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#40 -- Leaving the Precautionary Principle Behind?, 31-May-2006

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Rachel's Precaution Reporter #40

"Foresight and Precaution, in the News and in the World"

Wednesday, May 31, 2006..............Printer-friendly version
www.rachel.org -- To make a secure donation, click here.
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Table of Contents...

The State of Precautionary Thinking as Seen by Corporate Advisors
Stratfor, a corporate intelligence service, describes our
upcoming conference in Baltimore and offers its readers a lengthy
opinion about the state of precautionary thinking in the U.S.
San Francisco Is Poised to Ban Toxics in Baby Products
The San Francisco Board of Supervisors has unanimously passed an
ordinance that would ban two particularly nasty chemicals from
children's toys and feeding products. The second reading is June 6
and then it's up to Mayor Gavin Newsome to sign or veto the ordinance.
EPA Union Presidents Invoke Precaution to Protect Children
The presidents of the unions representing scientists and technical
staff of the U.S. Environmental Protection Agency (EPA) have written
to EPA Administrator Stephen L. Johnson urging him to adopt a
precautionary approach to children's exposure to pesticides when
setting allowable exposures under the the Food Quality Protection Act.
This is not the same as a blanket endorsement of the precautionary
principle, but it's a step in the right direction.
Free Trade 'Madness' Threatens Wild Fish Stocks in Scotland
Since the 1937 Diseases of Fish Act, the import of live salmon into
the UK [United Kingdom] has been virtually impossible, but this Act is
now subservient to the EU's [European Union's] overriding founding
principle of free trade between member states... "It is simply
unacceptable for free trade dogma and profit motives to take
precedence over the integrity of the health of our native fish stocks.
Basic precautionary principles must be upheld."
Precaution in International Environmental Law: A View from India
"Another new norm of international environment law is the
precautionary principle. This is basically a duty to foresee and
assess environmental risks, to warn potential victims of such risks
and to behave in ways that prevent or mitigate such risks."

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From: Stratfor: Public Policy Intelligence Report, May 25, 2006
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PRECAUTIONARY POLICY: LEAVING THE 'PRECAUTIONARY PRINCIPLE' BEHIND

By Bart Mongoven

Leading advocates of chemical policy reform will meet in Baltimore in
early June to discuss progress made in changing how the United States
regulates chemicals, genetically modified organisms (GMOs) and
products of nanotechnology. The title of the conference, "Taking
Precautionary Action," suggests that these activists will meet as
advocates not just of regulatory policy reform, but as advocates of
the precautionary principle.

The word choice is interesting, because the "precautionary principle"
-- from which the conference title derives -- is no longer at the
center of regulatory reform efforts. Nevertheless, advocates of the
principle who attend the conference will have a great deal to
celebrate. The precautionary principle -- which advocates a certain
forward-looking decision-making ethic for regulators -- is taking hold
in commerce, but the way in which it is emerging is quite different
from that envisioned by the most ardent supporters of the principle.
Ultimately, the conference's title and agenda suggest that the goals
of those who support the precautionary principle have changed markedly
in the past few years and -- as a result -- are poised to become far
more effective in the United States than ever before.

The significance of the advocates' discussion ultimately does not lie
in questions about who is winning tactical debates or even whether the
precautionary principle will survive as a regulatory tool. The
important question is, instead, how far activists will be able to push
more traditional, familiar types of regulatory reform while still
clinging to the rhetoric of the precautionary principle debate.

Precaution: The Regulatory Context

In its pure form, the precautionary principle demands that a practice
or product should not be permitted by regulators unless it has been
proven not to do harm. Ten years ago, this argument was presented in
highly moral terms. Its advocates claimed that creators and producers
of goods in commerce should know beyond doubt that what they are
selling is safe -- and further, that it is immoral for them to place
consumers in harm's way or treat their customers as guinea pigs or
canaries in coal mines.

Though this sentiment was, framed in those terms, unobjectionable,
turning that into a foundation for regulatory decision-making
processes has proven difficult. Advocates framed the principle as the
antithesis of risk assessment in determining how chemicals in
commerce, nanotechnologies, and GMOs should be regulated. At that
point, the debate stalled.

At a basic level, the precautionary principle sounds like common sense
to most people, who are inculcated from an early age with admonitions
to "look before you leap" or that it is "better to be safe than
sorry." The practice is invoked, at some level, in people's daily
lives. However, everyone's threshold of risk tolerance differs: Some
people refuse to fly; others not only fly, but sky dive. In the
regulatory context, this means that it is impossible to enforce a
precautionary principle for an entire society without severely
curtailing human action. This has been a perpetual problem with the
principle as a regulatory tool.

To make it easier for the public to understand their goals, advocates
have defined four elements of the precautionary principle:

-- Taking precautionary action before cause and effect relationships
are established scientifically, if there are concerns that an activity
might pose a threat to health or the environment.

-- Placing the burden of proof on the proponent of an activity
(usually industry) in determining whether an activity or product is
harmful.

-- Demanding "open, informed, and democratic" decision making
structures for regulators, and thus placing approval of an activity
under a political process.

-- Requiring alternatives assessment -- that is, shifting the central
organizing principle of policymaking away from quantifying and
managing risk, and toward minimizing risk to the greatest extent
possible. Rather than asking what level of pollution is safe or
acceptable, activists reason, society should constantly strive to find
the least hazardous or dangerous alternatives available for achieving
the same goals, and industry should be required to use them.

In early attempts to apply the principle to regulatory decision-
making, advocates of the precautionary principle often got hung up on
the first element above. The tendency was to argue that an activity or
product should not be allowed until it had been proven not to cause
harm. The problem was that, despite centuries of careful thought and
study, proving a negative remains impossible, so applying this strict
standard was never a credible approach. And parsing the issue -- for
instance, defining whether a practice or substance gave rise to
"concerns" -- proved too vague for the precautionary principle to
withstand scrutiny from legislators or regulators.

In response to early failures, most precautionary principle advocates
simplified the issue into one that simply demanded a reversal in the
burden of proof standard. In order to win regulatory approval, the
party that wants to make something new must convincingly show that the
product, process or practice is not harmful. Advocates compare the
precautionary principle in this form to the reversal of the burden of
proof that drug companies face in phased trials.

While this makes sense in a vacuum, it has a clear stifling effect in
the regulatory context. Drug companies invest millions of dollars and
tremendous man-hours in convincing Federal Drug administration boards
that a proposed drug is safe and effective. Now imagine having to go
through a similar test for every new cleaning solution, every new
nanoparticle created, every new genetic manipulation. The process
would be clumsy and wasteful (and if drug approval is any model, a
streamlined system likely would be more prone to mistakes -- allowing
unsafe products onto the market while banning safe ones).

Policy reform advocates have called for regulators to focus on those
substances that are most heavily used in commerce and those with
characteristics that make them inherently more likely to be
problematic. Demanding that some products and processes be proven safe
-- but not forcing the issue for others -- is fundamentally at odds
with the application of the "precautionary principle."

And this is where things get impossibly fuzzy. If the precautionary
principle is based on the belief that the only moral course of action
is to force the maker of a product to prove the product safe, invoking
it occasionally is not enough. Practicing only half of a precautionary
principle is not precautionary. Half a precautionary principle means
either invoking an ethic with no follow-through, or more
interestingly, the dramatic politicization of regulatory decision-
making -- placing the advance of science and technology in a
completely political forum.

Examples of both problems can be found in Europe, which has not found
a solution to either. Almost all E.U. laws or regulations drafted this
decade invoke the precautionary principle, but it is seldom used as a
decision-making tool. The principle has been invoked in contexts like
the emerging chemical policy reform known as REACH, under which the
stringency of testing standards for chemicals likely will be
correlated to the volume of their usage in commerce. This is a logical
policy but does not, of course, rise to the level of the precautionary
principle as defined above.

Europe also is grappling with the politicization of science and
technology as a result of the precautionary principle, which was
invoked for more than a decade in the battle over whether Europe would
import GMOs. There was no clearly risk-based reason to exclude GMOs
from the market, so regulators invoked the principle to justify the
E.U.'s opposition to the imports. The E.U. was forced to change its
law after the World Trade Organization judged the use of the principle
to be a non-tariff barrier to trade. Nevertheless, the appeal of the
precautionary principle can still be seen among the many European
consumers who were sold on the notion that GMOs actually posed a
danger to their health.

Precautionary Elements: Coming Into Practice

With de jure adoption of the precautionary principle making little
headway, it is interesting to see the various ways in which the
principle is being used. What is emerging in the United States is a
new approach to risk and risk policy, one that does not demand purity
or portray risk as morally repugnant. Instead, some of the elements of
the four-part definition of the precautionary principle are coming to
the fore in their own right. This does not necessarily add up to
regulatory adoption of the precautionary principle, but it does signal
that decision-makers are being pushed away from pure risk assessment
and reliance on current science, and that a new decision-making
environment is being ushered in.

The most powerful engine of precautionary thought right now is the
advocacy of "alternatives assessment." This is seen both in
shareholder campaigns and in pressure toward new security approaches
for chemical, nuclear and other types of industrial facilities.

Crucial issues are becoming evident in the move toward creation of a
"chemical risk" argument. Chemical risk holds that science (especially
toxicology) is changing rapidly and new things are being learned. In
this environment, consumer product companies -- the downstream
customers of businesses involved in chemicals, genetic modification
and nanotechnology -- run the risk that the products they are buying
now eventually could be found to be contributing to health problems.
Such discoveries could lead to lawsuits, or to rapid phase-outs of the
hazardous substances -- leaving the downstream customers with
significant challenges in reformulating their own products.

Given these possibilities, activists increasingly are appealing to
consumer product companies (currently through their shareholders) to
examine the substances they use and to assess which of them could in
the future become controversial or problematic. The argument is that a
smart company should immediately begin looking for alternatives to
these substances, and should phase out the troublesome materials as
quickly as possible. In practice, these phaseouts would not be based
on current risk assessments or on any findings of danger. The
substance or practice would be phased out simply because it is
controversial. If this trend wins support, substances that are
politically unpopular will be phased out with increasing frequency --
and one important element of the precautionary principle, alternatives
assessment, will be in de facto operation.

The second area in which the precautionary principle is making strides
is in the arena of facility security, and -- again -- it is through
the alternatives assessment concept. In the wake of the 9/11 attacks,
Americans began assessing their security from a terrorist's
perspective and identifying potential risks. Chemical and nuclear
plants have been seen by many as potentially attractive targets for
terrorists.

Activists who had long been supportive of the precautionary principle
saw an opportunity in the chemicals industry. They began to demand not
simply that chemical manufacturing facilities should improve their
security measures and safeguards, but that the companies should begin
using "inherently safer technologies" as well. This approach is the
production-side corollary to alternatives assessment. In effect,
engineers are being asked to assess the potential risks associated
with the operations of a chemical or nuclear facility and to determine
what alternative means of production are available that would reduce
the risks to the local populace if the facility were attacked by
terrorists.

This kind of regimen is certainly more realistic for chemical and
manufacturing facilities than it is for nuclear power plants. The
alternatives assessment argument has been most effective in the
context of municipal water systems, which are often located in
populated areas and which naturally keep on hand significant stores of
volatile chemicals (usually chlorine). Similarly, facilities that use
ammonia in the creation of fertilizer fall into this group, as do the
rail companies that transport chemicals like chlorine and ammonia.

Conclusion

The crucial question that arises is whether the meaning of the
precautionary principle has undergone a fundamental shift in the last
five years. In the 1990s, the term was used in the United States as
the basis for a moral appeal to change the way government regulates
products. Today, it is invoked as a social ethic and as a symbolic
goal, but its advocates generally promote the principle's adoption
only in a symbolic sense. This is a critical point.

When advocates of the precautionary principle meet next month in
Maryland, it will be with the stated goal of assessing local, state,
and federal governments' progress toward implementing the principle.
But judging from the conference agenda, participants instead will be
discussing regulatory changes within a risk-based framework. They will
debate the degree to which Europe's REACH policy might be emulated in
the United States and the ways in which a proliferation of state laws
ultimately can be used to pressure the federal government for
fundamental regulatory reform. The pure precautionary principle --
reverse burden of proof, precautionary action, alternatives assessment
-- will not feature as prominently at the conference as will
discussions of regulatory reform.

If the precautionary principle remains synonymous with "regulatory
restructuring" -- rather than with "proving a substance or activity is
not harmful" -- advocates of regulatory reforms have a genuine chance
of succeeding. They will be speaking in terms that can be implemented,
and they will still be appealing to the public with a defensible moral
argument.

(c) 2006 Strategic Forecasting, Inc.

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From: Environment California, May 25, 2006
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SAN FRANCISCO IS POISED TO BAN TOXICS IN BABY PRODUCTS

Would be first city in the nation to do so.

SAN FRANCISCO, CA -- The Stop Toxic Toys bill, which would ban two
toxic chemicals -- phthalates and bisphenol-A -- from children's toys
and feeding products, passed the San Francisco Board of Supervisors on
Tuesday, May 23rd, in an 11-0 vote.

Phthalates (pronounced thay-lates) often used in soft PVC plastic
children's toys, have been linked to reproductive birth defects, early
onset of puberty, asthma, and reduced testosterone in boys. If signed
into law, San Francisco would become the first city in the country to
ban these chemicals. The European Union and at least twelve countries
have passed bans or restrictions on the use of phthalates in products
for small children.

Bisphenol-A, a known hormone disruptor, is a common ingredient in hard
plastic baby bottles and has been shown to leach out of the plastic,
especially in older bottles. Even at very low doses it has been linked
to obesity, early onset of puberty, behavioral problems, reduced sperm
production, increased cancer cell growth, and impaired immune
function.

"Many parents would be shocked to learn that the plastic baby bottle
they're giving their child could damage their health. When you look at
the science behind these chemicals, there is no question that they
ought to be banned from baby products," said Supervisor Fiona Ma, the
author of the San Francisco bill.

"We cannot allow toxic chemicals to be used in products for young
children, especially those specifically designed to be put into their
mouths," said Rachel Gibson, Staff Attorney for Environment
California
. Environment California was the sponsor of California
legislation -- AB 319 (Chan) -- that would have imposed a statewide
restriction on the use of phthalates and bisphenol-A in children's
toys and feeding products. "The California legislature failed to take
appropriate action this year when it had the opportunity to do so. We
applaud the San Francisco Board of Supervisors for taking this
significant step to protect our most vulnerable population."

Supervisors Ma, Maxwell, Alioto-Pier, Ammiano, and McGoldrick co-
authored the San Francisco Stop Toxic Toys bill. The final reading of
the bill is June 6, after which it goes to Mayor Gavin Newsom for his
signature or veto.

