Part I Introduction

2020 ◽  
pp. 23-30
Author(s):  
Nicolas de Sadeleer

Part I aims to clarify when and how the polluter-pays, preventive, and precautionary principles co-exist: complementing, enriching, and in some cases contradicting each other. It stresses that these principles could be best described using three distinct models representing three paradigms of regulation: a curative model, a preventive model, and an anticipatory model. A curative model of nature characterized the early stages of environment policy and shaped the polluter-pays principle. This model was practicable only if accompanied by a preventive policy intended to limit environmental damage. The emergence of increasingly unpredictable risks is at present causing the authorities to base their policy on a third, anticipatory model that gave rise to the precautionary principle. The three principles examined in the first part of this book correspond to the three models described in this introduction.

2020 ◽  
pp. 363-364
Author(s):  
Nicolas de Sadeleer

The conclusion highlights that the polluter-pays, preventive, and precautionary principles must be considered in terms of interaction rather than opposition, particularly since they are operationally interdependent. Indeed, the precautionary principle calls for the presence of prevention, which in turn implies support for the polluter-pays principle. A preventive policy that would no longer be financed by the polluter-pays principle would be destined to fail. In addition, the conclusions of Part I highlight that the polluter-pays, preventative, and precautionary principles are well represented in positive law; they are helping to shape new legal instruments and adapt mechanisms, not necessarily specific to environmental law, intended to achieve protective ends.


1995 ◽  
Vol 31 (8) ◽  
pp. 1-8 ◽  
Author(s):  
Rainer E. Enderlein

Main policy issues for the protection and use of water resources cover the application of the precautionary principle, prevention of pollution at source, the polluter-pays principle, the sustainability principle, and the cooperation among States to prevent disputes on water issues. The paper describes recent developments and progress made by European countries in cooperating on these issues.


2017 ◽  
Vol 41 (2) ◽  
pp. 110
Author(s):  
Gabriele Borges Rodrigues ◽  
Leonardo Da Rocha de Souza

Resumo: O objetivo deste artigo é analisar o princípio da precaução como critério utilizado pela Administração Pública para a liberação de organismos geneticamente modificados (OGMs). Para isso, realiza-se um estudo a respeito da importância do princípio da precaução para a realização da proteção ambiental, trazendo-se um enfoque da sua regulação em instrumentos internacionais. A seguir, trabalha-se com os problemas provenientes da incerteza científica e como eles afetam o dever que o Estado tem de evitar danos, incertezas essas que geram dificuldades para a aplicação do princípio da precaução. Esse contexto leva este texto a algumas propostas de soluções para Administração Pública aplicar o princípio da precaução apesar (e em virtude) das incertezas científicas. Permeia o texto, e enfatiza-se ao final, uma aplicação do princípio da precaução na liberação de organismos geneticamente modificados. A abordagem é realizada utilizando-se o método hipotético-dedutivo, levantando-se hipóteses e possibilidades para aplicação prática do princípio da precaução na atuação da Administração Pública. Utiliza-se a técnica de pesquisa de documentação indireta, com a revisão bibliográfica de obras nacionais e estrangeiras, incluindo periódicos e textos normativos. Como resultado, pretende-se que este artigo subsidie o aperfeiçoamento de políticas públicas de proteção ambiental, de forma a evitar que as incertezas científicas gerem danos ambientais e propondo-se maior cautela na inserção dos OGMs no meio ambiente.Abstract: The purpose of this article is to analyze the precautionary principle as a criterion used by public authorities for the release of genetically modified organisms (GMOs). For this, we carried out a study about the importance of the precautionary principle for the realization of environmental protection, bringing a focus of its regulation on international rules. Next, we work with problems arising from scientific uncertainty and how they affect the duty that the state has to prevent damage, such uncertainties that generate difficulties for the application of the precautionary principle. This context leads this text to some proposed solutions for Public Administration apply the precautionary principle despite (and because) of scientific uncertainty. During the text, with an emphasis on end, we carry out an application of the precautionary principle in the release of genetically modified organisms. The approach is performed using the hypothetical-deductive method, rising hypotheses and possibilities for practical application of the precautionary principle in the operation of Public Administration. We use the indirect documentation search technique, the literature review of national and foreign works, including periodicals and normative texts. As a result, we intend this article to subsidize the improvement of public policies for environmental protection, in order to prevent the scientific uncertainties, generate environmental damage and proposing greater caution in the insertion of GMOs into the environment.


