Laserfiche WebLink
<br />000385 <br /> <br />DRAFT-Not for distribution <br /> <br />Compensation for past ecological debt as a penalty for lack of caution or care in <br />the past. Those who have created a large ecological burden already should be <br />more 'precautious' than those who have not. 'Precaution put into reverse.' <br />Compensating for past errors of judgment based on ignorance or an unwillingness <br />to shoulder an unc1early stated sense of responsibility for the future. <br /> <br />"By no means [are] all of these interpretations... formally approved in international law <br />and common practice. At present the line is to act prudently when there is sufficient <br />scientific evidence and where action can be justified on reasonable judgments of cost <br />effectiveness and where inaction could lead to potential irreversibility or demonstrate <br />harm to the defenders and future generations." <br /> <br />Sonja Boehmer Christiansen, in "Interpreting the Precautionary Principle," Tim O'Riordan and <br />James Cameron (eds.), Earthscan Publications Ltd, London, 1994. http://dieoff.org/page31.htm. <br />See, also, James Cameron and Julia Abouchar, "The Precautionary Principle: A Fundamental <br />Principle of Law and Policy for the Protection of the Global Environment," 14 Boston College <br />International and Comparative Law Review 1 (Winter, 1991). <br /> <br />158 "We believe there is compelling evidence that damage to humans and the worldwide <br />environment is of such magnitude and seriousness that new principles for conducting human <br />activities are necessary.*** Therefore, it is necessary to implement the Precautionary Principle: <br />When an activity raises threats of harm to human health or the environment, precautionary <br />measures should be taken even if some cause and effect relationships are not fully established <br />scientifically. In this context the proponent of an activity, rather than the public, should bear the <br />burden of proof. The process of applying the Precautionary Principle must be open, informed <br />and democratic and must include potentially affected parties. It must also involve an examination <br />of the full range of alternatives, including no action." Wingspread Statement on the <br />Precautionary Principle, Racine, Wisconsin, January 1998. <br /> <br />159 Implementation of an approach much like the Precautionary Principle by the U.S. Fish and <br />Wildlife Service's implementation of the Endangered Species Act has been eschewed by the 9th <br />Circuit Court of Appeals. See, Arizona Cattle Growers' Association v. Us. Fish and Wildlife <br />Service, 9th Circuit Court of Appeals, No. 99-16102, in which the Court found arbitrary and <br />capricious the agency's imposition of conditions in an incidental take permit where it was based <br />on "a mere potential for harm," without more causal connection. The primary suppositions of <br />the. Precautionary Principle may be somewhat at odds with concepts of measurable risk <br />assessment incorporated in U.S. environmental laws, and with concepts of culpability and duty <br />of care incorporated in U.S. personal i,njury law, and with rules of evidence utilized by U.S. <br />courts. <br /> <br />160 At least one author has interpreted the International Court of Justice's ruling in the <br />Gabcikovo-Nagymaros Project case as voiding reliance on environmental necessity as a <br />"legitimate precautionary measure" where an express treaty exists. Preiss, supra, n. 74 <br /> <br />161 "Jus cogens" stands in contrast to ''jus dispositivium" which is alterable or extinguishable by <br />consent. See Eva M. Kornicker Uhlmann, "State Community Interests, Jus Cogens and <br /> <br />44 <br />