###

Rachel L. Gibson
Environmental Health Advocate & Staff Attorney
Environment California
369 Broadway, Suite 200
San Francisco, CA 94133
(415) 622-0086 x304
(415) 622-0016 (fax)
rgibson@environmentcalifornia.org
www.environmentcalifornia.org

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From: Public Employees for Environmental Responsibility, May 24, 2006
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EPA UNION PRESIDENTS INVOKE PRECAUTION TO PROTECT CHILDREN

Stephen L. Johnson, Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

Dear Administrator Johnson:

We Local Presidents of EPA Unions representing scientists, risk
managers, and related staff, are writing to express our concern that
EPA could betray the public trust by violating the intention of the
Food Quality Protection Act (FQPA) to protect the Nation's infants,
children, and susceptible subpopulations, unless the Agency adheres to
principles of scientific integrity and sound science in the pesticide
tolerance reassessments it is undertaking.

There are more than 20 neurotoxic organophosphate (OP) and carbamate
pesticides scheduled for final tolerance decisions by EPA no later
than August 3, 2006, as required by the FQPA. During the 1990s, the
Agency reached partial cancellation agreements with the registrants of
+certain OP pesticides, such as chlorpyrifos, methyl parathion, and
diazinon, based on compelling information that these neurotoxic
pesticides damage the developing nervous system of fetuses, infants
and children (an effect known as "developmental neurotoxicity").

Those actions were consistent with the overarching precautionary
intent of FQPA which requires that, in the absence of reliable data on
toxicity or exposure, the Agency must ensure an adequate margin of
safety for the health of the nation's infants, children, and
susceptible subpopulations through the use of uncertainty factors in
relevant analysis.

Accordingly, as EPA approaches the August 2006 statutory deadline for
the determination of final tolerances for the remaining OP and
carbamate pesticides, we urge the Agency to adhere to its principles
of scientific integrity and employ the precautionary approach intended
by the FQPA in assessing the cumulative and aggregate exposure and
risk from the uses of these neurotoxicants. This approach --
compliance with the FQPA and our principles of scientific integrity --
is the only way to remain faithful to the public trust and ensure that
our children will not be exposed to pesticides that may permanently
damage their brains and nervous systems.

The partial cancellation agreements of the 1990's mostly addressed
residential exposures, but did not adequately consider continued
exposure through foods eaten. As risk assessors, we continue to be
troubled by the Agency's failure to adequately consider exposure to
neurotoxic pesticides by infants and children who commonly enter
fields treated with these pesticides while accompanying their parents
employed to perform post-application tasks. The children of
farmworkers, living near treated fields, are also repeatedly exposed
through pesticide drift onto outdoor play areas and through exposure
to pesticide residues on their parents' hair, skin, and clothing.

Additionally, we are concerned that unborn fetuses may also be exposed
to these neurotoxicants when pregnant women are employed to handle
(mix, load, apply) these pesticides or are employed to enter treated
areas to perform hand labor tasks following pesticide applications.

The Agency's own Scientific Advisory Panel (SAP) has expressed concern
that the Pesticide Program's current approaches may not be
sufficiently conservative, may underestimate the risks to infants and
children, and do not adequately identify individuals that may be
inherently sensitive to neurotoxicants. (May 25, 1999 SAP meeting)

We are confident that you share our sense of urgency about taking the
necessary actions to protect the health of our Nation's children. As
you are aware, in August 1999, EPA informed the public that it was
issuing data call-in notices to pesticide registrants of
cholinesterase-inhibiting OP pesticides and requiring submission of
data on developmental neurotoxicity.

We are concerned that the Agency has not, consistent with its
principles of scientific integrity and sound science, adequately
summarized or drawn conclusions about the developmental neurotoxicity
data received from pesticide registrants. Our colleagues within the
Agency, including EPA's Inspector General (EPA IG), believe that it
would be premature to conclude that there is a complete and reliable
database on developmental neurotoxicity of pesticides (see Attachment)
upon which to base any final tolerance reassessment decisions as
required by the FQPA. Consequently, EPA's risk assessments cannot
state with confidence the degree to which any exposure of a fetus,
infant or child to a pesticide will or will not adversely affect their
neurological development.

As you also know, in the absence of a robust body of data, FQPA
requires EPA to use an additional 10-fold safety factor in its risk
assessments when setting pesticide tolerances. Thus both statutory
language and sound science require that the Agency continue to retain
the 10-fold safety factor as a precaution when reassessing the
tolerances for the remaining OP and carbamate pesticides given the
existing uncertainty about developmental neurotoxicity.

Many influential proponents of agriculture have repeatedly expressed
their concerns to EPA about properly coordinating with agricultural
stakeholders, the U.S. Department of Agriculture (USDA), and producers
when implementing FQPA. It appears that the Agency has inadvertently
taken this to mean that the concerns of agriculture and the pesticide
industry come before our responsibility to protect the health of our
Nation's citizens. We are concerned that the Agency has lost sight of
its regulatory responsibilities in trying to reach consensus with
those that it regulates, and the result is that the integrity of the
science upon which Agency decisions are based has been compromised.

Our colleagues in the Pesticide Program feel besieged by political
pressure exerted by Agency officials perceived to be too closely
aligned with the pesticide industry and former EPA officials now
representing the pesticide and agricultural community; and by the USDA
through their Office of Pest Management Policy. Equally alarming is
the belief among managers in the Pesticide and Toxics Programs that
regulatory decisions should only be made after reaching full consensus
with the regulated pesticide and chemicals industry.

In the rush to meet the August 2006 FQPA statutory deadline, many
steps in the risk assessment and risk management process are being
abbreviated or eliminated in violation of the principles of scientific
integrity and objectivity by which we as public servants are bound.
Congress specifically asked EPA to take reasonable action to reduce
the risk of pesticides for infants and children where existing uses
posed a concern. We should honor the charge from Congress to protect
the public health, unencumbered by political influences; therefore, at
this time, we do not believe that the Agency should make any final
tolerance reassessment decisions.

We therefore request the following:

1. Where data are insufficient for decision-making, that you make
decisions based on the Precautionary Principle and add appropriate
uncertainty factors to protect human health in conformity with the
FQPA and our principles of scientific integrity.

2. Where developmental neurotoxicity studies are absent, it is
imperative that the Agency continue to retain the 10-fold safety
factor -- if not increase it -- as a precaution, when making final
reregistration decisions for OP and carbamate pesticides.

3. That EPA issue an interim reregistration decision mandating that
maximum protections -- engineering controls for handlers and longer
re-entry intervals for postapplication labor- be put into place for
agricultural uses of these pesticides; where this is not feasible,
cancel these registrations, as EPA promised before. EPA issued PR
Notice 2000-9
in 2000 to this effect (Worker Risk Mitigation for
Organophosphate Pesticides) but then never carried through on this.

In its response to comments on this PR notice, EPA stated that the
Agency will seek cancellation of uses if available risk mitigation
measures, such as engineering controls and extended REI's, do not
provide an adequate margin of safety and the risks outweigh the
benefits
.

Six years is an unacceptably long wait. It is time to act now, and act
responsibly.

4. That you take steps to ensure that the Agency consider non-
pesticide chemicals -- industrial and commercial -- in the same manner
as pesticides with regard to their potential impact on the health of
our nation's children.

Administrator Johnson, we ask that you adhere to your pledge to
protect the public health of our nation's infants and children, ensure
that final tolerance reassessment decisions are unbiased by outside
political influences, and that any decisions be based on a transparent
and complete database in conformity with the law, sound science, and
our principles of scientific integrity. Until EPA can state with
scientific confidence that these pesticides will not harm the
neurological development of our nation's born and unborn children,
there is no justification to continue to approve the use of the
remaining OP and carbamate pesticides.

The undersigned take our civil service oath very seriously. We believe
that it would be a perversion of the constitutional process and
betrayal of the public trust for the agency to fail to adhere to the
mandates of the FQPA. We recognize that under the Constitution our
role is only to provide the above advice to you, while your role is to
faithfully execute the laws entrusted to your administration. We
believe that by providing this advice in the strongest possible terms
we are fulfilling our duty and helping you to fulfill yours.

Very sincerely yours,

/S/

Dwight A. Welch, President,

NTEU Chapter 280, Washington, DC

/S/

Dave Christenson, President

AFGE Local 3607, Denver

/S/

Larry Penley, President

NTEU Chapter 279, Cincinnati

/S/

Patrick Chan, President

NTEU Chapter 295, San Francisco

/S/

Paul Scoggins, President

AFGE Local 1003, Dallas

/S/

Steve Shapiro, President

AFGE Local 3331, Washington, DC

/S/

Mark Coryell, President

AFGE Local 3907, Ann Arbor

/S/

Wendell Smith, President

ESC EPA -- Unit San Francisco

/S/

John O'Grady, President

AFGE Local 704, Chicago

Attachment 1

Examples of support for the conclusion that EPA cannot yet ensure that
fetuses, infants and children will not suffer developmental
neurotoxicity from exposure to neurotoxic pesticides:

(1) The January 10, 2006 Office of Inspector General Report,
"Opportunities to Improve Data Quality and Children's Health through
the Food Quality Protection Act" states that:

EPA's required pesticide testing does not include sufficient
evaluation of behavior, learning or memory in developing animals.

EPA has no standard evaluation procedure for interpreting results from
DNT tests.

EPA has not yet summarized or drawn conclusions about DNT which it has
collected for pesticides.

(2) Not all scientists are in agreement with EPA that developmental
effects of the OP pesticide chlorpyrifos occur only at doses above
those which cause cholinesterase inhibition, or even that they occur
exclusively through the mechanism of cholinesterase inhibition. (see
for example: Cholinergic systems in brain development and disruption
by neurotoxicants: nicotine, environmental tobacco smoke,
organophosphates, Toxicol. Pharmacol.198: 132-151 (2004; Guidelines
for developmental neurotoxicity and their impact on organophosphate
pesticides: a personal view from an academic perspective,

Neurotoxicology 25(4): 631-640 (2004).

(3) EPA has data demonstrating that the immature are more sensitive to
the OP pesticide malathion than adults (see for example Developmental
Neurotoxicity Study in Rats, August 22, 2002. Memorandum. MRID
45646401; and Special Study, Effects on Cholinesterase Inhibition in
Adult & Juvenile CD Rats, Companion Study to Developmental
Neurotoxicity Study 870.6300., Tox Review No. 0050550, MRID No.
45566201).

(4) EPA has also received, but has not released for review by the SAP
or external parties, data suggestive of direct effects of malathion on
brain structure concurrent with cholinesterase inhibition and changes
in behavior (personal communication, Dr. Brian Dementi; see also
paragraphs #8, 9,11,12,13, and 17 of the June 20, 2005 letter to you
from Dr. Dementi in which he advised you of these concerns).

(5) More data are accumulating indicating differential sensitivity to
other OP pesticides greater than the 10-fold safety factor required by
FQPA (see for example Paraoxonase polymorphisms, haplotypes and enzyme
activity in Latino mothers and newborns, Pharmacogenetics and Genomics
16: 183-190 (2006).

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From: FishUpdate.com, May 30, 2006
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FREE TRADE 'MADNESS' THREATENS WILD FISH STOCKS IN SCOTLAND

SCOTLAND'S wild fish interests are launching a major campaign to
expose the serious risk of devastating and deadly fish diseases being
introduced to the country through the import of live fish. The
Association of Salmon Fishery Boards and the Rivers and Fisheries
Trusts of Scotland claim the spread of diseases and parasites in both
wild and farmed fish is almost always due to the movement of live
fish.

Against a background of some 30 million salmon eggs being imported
from Norway to Scotland this year, there is mounting pressure from
some Norwegian-owned salmon farming companies for them to be permitted
to transfer juvenile salmon to their sites in the west Highlands and
the Hebrides. This, the organisations claim, is despite the fact that
there is more than adequate capacity within Scotland's salmon smolt
producing companies to meet the demands of the industry for juvenile
fish -- to the continuing benefit of employment in remote areas of
Scotland. In addition some of Scotland's indigenous salmon farmers are
fundamentally opposed to live fish imports.

Trade in live fish from Norway is currently prohibited under EU
regulations until certain standards within Norway have been achieved
and disease free zones have been approved. However it is understood
that these conditions could soon be met -- effectively giving the
green
light to trade in live salmon from Norway. This is despite the fact
that Norway currently has a much lower fish health status than the UK
where the benefits of island status have long been reinforced by a
history of strict fish health controls. Since the 1937 Diseases of
Fish Act, the import of live salmon into the UK has been virtually
impossible, but this Act is now subservient to the EU's overriding
founding principle of free trade between member states and EFTA
countries.

Andrew Wallace, Director of the Association of Salmon Fishery Boards
and Policy Director of the Rivers and Fisheries Trusts of Scotland,
explained: "Norway's dubious history of disease prevention and control
is ringing serious alarm bells for both Scottish wild fisheries
managers and also Scottish fish farmers. Diseases such as Gyrodactylus
salaris and Infectious Salmon Anaemia (ISA) are endemic in both
Norwegian farmed and wild salmon populations with nine outbreaks of
ISA alone in the last year. The trade in live fish is recognised as
being the principal means by which these diseases are spread. There
therefore can be no doubt that any increase in the trade of live fish
will expose the UK's unique fish health position to markedly increased
and unacceptable risks. Norway's poor record on disease control was
highlighted in the recent EFTA Surveillance Authority report, which
does nothing to reassure us that Norway has adequate mechanisms to
prevent the export of serious fish diseases to the UK".

Mr Wallace continued: "Live fish imports could have disastrous
implications for the conservation status of many of our rivers, 17 of
which are specifically designated under the EC Habitats and Species
Directive, and also for Scotland's salmon angling industry, which is
worth some £80 million a year. We are particularly concerned
about the
possible introduction of Gyrodactylus salaris (Gs). This is perhaps as
serious a disease for salmon health and stocks as Foot and Mouth is
for farm livestock -- with one critical difference: once established,
Gs could be impossible to eradicate".

Paul Knight, Executive Director of the Salmon and Trout Association,
commented: "Live fish imports are completely unnecessary and no matter
what safeguards are put in place, they can never be absolute. Just one
Gs-infected fish could spell disaster from which recovery may well be
impossible. It is simply unacceptable for free trade dogma and profit
motives to take precedence over the integrity of the health of our
native fish stocks. Basic precautionary principles must be upheld".
The campaign against live fish imports has been set in motion by the
extensive distribution of a detailed letter, which has been sent to
selected MEPs, all MSPs, the DGs of relevant EU Directorates (SANCO /
Environment / Fisheries), Scottish Ministers, DEFRA, SEERAD and SNH.
The letter is signed by the Association of Salmon Fishery Boards and
the Rivers and Fisheries Trusts of Scotland and countersigned by every
significant fisheries management and angling body in Scotland together
with many others elsewhere in the UK.

