.
First part of a risk pathway
Application
Use of PP justified
Specific risk profiles
Use of PP not justified
Adequate evidence present
Adequate evidence absent
Cost
Operational
Thresholds
Reputation
Types of scientific uncertainty within
consenting process
Examples from JNCC teams and what we’re
doing to work on reducing uncertainty
Types of scientific uncertainty
Guideline and policy wording
Limitations of
current evidence
Developer
Natural variation
Limitations of
analyses
Understanding
impact
Science bodies
All
SNCBs / consultees
Regulators / Govt
Guideline and policy wording
Limitations of
current evidence
Developer
Natural variation
Limitations of
analyses
Understanding
impact
Science bodies
All
SNCBs / consultees
Regulators / Govt
OIA – survey evidence
• Distance from operations
• Date of surveys
• Survey techniques
MPS – Haig Fras site boundary changes
• Fishing vessels data 2009
showed reef habitat outwith the
existing site boundaries
• JNCC / Cefas surveys in 2011
and 2012 confirmed this
• Boundary amended to more
tightly reflect presence and
extent of Annex I feature
OIA – ornithology
Displacement and OWF
• Empirical evidence for displacement and energetic
costs lacking
• Often due to difficulties in
• Detecting change in mobile spp. distribution
• Quantifying the energetic costs of any change
• However, we know displacement can occur for
some species and there will be an energetic cost
• Use of ranges to estimate impact likelihood
• Use of proxies and / expert opinion
Guideline and policy wording
Limitations of
current evidence
Developer
Natural variation
Limitations of
analyses
Understanding
impact
Science bodies
All
SNCBs / consultees
Regulators / Govt
Evidence – Assessing Sabellaria reefs
Novel methodology developed
to assess Sabellaria spinulosa
“reefiness”
• video transects split into 5
second segments
• presence/absence
• percentage cover
• estimation of average tube
elevation
• image quality
JNCC – Assessing Arctica islandica
How to adequately survey quahog?
• East of Gannet survey
• Gear comparison studies
• Reworking of conservation
objectives
• Proportional, practical
advice
Video
Grabs ?
Images on right (c) Bernard Picton
Guideline and policy wording
Limitations of
current evidence
Developer
Natural variation
Limitations of
analyses
Understanding
impact
Science bodies
All
SNCBs / consultees
Regulators / Govt
OIA - Marine mammals / noise
Limited evidence
• Marine mammal hearing thresholds – limited species / captive
animals
• Population distributions and localised populations
• Displacement behaviour / species sensitivity
• Advice currently precautionary even though the chance of a
mammal entering a marine noise mitigation zone is pretty low
• Implement JNCC marine noise mitigation guidelines (seismic, piling
and explosives) – currently under review
• PCoD – use of expert judgement
• Noise registry established to assess the distribution of
loud impulsive noise in space and time
MPS – Recovery in Faroe-Shetland Channel
Images (c) Daniel Jones
• Deep-water megafaunal
density and diversity
recovers partially from drilling
disturbance after 3 yr
• Impacts on epibenthic
megafaunal assemblages
are still distinguishable after
a decade
• Recovery studies can allow
us to decide on monitoring
remit and realistic impact
assessments
OIA – Understanding recovery from impact
• Aggregates industry /
CEFAS / RAG working
on UK wide dataset to
inform benthic impact
and recovery
• Each region will be
surveyed every 7
years
• Example of forward-
thinking good practice
in aggregates
Guideline and policy wording
Limitations of
current evidence
Developer
Natural variation
Limitations of
analyses
Understanding
impact
Science bodies
All
SNCBs / consultees
Regulators / Govt
Evidence – natural variation
• Defra contracts
• Analysis of existing data to study effects
of towed fishing gears against a
background of natural variability (Phase I
and II)
• Aggregates RSMP
• User-friendly update to UKDMOS
Types of scientific uncertainty
Limitations of
current evidence
Developer
Natural variation
Limitations of
analyses
Understanding
impact
Science bodies
All
SNCBs / consultees Policy wording Regulators / Govt
Guideline wording All
OIA / MPS – Understanding risk in policy “Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon”
• Levels of risk interpreted from laws or guidelines can
vary greatly among organisations
“When considering whether a function or act is capable of affecting (other than insignificantly) a protected feature of an MPA the following should be considered: •All existing data for the area •Scale, intensity, timing and duration of proposed function or act •Sensitivity of protected feature to the proposed function or act”
“If the authority believes that there is or may be a significant risk of the act hindering the achievement of the conservation objectives stated for the MCZ ...”
• Criteria for significance?
• How ‘high the bar should be’ for
testing whether effect is significant?
• What level of evidence base needed
to fulfil these criteria?
MPS – Conservation Advice
JNCC is revising conservation advice framework
• Consistent in approach and structure
• Ensure consistent approach
– MPA designations / similar protected features
• Provide quantified objectives where possible
• Clearly identify which activities are capable of
impacting a site’s features
• Conservation objectives
– attributes and targets
– scientific literature and expert
judgment
Monitoring – guidelines / standards
[2016]
Conclusions
Conclusions
• Very few industry applications within consenting processes have
adequate evidence for all impacts
• the PP is almost always applicable
• PP is a first step in a wider pathway of precaution
Major differences among conservation bodies, regulators, industry, NGOs etc
Oil and gas, aggregates, renewables – all treated the same? Should all be treated
the same?
Conclusions
• Further guidance is needed on how legislation should be
interpreted so that the levels of precaution associated
with different levels of risk can be better evaluated
“significant”
“likely”
“de minimis”
“not insignificant”
Conclusions
• PP needs to be considered by all participants in the
consenting process
• Regulators have a particular responsibility as their remit
lies at the heart of the PP:
1 Addressing Uncertainty: Law, Policy and the Development of
the Precautionary principle. Cameron, J and W. Wade-Gery.
CSERG working paper GEC 92-43
“The Precautionary Principle stipulates that where the environmental risks being run by regulatory inaction are in some way (a) uncertain, but (b) non-negligible, regulatory inaction is unjustified”1
What is the Precautionary Principle?
“The fundamental principle underlying all environmental policy”
“a pointless distraction from the real issues”
“a safeguard for future generations”
“countering a tendency to overlook scientific uncertainties in an unscientific manner”
“anti-scientific, subject to abuse, inherently Northern, anti-innovation, and anti-sustainable”
“raises issues which are central to current international debates around environment, poverty, sustainable development and biodiversity”
(Cooney, 2004)
Questions
Dr Becky Hitchin
Offshore Industries Advice Manager
JNCC Marine Advice
Aberdeen