Fishupdate.com (C) 2006

Return to Table of Contents

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From: National Law Schoool of India, Jul. 12, 2002
[Printer-friendly version]

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL LAW: A VIEW FROM INDIA

By Shyam Divan

A. INTRODUCTION

In international law, a distinction is often made between hard and
soft law. Hard international law generally refers to agreements or
principles that are directly enforceable by a national or
international body. Soft international law refers to agreements or
principles that are meant to influence individual nations to respect
certain norms or incorporate them into national law. Although these
agreements sometimes oblige countries to adopt implementing
legislation, they are not usually enforceable on their own in a court.

If a treaty or convention does not specify an international forum that
has subject matter jurisdiction, often the only place to bring a suit
with respect to that treaty is in the member state's domestic court
system. This presents at least two additional hurdles. If the member
state being sued does not have domestic implementing legislation in
place to hear the dispute, there will be no forum available. Even in
the event that the domestic legislation provides for such suits, since
the judges who decide the case are residents of the country against
which it is brought, potential conflicts of interest arise.

Only nations are bound by treaties and conventions. In international
forums, such as the International Court of Justice (ICJ), countries
must consent to being sued. Thus, it is often impossible to sue a
country. The final question in the jurisdictional arena is who may
bring a suit. Often, only countries may sue countries. Individual
citizens and non-governmental organisations (NGOs) cannot. This has
huge repercussions. First, the environmental harm must be large and
notorious for a country to notice. Second, for a country to have a
stake in the outcome of the subject matter, some harm may have to
cross the borders of the violating country into the country that is
suing. Finally, even if transboundary harm does exist, the issue of
causation, especially in the environmental field, is often impossible
to prove with any certainty.

The enforcement issue is one where advocates for a safer environment
often find themselves stymied. Even if a treaty or convention provides
for specific substantive measures to be taken by a country (many
treaties merely provide 'frameworks'), specifies a forum for dispute
resolution and authorizes sanctions for non-compliance, international
law remains largely unenforceable. A country cannot be forced to do
what it is not willing to do. One can sanction the country, order
damages, restrict trade, or, most frequently, publicize non-
compliance. But beyond that, if a country will not comply, there is
very little to be done.

International institutions are generally not responsible for directly
implementing and enforcing international environmental law, but they
often play important monitoring, informational and diplomatic roles.
For example, the 1992 Convention on the Conservation of Biological
Diversity (Biodiversity Convention)(1) created a new international
body, the Committee on Sustainable Development (CSD). The CSD lacks
the power to bring enforcement actions against either governments or
private parties, but it plays a role in implementing the Biodiversity
Convention. The CSD helps monitor national compliance efforts by
requiring member nations to submit annual reports. Through its
meetings and publications, the CSD also provides a forum to discuss
and debate issues associated with global protection of biological
diversity and forests.

B. SOME CORE ISSUES RELATING TO INTERNATIONAL ENVIRONMENTAL LAW

Consider for a moment why any law is enacted -- domestically or
internationally. Some would maintain that it is a moral statement
about behaviour that a society cannot tolerate. Some would argue that
certain conduct is outlawed to deter that conduct, which is why we
also attach a penalty. Some would argue, especially in light of the
inefficiencies in enforcement, that laws socialize society's members
to behave in a certain way by defining a code.

What is the purpose of international environmental law -- is it a
moral statement, a deterrence, or a socializing tool? If it is a moral
statement, which many of the framework conventions seem to be, is it
merely aspirational? Do we honestly believe that all nations will
achieve all the ideals expressed in all the agreements? Or do we, as a
global community, simply like to think of ourselves as the kind of
people who believe in these things? If it is intended as deterrence,
why are there not more international forums for dispute resolution,
more international bodies empowered to enforce agreements, more
substantive requirements, and more 'hard law' self-executing
agreements? If there were, would any nation sign them? If it is
intended as a socialization technique, is it working? Are nations more
environmentally aware?

If ultimately all international environmental law is unenforceable,
what good is it? Does it accomplish anything to find a country out of
compliance with a treaty? What about publicity? What if the economic
benefits of a project such as the Narmada Valley Project, are believed
by government officials to outweigh the negative effects of the
publicity?

The practice of relying on domestic implementing legislation to
enforce international environmental agreements leave state parties in
the position of having different obligations under the same treaty,
depending on how their legislative, executive and judicial bodies
interpret and implement the treaty. Is this fair? What about the costs
and administrative burdens that are associated with creating and
enforcing legislation? Does this put richer countries in a better
position to comply with treaties?

What is the purpose of the informational roles of international
institutions? Will more knowledge about the global environment and our
impacts on it lead to better compliance? Or will so many new issues
lead to non-compliance due to uncertainty? If it appears to the
average citizen that virtually everything she does has a negative
environmental impact, will she not cease to try to change any
behaviour?

C. INDIA'S INTERNATIONAL OBLIGATIONS

India has obligations under numerous international treaties and
agreements that relate to environmental issues. As a contracting
party, India must have ratified a treaty, that is, by adopting it as
national law before it came into force, or by acceding to it after it
has come into force. For a treaty to enter into force, the requisite
number of countries must ratify the treaty, which then has the force
of international law.

Specific obligations under any treaty vary, depending on the treaty
itself. The nature and degree of compliance and implementation depend
on a number of factors, among them: (1) the capabilities and staff of
an international institution charged with coordinating national
compliance efforts, if there is one; (2) the willingness of other
state parties to enforce or comply with the treaty; (3) the political
agenda of the government and popular support; (4) trade and diplomatic
pressures brought to bear by other countries; and (5) sometimes,
judicial or NGO involvement through court cases and publicity.

INDIA'S TREATY OBLIGATIONS

1. The Antarctic Treaty (Washington, 1959) 402 UNTS 71. Entered into
force 23 June 1961. India ratified with qualifications, 19 August
1983.

2. Convention on Wetlands of International Importance, Especially as
Waterfowl Habitat (Ramsar, 1971). 11 I.L.M. 963 (1972). Entered into
force 21 December 1975. India acceeded, October 1, 1981.

3. Convention Concerning the Protection of the World Cultural and
Natural Heritage (Paris, 1972). 11 I.L.M. 1358 (1972). Entered into
force 17 December 1975. India signed, 16 November 1972.

4. Convention on International Trade in Endangered Species of Wild
Fauna and Flora (Washington, 1973) 12 I.L.M. 1055 (1973). Entered into
force 1 July 1975. India signed, 9 July 9 1974; ratified 20 July 1976.

5. Protocol of 1978 Relating to the International Convention for the
Prevention of Pollution from Ships, 1973 (MARPOL) (London, 1978).
Entered into force 2 October 1983. India ratified with qualifications,
24 September 1986.

6. Convention on the Conservation of Migratory Species of Wild Animals
(Bonn, 1979) 19 I.L.M. 15 (1980). Entered into force 1 November 1983.
India signed, 23 June 1979; ratified 4 May 1982.

7. Convention on the Conservation of Antarctic Marine Living Resources
(Canberra, 1980). 19 I.L.M. 841 (1980). Entered into force 7 April
1982. India ratified, 17 June 1985.

8. United Nations Convention on the Law of the Sea (Montego Bay,
1982). 21 I.L.M. 1261 (1982). Entered into force 16 November 1994.
India signed, 10 December 1982.

9. Convention for the Protection of the Ozone Layer (Vienna, 1985). 26
I.L.M. 1529 (1987). Entered into force 22 September 1988. India
ratified, 18 March 1991.

10. Protocol on Substances That Deplete the Ozone Layer (Montreal,
1987). 26 I.L.M. 1550 (1987). Entered into force 1 January 1989. India
acceded, 19 June 1992.

11. Amendments to the Montreal Protocol on Substances That Deplete the
Ozone Layer (London, 1990). 30 I.L.M. 541 (1991). Entered into force
10 August 1992. India acceded, 19 June 1992.

12. Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal (Basel, 1989). 28 I.L.M. 657 (1989). Entered
into force 5 May 1992. India signed, 5 March 1990; ratified 24 June
1992.

13. United Nations Framework Convention on Climate Change (Rio de
Janeiro, 1992). 31 I.L.M. 849 (1992). Entered into force 21 March
1994. India signed, 10 June 1992; ratified 1 November 1993.

14. Convention on Biological Diversity (Rio de Janeiro, 1992). 31
I.L.M. 818 (1992). Entered into force 29 December 1993. India signed,
5 June 1992; ratified 18 February 1994.

15. Convention to Combat Desertification in Those Countries
Experiencing Serious Drought and/or Desertification, Particularly in
Africa (Paris, 1994). 33 I.L.M 1332 (1994). Entered into force, 26
December 1995; India signed, 14 October 1994; ratified 17 December
1996.

16. International Tropical Timber Agreement (Geneva, 1994). 33 I.L.M.
1016 (1994). Entered into force 1 January 1997. India signed, 17
September 1996. India ratified 17 October 1996.

17. Protocol on Environmental Protection to the Antarctica Treaty
(Madrid, 1991). Entered into force 15 January 1998.

D. ESTABLISHED NORMS OF INTERNATIONAL ENVIRONMENTAL LAW

Norms are general legal principles that are widely accepted. This
acceptance is evidenced in a number of ways, such as international
agreements, national legislation, domestic and international judicial
decisions, and scholarly writings. The leading norms in the field of
international environmental law are addressed below:

(1) Foremost among these norms is Principle 21 of the 1972 Stockholm
Declaration on the Human Environment. Principle 21 maintains that
'States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit
their own resources pursuant to their own environmental policies, and
the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States or
of areas beyond the limits of national jurisdiction".(2)

(2) Another widely shared norm is the duty of a state to notify and
consult with other states when it undertakes an operation that is
likely to harm neighbouring countries' environments, such as the
construction of a power plant, which may impair air or water quality
in downwind or downstream states.

(3) Over and above the duty to notify and consult, a relatively new
norm has emerged whereby states are expected to monitor and assess
specific environmental conditions domestically, and disclose these
conditions in a report to an international agency or international
executive body created by an international agreement, and authorised
by the parties to the agreement to collect and publicize such
information.

(4) Another emerging norm is the guarantee in the domestic
constitutions, laws or executive pronouncements of several states,
including India,(3) Malaysia, Thailand, Indonesia, Singapore and the
Philippines, that all citizens have a right to a decent and healthful
environment. In the United States, this fundamental right has been
guaranteed by a handful of states but not by the federal government.

(5) Most industrialized countries subscribe to the polluter pays
principle. This means polluters should internalise the costs of their
pollution, control it at its source, and pay for its effects,
including remedial or cleanup costs, rather than forcing other states
or future generations to bear such costs. This principle has been
recognized by the Indian Supreme Court as a 'universal' rule to be
applied to domestic polluters as well.(4) Moreover, it has been
accepted as a fundamental objective of government policy to abate
pollution.(5)

(6) Another new norm of international environment law is the
precautionary principle. This is basically a duty to foresee and
assess environmental risks, to warn potential victims of such risks
and to behave in ways that prevent or mitigate such risks. In the
context of municipal law, Justice Kuldip Singh of the Supreme Court
has explained the meaning of this principle in the Vellore Citizens'
Welfare Forum Case,(6) which is excerpted later in this section.

(7) Environmental impact assessment is another widely accepted norm of
international environmental law. Typically, such an assessment
balances economic benefits with environmental costs. The logic of such
an assessment dictates that before a project is undertaken, its
economic benefits must substantially exceed its environmental costs.
India has adopted this norm for select projects which are covered
under the Environmental Impact Assessment (EIA) regulations introduced
in January, 1994.(7)

(8) Another recent norm is to invite the input of non-governmental
organizations (NGOs), especially those representing community-based
grassroots environmental activists. This NGOs participation ensures
that the people who are likely to be most directly affected by
environmental accords will have a major role in monitoring and
otherwise implementing the accord. This principle is mirrored in the
Indian government's domestic pollution control policy(8) and the
national conservation policy,(9) and is given statutory recognition in
the EIA regulations of 1994. The Supreme Court has urged the
government to draw upon the resources of NGOs to prevent environmental
degradation.(10)

(9) In October 1982, the United Nations General Assembly adopted the
World Charter for Nature and Principles of Sustainable Development.
The agreement expressly recognised the principle of sustainable
development, defined as using living resources in a manner that 'does
not exceed their natural capacity for regeneration' and using 'natural
resources in a manner which ensures the preservation of the species
and ecosystems for the benefit of future generations.' The principle
of sustainable development was also acknowledged in the 1987 report
Our Common Future, published by the United Nations World Commission on
Environment and Development. This report defined sustainable
development as 'humanity's ability... to ensure that [development]
meets the need of the present generation without compromising the
ability of future generations to meet their needs.' The Supreme
Court(11) as well as the Indian government have recognised the
principle of sustainable development as a basis for balancing
ecological imperatives with developmental goals.(12)

(10) Intergenerational equity is among the newest norms of
international environmental law. It can best be understood not so much
as a principle, but rather as an argument in favour of sustainable
economic development and natural resource use. If present generations
continue to consume and deplete resources at unsustainable rates,
future generations will suffer the environmental (and economic)
consequences. It is our children and grandchildren who will be left
without forests (and their carbon retention capacities), without vital
and productive agricultural land and without water suitable for
drinking or sustaining cultivation or aquatic life. Therefore, we must
all undertake to pass on to future generations an environment as
intact as the one we inherited from the previous generation.

Proponents of intergenerational equity maintain that the present
generation has a moral obligation to manage the earth in a manner that
will not jeopardize the aesthetic and economic welfare of the
generations that follow. From this moral premise flow certain
ecological commandments: 'Do not cut down trees faster than they grow
back. Do not farm land at levels, or in a manner, that reduce the
land's regenerative capacity. Do not pollute water at levels that
exceed its natural purification capacity.'

In State of Himachal Pradesh v. Ganesh Wood Products(13) the Supreme
Court recognized the significance of inter-generational equity and
held a government department's approval to establish forest-based
industry to be invalid because 'it is contrary to public interest
involved in preserving forest wealth, maintenance of environment and
ecology and considerations of sustainable growth and inter-
generational equity. After all, the present generation has no right to
deplete all the existing forests and leave nothing for the next and
future generations.'(14)

(11) At the 1982 United Nations Conference on the Law of the Sea
(UNCLOS),(15) developing countries, led by India, articulated the norm
that certain resources, such as the deep seabed, are part of the
common heritage of mankind and must be shared by all nations.

(12) The 1992 Rio de Janeiro Earth Summit articulated the norm of
common but different responsibilities. With regard to global
environmental concerns such as global climate change or stratospheric
ozone layer depletion, all nations have a shared responsibility, but
richer nations are better able than poorer nations to take the
financial and technological measures necessary to shoulder the
responsibility.

E.JUS COGENS, HEALTHFUL ENVIRONMENT, SUSTAINABLE DEVELOPMENT

As mentioned, norms of customary international law evolve through
custom and usage. Not all norms are of equal importance however, some
being accorded the status of fundamental norms. The category of
fundamental norms comes under the doctrine of jus cogens, or the
doctrine of peremptory norms. The 1969 Vienna Convention on the Law of
Treaties(16) serves to clarify the concept in Article 53 as follows:

A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law. For the purposes of
the present Convention, a peremptory norm of general international law
is a norm accepted and recognised by the international community of
States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general
international law having the same character.

The doctrine of jus cogens is extremely limited and extends to only a
handful of norms, the most long-standing of which are the prohibitions
against the slave trade, piracy and genocide. Many scholars also
believe that the norm expressed in Principle 21 of the Stockholm
Convention has risen to jus cogens status. Principle 21 is based on
the Roman maxim, sic utero tuo et alienum non laedas, which roughly
means 'do not behave in a way that hurts your neighbour.' However,
again the question arises, what good does an international peremptory
norm, like an international agreement, achieve?

Consider some of the other norms addressed above, such as the right to
a healthful environment. Is there to be one standard by which all
environments are judged, or is it a relative concept? If cutting down
trees for firewood destroys the environment, but provides life-
sustaining fuel, which right will prevail? Which right should prevail?
How much weight does each of the two rights carry when the concept of
intergenerational equity is introduced?

When considering moral ideals such as the principles of a common
heritage and intergenerational equity, what incentives do countries
have to try to mould their practices to achieve these ideals? How can
countries be better motivated? Is saving the environment for its own
sake going to appeal to the majority of people, or does there have to
be a more direct benefit, like the idea that we may, by destroying an
ecosystem, inadvertently destroy the cure for cancer?

What exactly is 'sustainable development'? What is 'sustainable'?
Could not intelligent and informed people differ over whether
producing more minerals or preserving a landscape is sustainable. If
so, which is more important? And what is 'development'? Factories that
employ thousands, give a country more industry with which to compete
in the world market, but discharge effluents into the water and
produce piles of hazardous waste. Do some countries have more of a
right to development and less of an obligation to ensure
sustainability and vice versa? How much more do industrialised nations
need to develop? Have they not gone far enough? Who is to judge?

F. EXTRACTS FROM VELLORE CASE

At the end of a judicial career, Justice Kuldip Singh of the Supreme
Court issued comprehensive directions to clean up the mess created by
the leather tanneries of Tamil Nadu. In the following excerpt from
this leading case, Justice Singh borrowed international law norms and
applied them to the local milieu.

VELLORE CITIZENS' WELFARE FORUM v. UNION OF INDIA

AIR 1996 SC 2715

KULDIP SINGH, J.:

* * *

The traditional concept that development and ecology are opposed to
each other, is no longer acceptable. 'Sustainable Development' is the
answer. In the International sphere 'Sustainable Development' as a
concept came to be known for the first time in the Stockholm
Declaration of 1972. Thereafter, in 1987 the concept was given a
definite shape by the World Commission on Environment and Development
in its report called 'Our Common Future'. The Commission was chaired
by the then Prime Minister of Norway Ms.G.H.Brundtland and as such the
report is popularly known as "Brundtland Report". In 1991 the World
Conservation Union, United Nations Environment Programme and World
Wide Fund for Nature, jointly came out with a document called 'Caring
for the Earth' which is a strategy for sustainable living. Finally,
came the Earth Summit held in June, 1992 at Rio which saw the largest
gathering of world leaders ever in the history -- deliberating and
chalking out a blue print for the survival of the planet. Among the
tangible achievements of the Rio Conference was the signing of two
conventions, one on biological diversity and another on climate
change. These conventions was signed by 153 nations. The delegates
also approved by consensus three non-binding documents namely, a
Statement on Forestry Principles, a declaration of principles on
environmental policy and development initiatives and Agenda 21, a
programme of action into the next century in areas like poverty,
population and pollution. During the two decades from Stockholm to Rio
'Sustainable Development' has come to be accepted as a viable concept
to eradicate poverty and improve the quality of human life while
living within the carrying capacity of the supporting eco-systems.
'Sustainable Development' as defined by the Brundtland Report means
'development that meets the needs of the present without compromising
the ability of the future generations to meet their own needs'. We
have no hesitation in holding that 'Sustainable Development' as a
balancing concept between ecology and development has been accepted as
a part of the Customary International Law though its salient features
have yet to be finalized by the International Law Jurists.

Some of the salient principles of 'Sustainable Development', culled-
out from Brundtland Report and other international documents, are
inter-generational equity; use and conservation of natural resources;
environmental protection; the precautionary principle; polluter pays
principle; obligation to assist and cooperate, eradication of poverty
and financial assistance to the developing countries. We are, however,
of the view that 'the precautionary principle' and 'the polluter pays'
principle are essential features of 'Sustainable Development'. The
'precautionary principle'-- in the context of the municipal law -
means:

(i) Environmental measures -- by the State Government and the
statutory authorities -- must anticipate, prevent and attack the
causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack
of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.

(iii) The 'Onus of proof' is on the actor or the
developer/industrialist to show that his action is environmentally
benign.

'The polluter pays' principle has been held to be a sound principle by
this Court in Indian Council for Enviro-Legal Action vs. Union of
India (The Bichhri Case), 1996 (3) SCC 212. The Court observed, 'We
are of the opinion that any principle evolved in this behalf should be
simple, practical and suited to the conditions obtaining in this
country'. The Court ruled that 'Once the activity carried on is
hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person by
his activity irrespective of the fact whether he took reasonable care
while carrying on his activity. The rule is premised upon the very
nature of the activity carried on'. Consequently the polluting
industries are 'Absolutely liable to compensate for the harm caused by
them to villagers in the affected area, to the soil and to the
underground water and hence, they are bound to take all necessary
measures to remove sludge and other pollutants lying in the affected
areas'. The 'polluter pays' principle as interpreted by this Court
means that the absolute liability for harm to the environment extends
not only to compensate the victims of pollution but also the cost of
restoring the environmental degradation. [Remedying] the damaged
environment is part of the process of 'Sustainable Development' and as
such [the] polluter is liable to pay the cost to the individual [who]
suffers as well as the cost of reversing the damaged ecology.

[The court then set out the provision of the Constitution as well as
the Water Act, Air Act and Environment (Protection) Act]. In view of
the above mentioned constitutional and statutory provisions we have no
hesitation in holding that the precautionary principle and the
polluter pays principle are part of the environmental law of the
country.

Even otherwise once these principles are accepted as part of the
Customary International Law there would be no difficulty in accepting
them as part of the domestic law. It is almost accepted proposition of
law that the rule of Customary International Law which are not
contrary to the municipal law shall be deemed to have been
incorporated in the domestic law and shall be followed by the Courts
of Law. For support we may refer to Justice H.R.Khanna's opinion in
Addl. Distt. Magistrate Jabalpur vs. Shivakant Shukla (AIR 1976 SC
1207), Jolly George Verghese's case (AIR 1980 SC 470) and Gramophone
Company's case (AIR 1984 SC 667).

The Constitutional and statutory provisions protect a persons right to
fresh air, clean water and pollution free environment, but the source
of the right is the inalienable common law right of clean environment.
[The court proceeded to quote a paragraph from Blackstone's
commentaries on the Laws of England (1876) in respect of 'nuisance'].
Our legal system having been founded on the British Common Law the
right of a person to pollution free environment is a part of the basic
jurisprudence of the land.

G. CONSTITUTIONAL PROVISIONS RELATING TO INDIA'S INTERNATIONAL
OBLIGATIONS

Article 51(c) of the Constitution sets out a Directive Principle
requiring the state to foster respect for international law and treaty
obligations. Article 253 of the Constitution empowers Parliament to
make laws implementing India's international obligations as well as
any decision made at an international conference, association or other
body. Article 253 states : 'Notwithstanding anything in the foregoing
provisions of this Chapter, Parliament has power to make any law for
the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or
any decision made at any international conference, association or
other body'. Entry 13 of the Union List covers : 'Participation in
international conferences, associations and other bodies and
implementing of decisions made thereat.' In view of the broad range of
issues addressed by international conventions, conferences, treaties
and agreements, Article 253 read with Entry 13 apparently gives
Parliament the power to enact laws on virtually any entry contained in
the State List.

Parliament has used its power under Article 253 read with Entry 13 of
the Union List to enact the Air (Prevention and Control of Pollution)
Act of 1981 and the Environment (Protection) Act of 1986.(17)7 The
preambles to both laws state that these Acts were passed to implement
the decisions reached at the United Nations Conference on the Human
Environment held at Stockholm in 1972. At the conference, members of
the United Nations agreed to work to preserve the world's natural
resources, and called on each country to carry out this goal.

The broad language of Article 253 suggests that in the wake of the
Stockholm Conference in 1972, Parliament has the power to legislate on
all matters linked to the preservation of natural resources.
Parliament's use of Article 253 to enact the Air Act and Environment
Act confirms this view.

H. ADOPTING OVERSEAS NORMS

The Supreme Court has occasionally looked at pollution standards
abroad to strengthen local environmental regulation. This is
illustrated by the Motor Vehicle Pollution case filed by Mr. M.C.
Mehta in the Supreme Court.

On April 16, 1999, the Supreme Court targetted diesel vehicles, which
were blamed for more than 90 per cent of the Nitrogen Oxide and
respirable particulate matter (RSPM) in Delhi's air. Noting that the
California Air Resource Board had on 27 August 1998 formally
designated diesel particulate as a toxic air contaminant, and the
amicus curiae's request to suspend the registration of diesel vehicles
in Delhi, the court adjourned the case to April 29, 1999 to consider
submissions on the issue.(18)8

On the adjourned date a bench headed by Chief Justice A. S. Anand
imposed super norms for vehicles registered in the National Capital
Region (NCR), which 'appeared appropriate' to the bench.(19)9 The
court required all private vehicles registered after 1 June 1999 to
conform to Euro I norms and those registered after 1 April 2000 to
meet the Euro II norms. Diesel taxi's were prohibited in the NCR
unless they conformed to Euro II norms. The Euro norms are European
Community standards that have been enforced across Europe. On 13 May
1999,(20)0 the court clarified that what it meant by the 'Euro I
norms' were the India 2000 norms, notified by the Central Government
on 28 August 1997. In other words, the court advanced the statutory
emission norms that were to come into effect on 1 April 2000 to 1 June
1999; and introduced more stringent emission standards (Euro II) with
effect from 1 April 2000. The Euro II norms were re-christened 'Bharat
Stage II' standards by the Central Government and were notified
through the Central Motor Vehicles (Third Amendment) Rules of 2000.

I. GLOBAL ENVIRONMENTAL GROUPS

An emerging trend in India is the impact of Global NGOs in influencing
domestic environmental law and policy. This is not an entirely new
development, since the assistance of say IUCN in helping the local
groups campaigning against the Silent Valley project is well
documented. Greenpeace reports played a role in prompting the Supreme
Court of India to clamp down on the import of hazardous waste into the
country for recycling. It was only pursuant to directions issued by
the Supreme Court in the public interest litigation, Research
Foundation for Science, Technology and Natural Resource Policy v.
Union of India that the import of hazardous waste was banned.
Likewise, a petition has been recently filed in the Calcutta High
Court relating to the adverse environmental impact of PVC. This
petition too relies heavily on a report prepared by Greenpeace. Global
NGOs are attempting to spur governments into adopting local
regulations on the basis of environmental standards and norms that
have been invoked in jurisdictions elsewhere.

1. 1 Reprinted in 31 I.L.M. 818 (1992) and P.Birnie and A.Boyle, Basic
Documents on International Law and Environment 390 (1995).

2. 2 Emphasis supplied. Reprinted in P.Birnie and A.Boyle, id. at 1.

3.

3 The fundamental right to life guaranteed under Article 21 of the
Indian Constitution has been interpreted by the Supreme Court to
include the right to a wholesome environment. Subhash Kumar v. State
of Bihar, AIR 1991 SC 420, 424.

4.

4 The Bichhri Case (Indian Council for Enviro-Legal Action v. Union of
India), AIR 1996 SC 1446; and Vellore Citizens' Welfare Forum v. Union
of India, AIR 1996 SC 2715.

5. 5 Ministry of Environment and Forests, Government of India, Policy
Statement for Abatement of Pollution para 3.3 (26 February 1992).

6. 6 Supra note 4. In A.P. Pollution Control Board v Prof. M.V. Nayudu
AIR 1999 SC 812 the Supreme Court traced the development of the
precautionary principle.

7.

7 The EIA regulations are extensively dealt with in the Large Projects
chapter.

8.

8 Supra note 5, at para 11.1.

9. 9 Ministry of Environment and Forests, Government of India,
National Conservation Strategy and Policy Statement on Environment and
Development para 8.7 (June, 1992).

10. 10 Indian Council for Enviro-Legal Action v Union of India (CRZ
Notification Case) 1996 (5) SCC 281.

11. 11 Vellore Citizens' Welfare Forum v Union of India AIR 1996 SC
2715.

12. 12 Supra note 9, at paras 1.1, 1.3.

13. 13 AIR 1996 SC 149, 163. Also see CRZ Notification Case, Supra
note 10, where the court expressed its concern at the adverse
ecological effects which will have to be borne by future generations.

14. 14 Id.

15. 15 Reprinted in 21 I.L.M. 1261 (1982).

16. 16 Reprinted in 8 I.L.M. 679 (1969).

17. 1 7 S. Jagannath v Union of India (Shrimp Culture Case) AIR 1997
SC 811, 844, 846.

18. 18 1999 (6) SCC 9.

19. 19 1999 (6) SCC 12.

20. 20 1999 (6) SCC 14.

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Rachel's Precaution Reporter offers news, views and practical
examples of the Precautionary Principle, or Foresight Principle, in
action. The Precautionary Principle is a modern way of making
decisions, to minimize harm. Rachel's Precaution Reporter tries to
answer such questions as, Why do we need the precautionary
principle? Who is using precaution? Who is opposing precaution?

We often include attacks on the precautionary principle because we
believe it is essential for advocates of precaution to know what
their adversaries are saying, just as abolitionists in 1830 needed
to know the arguments used by slaveholders.

Rachel's Precaution Reporter is published as often as necessary to
provide readers with up-to-date coverage of the subject.

As you come across stories that illustrate the precautionary
principle -- or the need for the precautionary principle --
please Email them to us at rpr@rachel.org.

Editors:
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Tim Montague - tim@rachel.org

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:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Rachel's Precaution Reporter #40 "Foresight and Precaution, in the News and in the World" Wednesday, May 31, 2006..............Printer-friendly version www.rachel.org -- To make a secure donation, click here. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

Table of Contents...

The State of Precautionary Thinking as Seen by Corporate Advisors
Stratfor, a corporate intelligence service, describes our
upcoming conference in Baltimore and offers its readers a lengthy
opinion about the state of precautionary thinking in the U.S.
San Francisco Is Poised to Ban Toxics in Baby Products
The San Francisco Board of Supervisors has unanimously passed an
ordinance that would ban two particularly nasty chemicals from
children's toys and feeding products. The second reading is June 6
and then it's up to Mayor Gavin Newsome to sign or veto the ordinance.
EPA Union Presidents Invoke Precaution to Protect Children
The presidents of the unions representing scientists and technical
staff of the U.S. Environmental Protection Agency (EPA) have written
to EPA Administrator Stephen L. Johnson urging him to adopt a
precautionary approach to children's exposure to pesticides when
setting allowable exposures under the the Food Quality Protection Act.
This is not the same as a blanket endorsement of the precautionary
principle, but it's a step in the right direction.
Free Trade 'Madness' Threatens Wild Fish Stocks in Scotland
Since the 1937 Diseases of Fish Act, the import of live salmon into
the UK [United Kingdom] has been virtually impossible, but this Act is
now subservient to the EU's [European Union's] overriding founding
principle of free trade between member states... "It is simply
unacceptable for free trade dogma and profit motives to take
precedence over the integrity of the health of our native fish stocks.
Basic precautionary principles must be upheld."
Precaution in International Environmental Law: A View from India
"Another new norm of international environment law is the
precautionary principle. This is basically a duty to foresee and
assess environmental risks, to warn potential victims of such risks
and to behave in ways that prevent or mitigate such risks."

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From: Stratfor: Public Policy Intelligence Report, May 25, 2006
[Printer-friendly version]

PRECAUTIONARY POLICY: LEAVING THE 'PRECAUTIONARY PRINCIPLE' BEHIND

By Bart Mongoven

Leading advocates of chemical policy reform will meet in Baltimore in
early June to discuss progress made in changing how the United States
regulates chemicals, genetically modified organisms (GMOs) and
products of nanotechnology. The title of the conference, "Taking
Precautionary Action," suggests that these activists will meet as
advocates not just of regulatory policy reform, but as advocates of
the precautionary principle.

The word choice is interesting, because the "precautionary principle"
-- from which the conference title derives -- is no longer at the
center of regulatory reform efforts. Nevertheless, advocates of the
principle who attend the conference will have a great deal to
celebrate. The precautionary principle -- which advocates a certain
forward-looking decision-making ethic for regulators -- is taking hold
in commerce, but the way in which it is emerging is quite different
from that envisioned by the most ardent supporters of the principle.
Ultimately, the conference's title and agenda suggest that the goals
of those who support the precautionary principle have changed markedly
in the past few years and -- as a result -- are poised to become far
more effective in the United States than ever before.

The significance of the advocates' discussion ultimately does not lie
in questions about who is winning tactical debates or even whether the
precautionary principle will survive as a regulatory tool. The
important question is, instead, how far activists will be able to push
more traditional, familiar types of regulatory reform while still
clinging to the rhetoric of the precautionary principle debate.

Precaution: The Regulatory Context

In its pure form, the precautionary principle demands that a practice
or product should not be permitted by regulators unless it has been
proven not to do harm. Ten years ago, this argument was presented in
highly moral terms. Its advocates claimed that creators and producers
of goods in commerce should know beyond doubt that what they are
selling is safe -- and further, that it is immoral for them to place
consumers in harm's way or treat their customers as guinea pigs or
canaries in coal mines.

Though this sentiment was, framed in those terms, unobjectionable,
turning that into a foundation for regulatory decision-making
processes has proven difficult. Advocates framed the principle as the
antithesis of risk assessment in determining how chemicals in
commerce, nanotechnologies, and GMOs should be regulated. At that
point, the debate stalled.

At a basic level, the precautionary principle sounds like common sense
to most people, who are inculcated from an early age with admonitions
to "look before you leap" or that it is "better to be safe than
sorry." The practice is invoked, at some level, in people's daily
lives. However, everyone's threshold of risk tolerance differs: Some
people refuse to fly; others not only fly, but sky dive. In the
regulatory context, this means that it is impossible to enforce a
precautionary principle for an entire society without severely
curtailing human action. This has been a perpetual problem with the
principle as a regulatory tool.

To make it easier for the public to understand their goals, advocates
have defined four elements of the precautionary principle:

-- Taking precautionary action before cause and effect relationships
are established scientifically, if there are concerns that an activity
might pose a threat to health or the environment.

-- Placing the burden of proof on the proponent of an activity
(usually industry) in determining whether an activity or product is
harmful.

-- Demanding "open, informed, and democratic" decision making
structures for regulators, and thus placing approval of an activity
under a political process.

-- Requiring alternatives assessment -- that is, shifting the central
organizing principle of policymaking away from quantifying and
managing risk, and toward minimizing risk to the greatest extent
possible. Rather than asking what level of pollution is safe or
acceptable, activists reason, society should constantly strive to find
the least hazardous or dangerous alternatives available for achieving
the same goals, and industry should be required to use them.

In early attempts to apply the principle to regulatory decision-
making, advocates of the precautionary principle often got hung up on
the first element above. The tendency was to argue that an activity or
product should not be allowed until it had been proven not to cause
harm. The problem was that, despite centuries of careful thought and
study, proving a negative remains impossible, so applying this strict
standard was never a credible approach. And parsing the issue -- for
instance, defining whether a practice or substance gave rise to
"concerns" -- proved too vague for the precautionary principle to
withstand scrutiny from legislators or regulators.

In response to early failures, most precautionary principle advocates
simplified the issue into one that simply demanded a reversal in the
burden of proof standard. In order to win regulatory approval, the
party that wants to make something new must convincingly show that the
product, process or practice is not harmful. Advocates compare the
precautionary principle in this form to the reversal of the burden of
proof that drug companies face in phased trials.

While this makes sense in a vacuum, it has a clear stifling effect in
the regulatory context. Drug companies invest millions of dollars and
tremendous man-hours in convincing Federal Drug administration boards
that a proposed drug is safe and effective. Now imagine having to go
through a similar test for every new cleaning solution, every new
nanoparticle created, every new genetic manipulation. The process
would be clumsy and wasteful (and if drug approval is any model, a
streamlined system likely would be more prone to mistakes -- allowing
unsafe products onto the market while banning safe ones).

Policy reform advocates have called for regulators to focus on those
substances that are most heavily used in commerce and those with
characteristics that make them inherently more likely to be
problematic. Demanding that some products and processes be proven safe
-- but not forcing the issue for others -- is fundamentally at odds
with the application of the "precautionary principle."

And this is where things get impossibly fuzzy. If the precautionary
principle is based on the belief that the only moral course of action
is to force the maker of a product to prove the product safe, invoking
it occasionally is not enough. Practicing only half of a precautionary
principle is not precautionary. Half a precautionary principle means
either invoking an ethic with no follow-through, or more
interestingly, the dramatic politicization of regulatory decision-
making -- placing the advance of science and technology in a
completely political forum.

Examples of both problems can be found in Europe, which has not found
a solution to either. Almost all E.U. laws or regulations drafted this
decade invoke the precautionary principle, but it is seldom used as a
decision-making tool. The principle has been invoked in contexts like
the emerging chemical policy reform known as REACH, under which the
stringency of testing standards for chemicals likely will be
correlated to the volume of their usage in commerce. This is a logical
policy but does not, of course, rise to the level of the precautionary
principle as defined above.

Europe also is grappling with the politicization of science and
technology as a result of the precautionary principle, which was
invoked for more than a decade in the battle over whether Europe would
import GMOs. There was no clearly risk-based reason to exclude GMOs
from the market, so regulators invoked the principle to justify the
E.U.'s opposition to the imports. The E.U. was forced to change its
law after the World Trade Organization judged the use of the principle
to be a non-tariff barrier to trade. Nevertheless, the appeal of the
precautionary principle can still be seen among the many European
consumers who were sold on the notion that GMOs actually posed a
danger to their health.

Precautionary Elements: Coming Into Practice

With de jure adoption of the precautionary principle making little
headway, it is interesting to see the various ways in which the
principle is being used. What is emerging in the United States is a
new approach to risk and risk policy, one that does not demand purity
or portray risk as morally repugnant. Instead, some of the elements of
the four-part definition of the precautionary principle are coming to
the fore in their own right. This does not necessarily add up to
regulatory adoption of the precautionary principle, but it does signal
that decision-makers are being pushed away from pure risk assessment
and reliance on current science, and that a new decision-making
environment is being ushered in.

The most powerful engine of precautionary thought right now is the
advocacy of "alternatives assessment." This is seen both in
shareholder campaigns and in pressure toward new security approaches
for chemical, nuclear and other types of industrial facilities.

Crucial issues are becoming evident in the move toward creation of a
"chemical risk" argument. Chemical risk holds that science (especially
toxicology) is changing rapidly and new things are being learned. In
this environment, consumer product companies -- the downstream
customers of businesses involved in chemicals, genetic modification
and nanotechnology -- run the risk that the products they are buying
now eventually could be found to be contributing to health problems.
Such discoveries could lead to lawsuits, or to rapid phase-outs of the
hazardous substances -- leaving the downstream customers with
significant challenges in reformulating their own products.

Given these possibilities, activists increasingly are appealing to
consumer product companies (currently through their shareholders) to
examine the substances they use and to assess which of them could in
the future become controversial or problematic. The argument is that a
smart company should immediately begin looking for alternatives to
these substances, and should phase out the troublesome materials as
quickly as possible. In practice, these phaseouts would not be based
on current risk assessments or on any findings of danger. The
substance or practice would be phased out simply because it is
controversial. If this trend wins support, substances that are
politically unpopular will be phased out with increasing frequency --
and one important element of the precautionary principle, alternatives
assessment, will be in de facto operation.

The second area in which the precautionary principle is making strides
is in the arena of facility security, and -- again -- it is through
the alternatives assessment concept. In the wake of the 9/11 attacks,
Americans began assessing their security from a terrorist's
perspective and identifying potential risks. Chemical and nuclear
plants have been seen by many as potentially attractive targets for
terrorists.

Activists who had long been supportive of the precautionary principle
saw an opportunity in the chemicals industry. They began to demand not
simply that chemical manufacturing facilities should improve their
security measures and safeguards, but that the companies should begin
using "inherently safer technologies" as well. This approach is the
production-side corollary to alternatives assessment. In effect,
engineers are being asked to assess the potential risks associated
with the operations of a chemical or nuclear facility and to determine
what alternative means of production are available that would reduce
the risks to the local populace if the facility were attacked by
terrorists.

This kind of regimen is certainly more realistic for chemical and
manufacturing facilities than it is for nuclear power plants. The
alternatives assessment argument has been most effective in the
context of municipal water systems, which are often located in
populated areas and which naturally keep on hand significant stores of
volatile chemicals (usually chlorine). Similarly, facilities that use
ammonia in the creation of fertilizer fall into this group, as do the
rail companies that transport chemicals like chlorine and ammonia.

Conclusion

The crucial question that arises is whether the meaning of the
precautionary principle has undergone a fundamental shift in the last
five years. In the 1990s, the term was used in the United States as
the basis for a moral appeal to change the way government regulates
products. Today, it is invoked as a social ethic and as a symbolic
goal, but its advocates generally promote the principle's adoption
only in a symbolic sense. This is a critical point.

When advocates of the precautionary principle meet next month in
Maryland, it will be with the stated goal of assessing local, state,
and federal governments' progress toward implementing the principle.
But judging from the conference agenda, participants instead will be
discussing regulatory changes within a risk-based framework. They will
debate the degree to which Europe's REACH policy might be emulated in
the United States and the ways in which a proliferation of state laws
ultimately can be used to pressure the federal government for
fundamental regulatory reform. The pure precautionary principle --
reverse burden of proof, precautionary action, alternatives assessment
-- will not feature as prominently at the conference as will
discussions of regulatory reform.

If the precautionary principle remains synonymous with "regulatory
restructuring" -- rather than with "proving a substance or activity is
not harmful" -- advocates of regulatory reforms have a genuine chance
of succeeding. They will be speaking in terms that can be implemented,
and they will still be appealing to the public with a defensible moral
argument.

(c) 2006 Strategic Forecasting, Inc.

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From: Environment California, May 25, 2006
[Printer-friendly version]

SAN FRANCISCO IS POISED TO BAN TOXICS IN BABY PRODUCTS

Would be first city in the nation to do so.

SAN FRANCISCO, CA -- The Stop Toxic Toys bill, which would ban two
toxic chemicals -- phthalates and bisphenol-A -- from children's toys
and feeding products, passed the San Francisco Board of Supervisors on
Tuesday, May 23rd, in an 11-0 vote.

Phthalates (pronounced thay-lates) often used in soft PVC plastic
children's toys, have been linked to reproductive birth defects, early
onset of puberty, asthma, and reduced testosterone in boys. If signed
into law, San Francisco would become the first city in the country to
ban these chemicals. The European Union and at least twelve countries
have passed bans or restrictions on the use of phthalates in products
for small children.

Bisphenol-A, a known hormone disruptor, is a common ingredient in hard
plastic baby bottles and has been shown to leach out of the plastic,
especially in older bottles. Even at very low doses it has been linked
to obesity, early onset of puberty, behavioral problems, reduced sperm
production, increased cancer cell growth, and impaired immune
function.

"Many parents would be shocked to learn that the plastic baby bottle
they're giving their child could damage their health. When you look at
the science behind these chemicals, there is no question that they
ought to be banned from baby products," said Supervisor Fiona Ma, the
author of the San Francisco bill.

"We cannot allow toxic chemicals to be used in products for young
children, especially those specifically designed to be put into their
mouths," said Rachel Gibson, Staff Attorney for Environment
California
. Environment California was the sponsor of California
legislation -- AB 319 (Chan) -- that would have imposed a statewide
restriction on the use of phthalates and bisphenol-A in children's
toys and feeding products. "The California legislature failed to take
appropriate action this year when it had the opportunity to do so. We
applaud the San Francisco Board of Supervisors for taking this
significant step to protect our most vulnerable population."

Supervisors Ma, Maxwell, Alioto-Pier, Ammiano, and McGoldrick co-
authored the San Francisco Stop Toxic Toys bill. The final reading of
the bill is June 6, after which it goes to Mayor Gavin Newsom for his
signature or veto.

###

Rachel L. Gibson
Environmental Health Advocate & Staff Attorney
Environment California
369 Broadway, Suite 200
San Francisco, CA 94133
(415) 622-0086 x304
(415) 622-0016 (fax)
rgibson@environmentcalifornia.org
www.environmentcalifornia.org

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From: Public Employees for Environmental Responsibility, May 24, 2006
[Printer-friendly version]

EPA UNION PRESIDENTS INVOKE PRECAUTION TO PROTECT CHILDREN

Stephen L. Johnson, Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

Dear Administrator Johnson:

We Local Presidents of EPA Unions representing scientists, risk
managers, and related staff, are writing to express our concern that
EPA could betray the public trust by violating the intention of the
Food Quality Protection Act (FQPA) to protect the Nation's infants,
children, and susceptible subpopulations, unless the Agency adheres to
principles of scientific integrity and sound science in the pesticide
tolerance reassessments it is undertaking.

There are more than 20 neurotoxic organophosphate (OP) and carbamate
pesticides scheduled for final tolerance decisions by EPA no later
than August 3, 2006, as required by the FQPA. During the 1990s, the
Agency reached partial cancellation agreements with the registrants of
+certain OP pesticides, such as chlorpyrifos, methyl parathion, and
diazinon, based on compelling information that these neurotoxic
pesticides damage the developing nervous system of fetuses, infants
and children (an effect known as "developmental neurotoxicity").

Those actions were consistent with the overarching precautionary
intent of FQPA which requires that, in the absence of reliable data on
toxicity or exposure, the Agency must ensure an adequate margin of
safety for the health of the nation's infants, children, and
susceptible subpopulations through the use of uncertainty factors in
relevant analysis.

Accordingly, as EPA approaches the August 2006 statutory deadline for
the determination of final tolerances for the remaining OP and
carbamate pesticides, we urge the Agency to adhere to its principles
of scientific integrity and employ the precautionary approach intended
by the FQPA in assessing the cumulative and aggregate exposure and
risk from the uses of these neurotoxicants. This approach --
compliance with the FQPA and our principles of scientific integrity --
is the only way to remain faithful to the public trust and ensure that
our children will not be exposed to pesticides that may permanently
damage their brains and nervous systems.

The partial cancellation agreements of the 1990's mostly addressed
residential exposures, but did not adequately consider continued
exposure through foods eaten. As risk assessors, we continue to be
troubled by the Agency's failure to adequately consider exposure to
neurotoxic pesticides by infants and children who commonly enter
fields treated with these pesticides while accompanying their parents
employed to perform post-application tasks. The children of
farmworkers, living near treated fields, are also repeatedly exposed
through pesticide drift onto outdoor play areas and through exposure
to pesticide residues on their parents' hair, skin, and clothing.

Additionally, we are concerned that unborn fetuses may also be exposed
to these neurotoxicants when pregnant women are employed to handle
(mix, load, apply) these pesticides or are employed to enter treated
areas to perform hand labor tasks following pesticide applications.

The Agency's own Scientific Advisory Panel (SAP) has expressed concern
that the Pesticide Program's current approaches may not be
sufficiently conservative, may underestimate the risks to infants and
children, and do not adequately identify individuals that may be
inherently sensitive to neurotoxicants. (May 25, 1999 SAP meeting)

We are confident that you share our sense of urgency about taking the
necessary actions to protect the health of our Nation's children. As
you are aware, in August 1999, EPA informed the public that it was
issuing data call-in notices to pesticide registrants of
cholinesterase-inhibiting OP pesticides and requiring submission of
data on developmental neurotoxicity.

We are concerned that the Agency has not, consistent with its
principles of scientific integrity and sound science, adequately
summarized or drawn conclusions about the developmental neurotoxicity
data received from pesticide registrants. Our colleagues within the
Agency, including EPA's Inspector General (EPA IG), believe that it
would be premature to conclude that there is a complete and reliable
database on developmental neurotoxicity of pesticides (see Attachment)
upon which to base any final tolerance reassessment decisions as
required by the FQPA. Consequently, EPA's risk assessments cannot
state with confidence the degree to which any exposure of a fetus,
infant or child to a pesticide will or will not adversely affect their
neurological development.

As you also know, in the absence of a robust body of data, FQPA
requires EPA to use an additional 10-fold safety factor in its risk
assessments when setting pesticide tolerances. Thus both statutory
language and sound science require that the Agency continue to retain
the 10-fold safety factor as a precaution when reassessing the
tolerances for the remaining OP and carbamate pesticides given the
existing uncertainty about developmental neurotoxicity.

Many influential proponents of agriculture have repeatedly expressed
their concerns to EPA about properly coordinating with agricultural
stakeholders, the U.S. Department of Agriculture (USDA), and producers
when implementing FQPA. It appears that the Agency has inadvertently
taken this to mean that the concerns of agriculture and the pesticide
industry come before our responsibility to protect the health of our
Nation's citizens. We are concerned that the Agency has lost sight of
its regulatory responsibilities in trying to reach consensus with
those that it regulates, and the result is that the integrity of the
science upon which Agency decisions are based has been compromised.

Our colleagues in the Pesticide Program feel besieged by political
pressure exerted by Agency officials perceived to be too closely
aligned with the pesticide industry and former EPA officials now
representing the pesticide and agricultural community; and by the USDA
through their Office of Pest Management Policy. Equally alarming is
the belief among managers in the Pesticide and Toxics Programs that
regulatory decisions should only be made after reaching full consensus
with the regulated pesticide and chemicals industry.

In the rush to meet the August 2006 FQPA statutory deadline, many
steps in the risk assessment and risk management process are being
abbreviated or eliminated in violation of the principles of scientific
integrity and objectivity by which we as public servants are bound.
Congress specifically asked EPA to take reasonable action to reduce
the risk of pesticides for infants and children where existing uses
posed a concern. We should honor the charge from Congress to protect
the public health, unencumbered by political influences; therefore, at
this time, we do not believe that the Agency should make any final
tolerance reassessment decisions.

We therefore request the following:

1. Where data are insufficient for decision-making, that you make
decisions based on the Precautionary Principle and add appropriate
uncertainty factors to protect human health in conformity with the
FQPA and our principles of scientific integrity.

2. Where developmental neurotoxicity studies are absent, it is
imperative that the Agency continue to retain the 10-fold safety
factor -- if not increase it -- as a precaution, when making final
reregistration decisions for OP and carbamate pesticides.

3. That EPA issue an interim reregistration decision mandating that
maximum protections -- engineering controls for handlers and longer
re-entry intervals for postapplication labor- be put into place for
agricultural uses of these pesticides; where this is not feasible,
cancel these registrations, as EPA promised before. EPA issued PR
Notice 2000-9
in 2000 to this effect (Worker Risk Mitigation for
Organophosphate Pesticides) but then never carried through on this.

In its response to comments on this PR notice, EPA stated that the
Agency will seek cancellation of uses if available risk mitigation
measures, such as engineering controls and extended REI's, do not
provide an adequate margin of safety and the risks outweigh the
benefits
.

Six years is an unacceptably long wait. It is time to act now, and act
responsibly.

4. That you take steps to ensure that the Agency consider non-
pesticide chemicals -- industrial and commercial -- in the same manner
as pesticides with regard to their potential impact on the health of
our nation's children.

Administrator Johnson, we ask that you adhere to your pledge to
protect the public health of our nation's infants and children, ensure
that final tolerance reassessment decisions are unbiased by outside
political influences, and that any decisions be based on a transparent
and complete database in conformity with the law, sound science, and
our principles of scientific integrity. Until EPA can state with
scientific confidence that these pesticides will not harm the
neurological development of our nation's born and unborn children,
there is no justification to continue to approve the use of the
remaining OP and carbamate pesticides.

The undersigned take our civil service oath very seriously. We believe
that it would be a perversion of the constitutional process and
betrayal of the public trust for the agency to fail to adhere to the
mandates of the FQPA. We recognize that under the Constitution our
role is only to provide the above advice to you, while your role is to
faithfully execute the laws entrusted to your administration. We
believe that by providing this advice in the strongest possible terms
we are fulfilling our duty and helping you to fulfill yours.

Very sincerely yours,

/S/

Dwight A. Welch, President,

NTEU Chapter 280, Washington, DC

/S/

Dave Christenson, President

AFGE Local 3607, Denver

/S/

Larry Penley, President

NTEU Chapter 279, Cincinnati

/S/

Patrick Chan, President

NTEU Chapter 295, San Francisco

/S/

Paul Scoggins, President

AFGE Local 1003, Dallas

/S/

Steve Shapiro, President

AFGE Local 3331, Washington, DC

/S/

Mark Coryell, President

AFGE Local 3907, Ann Arbor

/S/

Wendell Smith, President

ESC EPA -- Unit San Francisco

/S/

John O'Grady, President

AFGE Local 704, Chicago

Attachment 1

Examples of support for the conclusion that EPA cannot yet ensure that
fetuses, infants and children will not suffer developmental
neurotoxicity from exposure to neurotoxic pesticides:

(1) The January 10, 2006 Office of Inspector General Report,
"Opportunities to Improve Data Quality and Children's Health through
the Food Quality Protection Act" states that:

EPA's required pesticide testing does not include sufficient
evaluation of behavior, learning or memory in developing animals.

EPA has no standard evaluation procedure for interpreting results from
DNT tests.

EPA has not yet summarized or drawn conclusions about DNT which it has
collected for pesticides.

(2) Not all scientists are in agreement with EPA that developmental
effects of the OP pesticide chlorpyrifos occur only at doses above
those which cause cholinesterase inhibition, or even that they occur
exclusively through the mechanism of cholinesterase inhibition. (see
for example: Cholinergic systems in brain development and disruption
by neurotoxicants: nicotine, environmental tobacco smoke,
organophosphates, Toxicol. Pharmacol.198: 132-151 (2004; Guidelines
for developmental neurotoxicity and their impact on organophosphate
pesticides: a personal view from an academic perspective,

Neurotoxicology 25(4): 631-640 (2004).

(3) EPA has data demonstrating that the immature are more sensitive to
the OP pesticide malathion than adults (see for example Developmental
Neurotoxicity Study in Rats, August 22, 2002. Memorandum. MRID
45646401; and Special Study, Effects on Cholinesterase Inhibition in
Adult & Juvenile CD Rats, Companion Study to Developmental
Neurotoxicity Study 870.6300., Tox Review No. 0050550, MRID No.
45566201).

(4) EPA has also received, but has not released for review by the SAP
or external parties, data suggestive of direct effects of malathion on
brain structure concurrent with cholinesterase inhibition and changes
in behavior (personal communication, Dr. Brian Dementi; see also
paragraphs #8, 9,11,12,13, and 17 of the June 20, 2005 letter to you
from Dr. Dementi in which he advised you of these concerns).

(5) More data are accumulating indicating differential sensitivity to
other OP pesticides greater than the 10-fold safety factor required by
FQPA (see for example Paraoxonase polymorphisms, haplotypes and enzyme
activity in Latino mothers and newborns, Pharmacogenetics and Genomics
16: 183-190 (2006).

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From: FishUpdate.com, May 30, 2006
[Printer-friendly version]

FREE TRADE 'MADNESS' THREATENS WILD FISH STOCKS IN SCOTLAND

SCOTLAND'S wild fish interests are launching a major campaign to
expose the serious risk of devastating and deadly fish diseases being
introduced to the country through the import of live fish. The
Association of Salmon Fishery Boards and the Rivers and Fisheries
Trusts of Scotland claim the spread of diseases and parasites in both
wild and farmed fish is almost always due to the movement of live
fish.

Against a background of some 30 million salmon eggs being imported
from Norway to Scotland this year, there is mounting pressure from
some Norwegian-owned salmon farming companies for them to be permitted
to transfer juvenile salmon to their sites in the west Highlands and
the Hebrides. This, the organisations claim, is despite the fact that
there is more than adequate capacity within Scotland's salmon smolt
producing companies to meet the demands of the industry for juvenile
fish -- to the continuing benefit of employment in remote areas of
Scotland. In addition some of Scotland's indigenous salmon farmers are
fundamentally opposed to live fish imports.

Trade in live fish from Norway is currently prohibited under EU
regulations until certain standards within Norway have been achieved
and disease free zones have been approved. However it is understood
that these conditions could soon be met -- effectively giving the
green
light to trade in live salmon from Norway. This is despite the fact
that Norway currently has a much lower fish health status than the UK
where the benefits of island status have long been reinforced by a
history of strict fish health controls. Since the 1937 Diseases of
Fish Act, the import of live salmon into the UK has been virtually
impossible, but this Act is now subservient to the EU's overriding
founding principle of free trade between member states and EFTA
countries.

Andrew Wallace, Director of the Association of Salmon Fishery Boards
and Policy Director of the Rivers and Fisheries Trusts of Scotland,
explained: "Norway's dubious history of disease prevention and control
is ringing serious alarm bells for both Scottish wild fisheries
managers and also Scottish fish farmers. Diseases such as Gyrodactylus
salaris and Infectious Salmon Anaemia (ISA) are endemic in both
Norwegian farmed and wild salmon populations with nine outbreaks of
ISA alone in the last year. The trade in live fish is recognised as
being the principal means by which these diseases are spread. There
therefore can be no doubt that any increase in the trade of live fish
will expose the UK's unique fish health position to markedly increased
and unacceptable risks. Norway's poor record on disease control was
highlighted in the recent EFTA Surveillance Authority report, which
does nothing to reassure us that Norway has adequate mechanisms to
prevent the export of serious fish diseases to the UK".

Mr Wallace continued: "Live fish imports could have disastrous
implications for the conservation status of many of our rivers, 17 of
which are specifically designated under the EC Habitats and Species
Directive, and also for Scotland's salmon angling industry, which is
worth some £80 million a year. We are particularly concerned
about the
possible introduction of Gyrodactylus salaris (Gs). This is perhaps as
serious a disease for salmon health and stocks as Foot and Mouth is
for farm livestock -- with one critical difference: once established,
Gs could be impossible to eradicate".

Paul Knight, Executive Director of the Salmon and Trout Association,
commented: "Live fish imports are completely unnecessary and no matter
what safeguards are put in place, they can never be absolute. Just one
Gs-infected fish could spell disaster from which recovery may well be
impossible. It is simply unacceptable for free trade dogma and profit
motives to take precedence over the integrity of the health of our
native fish stocks. Basic precautionary principles must be upheld".
The campaign against live fish imports has been set in motion by the
extensive distribution of a detailed letter, which has been sent to
selected MEPs, all MSPs, the DGs of relevant EU Directorates (SANCO /
Environment / Fisheries), Scottish Ministers, DEFRA, SEERAD and SNH.
The letter is signed by the Association of Salmon Fishery Boards and
the Rivers and Fisheries Trusts of Scotland and countersigned by every
significant fisheries management and angling body in Scotland together
with many others elsewhere in the UK.

Fishupdate.com (C) 2006

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From: National Law Schoool of India, Jul. 12, 2002
[Printer-friendly version]

PRECAUTION IN INTERNATIONAL ENVIRONMENTAL LAW: A VIEW FROM INDIA

By Shyam Divan

A. INTRODUCTION

In international law, a distinction is often made between hard and
soft law. Hard international law generally refers to agreements or
principles that are directly enforceable by a national or
international body. Soft international law refers to agreements or
principles that are meant to influence individual nations to respect
certain norms or incorporate them into national law. Although these
agreements sometimes oblige countries to adopt implementing
legislation, they are not usually enforceable on their own in a court.

If a treaty or convention does not specify an international forum that
has subject matter jurisdiction, often the only place to bring a suit
with respect to that treaty is in the member state's domestic court
system. This presents at least two additional hurdles. If the member
state being sued does not have domestic implementing legislation in
place to hear the dispute, there will be no forum available. Even in
the event that the domestic legislation provides for such suits, since
the judges who decide the case are residents of the country against
which it is brought, potential conflicts of interest arise.

Only nations are bound by treaties and conventions. In international
forums, such as the International Court of Justice (ICJ), countries
must consent to being sued. Thus, it is often impossible to sue a
country. The final question in the jurisdictional arena is who may
bring a suit. Often, only countries may sue countries. Individual
citizens and non-governmental organisations (NGOs) cannot. This has
huge repercussions. First, the environmental harm must be large and
notorious for a country to notice. Second, for a country to have a
stake in the outcome of the subject matter, some harm may have to
cross the borders of the violating country into the country that is
suing. Finally, even if transboundary harm does exist, the issue of
causation, especially in the environmental field, is often impossible
to prove with any certainty.

The enforcement issue is one where advocates for a safer environment
often find themselves stymied. Even if a treaty or convention provides
for specific substantive measures to be taken by a country (many
treaties merely provide 'frameworks'), specifies a forum for dispute
resolution and authorizes sanctions for non-compliance, international
law remains largely unenforceable. A country cannot be forced to do
what it is not willing to do. One can sanction the country, order
damages, restrict trade, or, most frequently, publicize non-
compliance. But beyond that, if a country will not comply, there is
very little to be done.

International institutions are generally not responsible for directly
implementing and enforcing international environmental law, but they
often play important monitoring, informational and diplomatic roles.
For example, the 1992 Convention on the Conservation of Biological
Diversity (Biodiversity Convention)(1) created a new international
body, the Committee on Sustainable Development (CSD). The CSD lacks
the power to bring enforcement actions against either governments or
private parties, but it plays a role in implementing the Biodiversity
Convention. The CSD helps monitor national compliance efforts by
requiring member nations to submit annual reports. Through its
meetings and publications, the CSD also provides a forum to discuss
and debate issues associated with global protection of biological
diversity and forests.

B. SOME CORE ISSUES RELATING TO INTERNATIONAL ENVIRONMENTAL LAW

Consider for a moment why any law is enacted -- domestically or
internationally. Some would maintain that it is a moral statement
about behaviour that a society cannot tolerate. Some would argue that
certain conduct is outlawed to deter that conduct, which is why we
also attach a penalty. Some would argue, especially in light of the
inefficiencies in enforcement, that laws socialize society's members
to behave in a certain way by defining a code.

What is the purpose of international environmental law -- is it a
moral statement, a deterrence, or a socializing tool? If it is a moral
statement, which many of the framework conventions seem to be, is it
merely aspirational? Do we honestly believe that all nations will
achieve all the ideals expressed in all the agreements? Or do we, as a
global community, simply like to think of ourselves as the kind of
people who believe in these things? If it is intended as deterrence,
why are there not more international forums for dispute resolution,
more international bodies empowered to enforce agreements, more
substantive requirements, and more 'hard law' self-executing
agreements? If there were, would any nation sign them? If it is
intended as a socialization technique, is it working? Are nations more
environmentally aware?

If ultimately all international environmental law is unenforceable,
what good is it? Does it accomplish anything to find a country out of
compliance with a treaty? What about publicity? What if the economic
benefits of a project such as the Narmada Valley Project, are believed
by government officials to outweigh the negative effects of the
publicity?

The practice of relying on domestic implementing legislation to
enforce international environmental agreements leave state parties in
the position of having different obligations under the same treaty,
depending on how their legislative, executive and judicial bodies
interpret and implement the treaty. Is this fair? What about the costs
and administrative burdens that are associated with creating and
enforcing legislation? Does this put richer countries in a better
position to comply with treaties?

What is the purpose of the informational roles of international
institutions? Will more knowledge about the global environment and our
impacts on it lead to better compliance? Or will so many new issues
lead to non-compliance due to uncertainty? If it appears to the
average citizen that virtually everything she does has a negative
environmental impact, will she not cease to try to change any
behaviour?

C. INDIA'S INTERNATIONAL OBLIGATIONS

India has obligations under numerous international treaties and
agreements that relate to environmental issues. As a contracting
party, India must have ratified a treaty, that is, by adopting it as
national law before it came into force, or by acceding to it after it
has come into force. For a treaty to enter into force, the requisite
number of countries must ratify the treaty, which then has the force
of international law.

Specific obligations under any treaty vary, depending on the treaty
itself. The nature and degree of compliance and implementation depend
on a number of factors, among them: (1) the capabilities and staff of
an international institution charged with coordinating national
compliance efforts, if there is one; (2) the willingness of other
state parties to enforce or comply with the treaty; (3) the political
agenda of the government and popular support; (4) trade and diplomatic
pressures brought to bear by other countries; and (5) sometimes,
judicial or NGO involvement through court cases and publicity.

INDIA'S TREATY OBLIGATIONS

1. The Antarctic Treaty (Washington, 1959) 402 UNTS 71. Entered into
force 23 June 1961. India ratified with qualifications, 19 August
1983.

2. Convention on Wetlands of International Importance, Especially as
Waterfowl Habitat (Ramsar, 1971). 11 I.L.M. 963 (1972). Entered into
force 21 December 1975. India acceeded, October 1, 1981.

3. Convention Concerning the Protection of the World Cultural and
Natural Heritage (Paris, 1972). 11 I.L.M. 1358 (1972). Entered into
force 17 December 1975. India signed, 16 November 1972.

4. Convention on International Trade in Endangered Species of Wild
Fauna and Flora (Washington, 1973) 12 I.L.M. 1055 (1973). Entered into
force 1 July 1975. India signed, 9 July 9 1974; ratified 20 July 1976.

5. Protocol of 1978 Relating to the International Convention for the
Prevention of Pollution from Ships, 1973 (MARPOL) (London, 1978).
Entered into force 2 October 1983. India ratified with qualifications,
24 September 1986.

6. Convention on the Conservation of Migratory Species of Wild Animals
(Bonn, 1979) 19 I.L.M. 15 (1980). Entered into force 1 November 1983.
India signed, 23 June 1979; ratified 4 May 1982.

7. Convention on the Conservation of Antarctic Marine Living Resources
(Canberra, 1980). 19 I.L.M. 841 (1980). Entered into force 7 April
1982. India ratified, 17 June 1985.

8. United Nations Convention on the Law of the Sea (Montego Bay,
1982). 21 I.L.M. 1261 (1982). Entered into force 16 November 1994.
India signed, 10 December 1982.

9. Convention for the Protection of the Ozone Layer (Vienna, 1985). 26
I.L.M. 1529 (1987). Entered into force 22 September 1988. India
ratified, 18 March 1991.

10. Protocol on Substances That Deplete the Ozone Layer (Montreal,
1987). 26 I.L.M. 1550 (1987). Entered into force 1 January 1989. India
acceded, 19 June 1992.

11. Amendments to the Montreal Protocol on Substances That Deplete the
Ozone Layer (London, 1990). 30 I.L.M. 541 (1991). Entered into force
10 August 1992. India acceded, 19 June 1992.

12. Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal (Basel, 1989). 28 I.L.M. 657 (1989). Entered
into force 5 May 1992. India signed, 5 March 1990; ratified 24 June
1992.

13. United Nations Framework Convention on Climate Change (Rio de
Janeiro, 1992). 31 I.L.M. 849 (1992). Entered into force 21 March
1994. India signed, 10 June 1992; ratified 1 November 1993.

14. Convention on Biological Diversity (Rio de Janeiro, 1992). 31
I.L.M. 818 (1992). Entered into force 29 December 1993. India signed,
5 June 1992; ratified 18 February 1994.

15. Convention to Combat Desertification in Those Countries
Experiencing Serious Drought and/or Desertification, Particularly in
Africa (Paris, 1994). 33 I.L.M 1332 (1994). Entered into force, 26
December 1995; India signed, 14 October 1994; ratified 17 December
1996.

16. International Tropical Timber Agreement (Geneva, 1994). 33 I.L.M.
1016 (1994). Entered into force 1 January 1997. India signed, 17
September 1996. India ratified 17 October 1996.

17. Protocol on Environmental Protection to the Antarctica Treaty
(Madrid, 1991). Entered into force 15 January 1998.

D. ESTABLISHED NORMS OF INTERNATIONAL ENVIRONMENTAL LAW

Norms are general legal principles that are widely accepted. This
acceptance is evidenced in a number of ways, such as international
agreements, national legislation, domestic and international judicial
decisions, and scholarly writings. The leading norms in the field of
international environmental law are addressed below:

(1) Foremost among these norms is Principle 21 of the 1972 Stockholm
Declaration on the Human Environment. Principle 21 maintains that
'States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit
their own resources pursuant to their own environmental policies, and
the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States or
of areas beyond the limits of national jurisdiction".(2)

(2) Another widely shared norm is the duty of a state to notify and
consult with other states when it undertakes an operation that is
likely to harm neighbouring countries' environments, such as the
construction of a power plant, which may impair air or water quality
in downwind or downstream states.

(3) Over and above the duty to notify and consult, a relatively new
norm has emerged whereby states are expected to monitor and assess
specific environmental conditions domestically, and disclose these
conditions in a report to an international agency or international
executive body created by an international agreement, and authorised
by the parties to the agreement to collect and publicize such
information.

(4) Another emerging norm is the guarantee in the domestic
constitutions, laws or executive pronouncements of several states,
including India,(3) Malaysia, Thailand, Indonesia, Singapore and the
Philippines, that all citizens have a right to a decent and healthful
environment. In the United States, this fundamental right has been
guaranteed by a handful of states but not by the federal government.

(5) Most industrialized countries subscribe to the polluter pays
principle. This means polluters should internalise the costs of their
pollution, control it at its source, and pay for its effects,
including remedial or cleanup costs, rather than forcing other states
or future generations to bear such costs. This principle has been
recognized by the Indian Supreme Court as a 'universal' rule to be
applied to domestic polluters as well.(4) Moreover, it has been
accepted as a fundamental objective of government policy to abate
pollution.(5)

(6) Another new norm of international environment law is the
precautionary principle. This is basically a duty to foresee and
assess environmental risks, to warn potential victims of such risks
and to behave in ways that prevent or mitigate such risks. In the
context of municipal law, Justice Kuldip Singh of the Supreme Court
has explained the meaning of this principle in the Vellore Citizens'
Welfare Forum Case,(6) which is excerpted later in this section.

(7) Environmental impact assessment is another widely accepted norm of
international environmental law. Typically, such an assessment
balances economic benefits with environmental costs. The logic of such
an assessment dictates that before a project is undertaken, its
economic benefits must substantially exceed its environmental costs.
India has adopted this norm for select projects which are covered
under the Environmental Impact Assessment (EIA) regulations introduced
in January, 1994.(7)

(8) Another recent norm is to invite the input of non-governmental
organizations (NGOs), especially those representing community-based
grassroots environmental activists. This NGOs participation ensures
that the people who are likely to be most directly affected by
environmental accords will have a major role in monitoring and
otherwise implementing the accord. This principle is mirrored in the
Indian government's domestic pollution control policy(8) and the
national conservation policy,(9) and is given statutory recognition in
the EIA regulations of 1994. The Supreme Court has urged the
government to draw upon the resources of NGOs to prevent environmental
degradation.(10)

(9) In October 1982, the United Nations General Assembly adopted the
World Charter for Nature and Principles of Sustainable Development.
The agreement expressly recognised the principle of sustainable
development, defined as using living resources in a manner that 'does
not exceed their natural capacity for regeneration' and using 'natural
resources in a manner which ensures the preservation of the species
and ecosystems for the benefit of future generations.' The principle
of sustainable development was also acknowledged in the 1987 report
Our Common Future, published by the United Nations World Commission on
Environment and Development. This report defined sustainable
development as 'humanity's ability... to ensure that [development]
meets the need of the present generation without compromising the
ability of future generations to meet their needs.' The Supreme
Court(11) as well as the Indian government have recognised the
principle of sustainable development as a basis for balancing
ecological imperatives with developmental goals.(12)

(10) Intergenerational equity is among the newest norms of
international environmental law. It can best be understood not so much
as a principle, but rather as an argument in favour of sustainable
economic development and natural resource use. If present generations
continue to consume and deplete resources at unsustainable rates,
future generations will suffer the environmental (and economic)
consequences. It is our children and grandchildren who will be left
without forests (and their carbon retention capacities), without vital
and productive agricultural land and without water suitable for
drinking or sustaining cultivation or aquatic life. Therefore, we must
all undertake to pass on to future generations an environment as
intact as the one we inherited from the previous generation.

Proponents of intergenerational equity maintain that the present
generation has a moral obligation to manage the earth in a manner that
will not jeopardize the aesthetic and economic welfare of the
generations that follow. From this moral premise flow certain
ecological commandments: 'Do not cut down trees faster than they grow
back. Do not farm land at levels, or in a manner, that reduce the
land's regenerative capacity. Do not pollute water at levels that
exceed its natural purification capacity.'

In State of Himachal Pradesh v. Ganesh Wood Products(13) the Supreme
Court recognized the significance of inter-generational equity and
held a government department's approval to establish forest-based
industry to be invalid because 'it is contrary to public interest
involved in preserving forest wealth, maintenance of environment and
ecology and considerations of sustainable growth and inter-
generational equity. After all, the present generation has no right to
deplete all the existing forests and leave nothing for the next and
future generations.'(14)

(11) At the 1982 United Nations Conference on the Law of the Sea
(UNCLOS),(15) developing countries, led by India, articulated the norm
that certain resources, such as the deep seabed, are part of the
common heritage of mankind and must be shared by all nations.

(12) The 1992 Rio de Janeiro Earth Summit articulated the norm of
common but different responsibilities. With regard to global
environmental concerns such as global climate change or stratospheric
ozone layer depletion, all nations have a shared responsibility, but
richer nations are better able than poorer nations to take the
financial and technological measures necessary to shoulder the
responsibility.

E.JUS COGENS, HEALTHFUL ENVIRONMENT, SUSTAINABLE DEVELOPMENT

As mentioned, norms of customary international law evolve through
custom and usage. Not all norms are of equal importance however, some
being accorded the status of fundamental norms. The category of
fundamental norms comes under the doctrine of jus cogens, or the
doctrine of peremptory norms. The 1969 Vienna Convention on the Law of
Treaties(16) serves to clarify the concept in Article 53 as follows:

A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law. For the purposes of
the present Convention, a peremptory norm of general international law
is a norm accepted and recognised by the international community of
States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general
international law having the same character.

The doctrine of jus cogens is extremely limited and extends to only a
handful of norms, the most long-standing of which are the prohibitions
against the slave trade, piracy and genocide. Many scholars also
believe that the norm expressed in Principle 21 of the Stockholm
Convention has risen to jus cogens status. Principle 21 is based on
the Roman maxim, sic utero tuo et alienum non laedas, which roughly
means 'do not behave in a way that hurts your neighbour.' However,
again the question arises, what good does an international peremptory
norm, like an international agreement, achieve?

Consider some of the other norms addressed above, such as the right to
a healthful environment. Is there to be one standard by which all
environments are judged, or is it a relative concept? If cutting down
trees for firewood destroys the environment, but provides life-
sustaining fuel, which right will prevail? Which right should prevail?
How much weight does each of the two rights carry when the concept of
intergenerational equity is introduced?

When considering moral ideals such as the principles of a common
heritage and intergenerational equity, what incentives do countries
have to try to mould their practices to achieve these ideals? How can
countries be better motivated? Is saving the environment for its own
sake going to appeal to the majority of people, or does there have to
be a more direct benefit, like the idea that we may, by destroying an
ecosystem, inadvertently destroy the cure for cancer?

What exactly is 'sustainable development'? What is 'sustainable'?
Could not intelligent and informed people differ over whether
producing more minerals or preserving a landscape is sustainable. If
so, which is more important? And what is 'development'? Factories that
employ thousands, give a country more industry with which to compete
in the world market, but discharge effluents into the water and
produce piles of hazardous waste. Do some countries have more of a
right to development and less of an obligation to ensure
sustainability and vice versa? How much more do industrialised nations
need to develop? Have they not gone far enough? Who is to judge?

F. EXTRACTS FROM VELLORE CASE

At the end of a judicial career, Justice Kuldip Singh of the Supreme
Court issued comprehensive directions to clean up the mess created by
the leather tanneries of Tamil Nadu. In the following excerpt from
this leading case, Justice Singh borrowed international law norms and
applied them to the local milieu.

VELLORE CITIZENS' WELFARE FORUM v. UNION OF INDIA

AIR 1996 SC 2715

KULDIP SINGH, J.:

* * *

The traditional concept that development and ecology are opposed to
each other, is no longer acceptable. 'Sustainable Development' is the
answer. In the International sphere 'Sustainable Development' as a
concept came to be known for the first time in the Stockholm
Declaration of 1972. Thereafter, in 1987 the concept was given a
definite shape by the World Commission on Environment and Development
in its report called 'Our Common Future'. The Commission was chaired
by the then Prime Minister of Norway Ms.G.H.Brundtland and as such the
report is popularly known as "Brundtland Report". In 1991 the World
Conservation Union, United Nations Environment Programme and World
Wide Fund for Nature, jointly came out with a document called 'Caring
for the Earth' which is a strategy for sustainable living. Finally,
came the Earth Summit held in June, 1992 at Rio which saw the largest
gathering of world leaders ever in the history -- deliberating and
chalking out a blue print for the survival of the planet. Among the
tangible achievements of the Rio Conference was the signing of two
conventions, one on biological diversity and another on climate
change. These conventions was signed by 153 nations. The delegates
also approved by consensus three non-binding documents namely, a
Statement on Forestry Principles, a declaration of principles on
environmental policy and development initiatives and Agenda 21, a
programme of action into the next century in areas like poverty,
population and pollution. During the two decades from Stockholm to Rio
'Sustainable Development' has come to be accepted as a viable concept
to eradicate poverty and improve the quality of human life while
living within the carrying capacity of the supporting eco-systems.
'Sustainable Development' as defined by the Brundtland Report means
'development that meets the needs of the present without compromising
the ability of the future generations to meet their own needs'. We
have no hesitation in holding that 'Sustainable Development' as a
balancing concept between ecology and development has been accepted as
a part of the Customary International Law though its salient features
have yet to be finalized by the International Law Jurists.

Some of the salient principles of 'Sustainable Development', culled-
out from Brundtland Report and other international documents, are
inter-generational equity; use and conservation of natural resources;
environmental protection; the precautionary principle; polluter pays
principle; obligation to assist and cooperate, eradication of poverty
and financial assistance to the developing countries. We are, however,
of the view that 'the precautionary principle' and 'the polluter pays'
principle are essential features of 'Sustainable Development'. The
'precautionary principle'-- in the context of the municipal law -
means:

(i) Environmental measures -- by the State Government and the
statutory authorities -- must anticipate, prevent and attack the
causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack
of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.

(iii) The 'Onus of proof' is on the actor or the
developer/industrialist to show that his action is environmentally
benign.

'The polluter pays' principle has been held to be a sound principle by
this Court in Indian Council for Enviro-Legal Action vs. Union of
India (The Bichhri Case), 1996 (3) SCC 212. The Court observed, 'We
are of the opinion that any principle evolved in this behalf should be
simple, practical and suited to the conditions obtaining in this
country'. The Court ruled that 'Once the activity carried on is
hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person by
his activity irrespective of the fact whether he took reasonable care
while carrying on his activity. The rule is premised upon the very
nature of the activity carried on'. Consequently the polluting
industries are 'Absolutely liable to compensate for the harm caused by
them to villagers in the affected area, to the soil and to the
underground water and hence, they are bound to take all necessary
measures to remove sludge and other pollutants lying in the affected
areas'. The 'polluter pays' principle as interpreted by this Court
means that the absolute liability for harm to the environment extends
not only to compensate the victims of pollution but also the cost of
restoring the environmental degradation. [Remedying] the damaged
environment is part of the process of 'Sustainable Development' and as
such [the] polluter is liable to pay the cost to the individual [who]
suffers as well as the cost of reversing the damaged ecology.

[The court then set out the provision of the Constitution as well as
the Water Act, Air Act and Environment (Protection) Act]. In view of
the above mentioned constitutional and statutory provisions we have no
hesitation in holding that the precautionary principle and the
polluter pays principle are part of the environmental law of the
country.

Even otherwise once these principles are accepted as part of the
Customary International Law there would be no difficulty in accepting
them as part of the domestic law. It is almost accepted proposition of
law that the rule of Customary International Law which are not
contrary to the municipal law shall be deemed to have been
incorporated in the domestic law and shall be followed by the Courts
of Law. For support we may refer to Justice H.R.Khanna's opinion in
Addl. Distt. Magistrate Jabalpur vs. Shivakant Shukla (AIR 1976 SC
1207), Jolly George Verghese's case (AIR 1980 SC 470) and Gramophone
Company's case (AIR 1984 SC 667).

The Constitutional and statutory provisions protect a persons right to
fresh air, clean water and pollution free environment, but the source
of the right is the inalienable common law right of clean environment.
[The court proceeded to quote a paragraph from Blackstone's
commentaries on the Laws of England (1876) in respect of 'nuisance'].
Our legal system having been founded on the British Common Law the
right of a person to pollution free environment is a part of the basic
jurisprudence of the land.

G. CONSTITUTIONAL PROVISIONS RELATING TO INDIA'S INTERNATIONAL
OBLIGATIONS

Article 51(c) of the Constitution sets out a Directive Principle
requiring the state to foster respect for international law and treaty
obligations. Article 253 of the Constitution empowers Parliament to
make laws implementing India's international obligations as well as
any decision made at an international conference, association or other
body. Article 253 states : 'Notwithstanding anything in the foregoing
provisions of this Chapter, Parliament has power to make any law for
the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or
any decision made at any international conference, association or
other body'. Entry 13 of the Union List covers : 'Participation in
international conferences, associations and other bodies and
implementing of decisions made thereat.' In view of the broad range of
issues addressed by international conventions, conferences, treaties
and agreements, Article 253 read with Entry 13 apparently gives
Parliament the power to enact laws on virtually any entry contained in
the State List.

Parliament has used its power under Article 253 read with Entry 13 of
the Union List to enact the Air (Prevention and Control of Pollution)
Act of 1981 and the Environment (Protection) Act of 1986.(17)7 The
preambles to both laws state that these Acts were passed to implement
the decisions reached at the United Nations Conference on the Human
Environment held at Stockholm in 1972. At the conference, members of
the United Nations agreed to work to preserve the world's natural
resources, and called on each country to carry out this goal.

The broad language of Article 253 suggests that in the wake of the
Stockholm Conference in 1972, Parliament has the power to legislate on
all matters linked to the preservation of natural resources.
Parliament's use of Article 253 to enact the Air Act and Environment
Act confirms this view.

H. ADOPTING OVERSEAS NORMS

The Supreme Court has occasionally looked at pollution standards
abroad to strengthen local environmental regulation. This is
illustrated by the Motor Vehicle Pollution case filed by Mr. M.C.
Mehta in the Supreme Court.

On April 16, 1999, the Supreme Court targetted diesel vehicles, which
were blamed for more than 90 per cent of the Nitrogen Oxide and
respirable particulate matter (RSPM) in Delhi's air. Noting that the
California Air Resource Board had on 27 August 1998 formally
designated diesel particulate as a toxic air contaminant, and the
amicus curiae's request to suspend the registration of diesel vehicles
in Delhi, the court adjourned the case to April 29, 1999 to consider
submissions on the issue.(18)8

On the adjourned date a bench headed by Chief Justice A. S. Anand
imposed super norms for vehicles registered in the National Capital
Region (NCR), which 'appeared appropriate' to the bench.(19)9 The
court required all private vehicles registered after 1 June 1999 to
conform to Euro I norms and those registered after 1 April 2000 to
meet the Euro II norms. Diesel taxi's were prohibited in the NCR
unless they conformed to Euro II norms. The Euro norms are European
Community standards that have been enforced across Europe. On 13 May
1999,(20)0 the court clarified that what it meant by the 'Euro I
norms' were the India 2000 norms, notified by the Central Government
on 28 August 1997. In other words, the court advanced the statutory
emission norms that were to come into effect on 1 April 2000 to 1 June
1999; and introduced more stringent emission standards (Euro II) with
effect from 1 April 2000. The Euro II norms were re-christened 'Bharat
Stage II' standards by the Central Government and were notified
through the Central Motor Vehicles (Third Amendment) Rules of 2000.

I. GLOBAL ENVIRONMENTAL GROUPS

An emerging trend in India is the impact of Global NGOs in influencing
domestic environmental law and policy. This is not an entirely new
development, since the assistance of say IUCN in helping the local
groups campaigning against the Silent Valley project is well
documented. Greenpeace reports played a role in prompting the Supreme
Court of India to clamp down on the import of hazardous waste into the
country for recycling. It was only pursuant to directions issued by
the Supreme Court in the public interest litigation, Research
Foundation for Science, Technology and Natural Resource Policy v.
Union of India that the import of hazardous waste was banned.
Likewise, a petition has been recently filed in the Calcutta High
Court relating to the adverse environmental impact of PVC. This
petition too relies heavily on a report prepared by Greenpeace. Global
NGOs are attempting to spur governments into adopting local
regulations on the basis of environmental standards and norms that
have been invoked in jurisdictions elsewhere.

1. 1 Reprinted in 31 I.L.M. 818 (1992) and P.Birnie and A.Boyle, Basic
Documents on International Law and Environment 390 (1995).

2. 2 Emphasis supplied. Reprinted in P.Birnie and A.Boyle, id. at 1.

3.

3 The fundamental right to life guaranteed under Article 21 of the
Indian Constitution has been interpreted by the Supreme Court to
include the right to a wholesome environment. Subhash Kumar v. State
of Bihar, AIR 1991 SC 420, 424.

4.

4 The Bichhri Case (Indian Council for Enviro-Legal Action v. Union of
India), AIR 1996 SC 1446; and Vellore Citizens' Welfare Forum v. Union
of India, AIR 1996 SC 2715.

5. 5 Ministry of Environment and Forests, Government of India, Policy
Statement for Abatement of Pollution para 3.3 (26 February 1992).

6. 6 Supra note 4. In A.P. Pollution Control Board v Prof. M.V. Nayudu
AIR 1999 SC 812 the Supreme Court traced the development of the
precautionary principle.

7.

7 The EIA regulations are extensively dealt with in the Large Projects
chapter.

8.

8 Supra note 5, at para 11.1.

9. 9 Ministry of Environment and Forests, Government of India,
National Conservation Strategy and Policy Statement on Environment and
Development para 8.7 (June, 1992).

10. 10 Indian Council for Enviro-Legal Action v Union of India (CRZ
Notification Case) 1996 (5) SCC 281.

11. 11 Vellore Citizens' Welfare Forum v Union of India AIR 1996 SC
2715.

12. 12 Supra note 9, at paras 1.1, 1.3.

13. 13 AIR 1996 SC 149, 163. Also see CRZ Notification Case, Supra
note 10, where the court expressed its concern at the adverse
ecological effects which will have to be borne by future generations.

14. 14 Id.

15. 15 Reprinted in 21 I.L.M. 1261 (1982).

16. 16 Reprinted in 8 I.L.M. 679 (1969).

17. 1 7 S. Jagannath v Union of India (Shrimp Culture Case) AIR 1997
SC 811, 844, 846.

18. 18 1999 (6) SCC 9.

19. 19 1999 (6) SCC 12.

20. 20 1999 (6) SCC 14.

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