Author(s):  
Cameron Alastair Moore ◽  
Caroline Gross

The previous Commonwealth Minister for the Environment, Mr Garrett, recently rejected a request to allow the importation of live bumblebees (Bombus terrestris L.) to mainland Australia. New South Wales and Victoria had already listed the introduction of bumblebees as, respectively, a key threatening process and a potentially threatening process. The Commonwealth, however, had previously declined an application to list the introduction of bumblebees as a key threatening process, although its Threatened Species Scientific Committee urged ‘that extreme caution be shown in considering any proposal to introduce this species to the mainland.’ The potential threat from bumblebees would appear to beg the questions posed by the precautionary principle. Would the presence of bumblebees to mainland Australia pose a threat of serious or irreversible environmental damage? Should a lack of full scientific certainty be used as a reason for postponing measures to prevent environmental degradation? This paper considers the role of the precautionary principle in regulatory approaches to the bumblebee. It seeks to establish the application of the precautionary principle to this particular potential environmental threat, including its relationship to the principle of conservation of biological diversity. It concludes that, despite widespread adoption of the precautionary principle in policy, legislation and case law in Australia, its impact on regulating bumblebees has not been consistent.


2021 ◽  
Vol 11 (2) ◽  
pp. 134-148
Author(s):  
Dede Frastien ◽  
Edra Satmaidi ◽  
Iskandar Iskandar

Coal mining license is a juridical instrument for businessmen to carry out coal mining activities. Coal mining license is also a preventive instrument to prevent coal mining activities from causing environmental damage and pollution. In the process of issuing and implementing coal mining licenses according to Law Number 32 of 2009 concerning Environmental Protection and Management, one must consider the precautionary principle, which is implemented by integrating environmental considerations, in making coal mining licenses decisions. However, coal mining activities carried out by 9 coal mining companies in the Watershed of Air Bengkulu, showed that there was environmental destruction and pollution seen along the Watershed of Air Bengkulu. This study aimed to determine the application of the precautionary principle to coal mining licenses and the legal consequences of coal mining license decisions that did not apply the precautionary principle. This research was conducted using juridical empirical/socio-legal research, and data analysis was carried out using a qualitative juridical approach. The results of this research showed that the government of Bengkulu Province has not applied the precautionary principle in the process and implementation of coal mining license in the Watershed of Air Bengkulu of Central Bengkulu Regency. The legal consequence of not applying the precautionary principle in the decision to issue 9 (nine) coal mining licenses which was an essential and material requirement in a decision to issue a permit was null and void (nietig van rechtwege) and could be canceled (vernietig baar), the government of Bengkulu Province has the authority to cancel the licenses decision because it is a State Administration official.


Author(s):  
Joachim Wolf

The most important difficulty facing a Rechtsstaat  idea when it comes to the realization of "sustainable development", lies in the structural differences between the constitutional order based on the Rechtsstaat on the one hand, and the dynamics of political and economic planning on the order.  "Sustainable development" is development that links ecology and economy in such a way that ecological harm is minimized.  Development should therefore be in the interest of future generations.There is, however, not yet much legislation concerning environmental protection, because the Rechtsstaat finds itself in a position where it cannot take sides.  In no circumstances can the state legalize the ecological aspect, for this will presuppose state interference in the economic system,  therefore violation a principle of the Rechsstaat.  Environmental protection could thus easily be misused as the basis for allowing the state to directly manipulate the economic process.The state has the duty to invoke which measures which could help to regulate environmental harm and to create a legal basis for future economic and technological developments which are compatible with environmental protection.  The German Constitutional amendment of 1994 deliberately did not take up environmental protection in the catalogue of fundamental rights.  In terms of German constitutional law, state goals bind the legislature and should be translated into legislation.  Article 20a GG formulates environmental protection as a state goal.It would be seem to be fair to suggest that the most important contribution towards getting to grips with the responsibilities of the Rechsstaat in promoting environmental protection has been made by legislative bodies in European as well as in German environmental law.  The legislative measures require that precautionary measures should be taken by those who cause the environmental damage or risk.  Environmental protection and economic development are inseparable in state politics.  While planning economic policy the state has to take into account the environmental impact of such policy in order to give effect to the precautionary principle.  The precautionary principle thus has a regulatory character and a planning law dimension.In a Rechtsstaat the state can regulate environmental protection only through the precautionary principle so as not to interfere in economic policy.  Only in this manner can "sustainable development" be maintained.


2019 ◽  
Vol 26 (3) ◽  
pp. 35-44
Author(s):  
I. Yu. Blam

The article attempts to establish general approaches to statistical measurements of effects from a failure to take necessary environmental actions in the medium and long term (or, to use the author’s terminology, estimating the «costs of inaction»). It is emphasized such an assessment is closely related to the «precautionary principle», which implies the rejection of the use of innovative products and technologies due to lack of confidence in their safety for the health of the population and the environment. The paper addresses main problems associated with the practical application of the «precautionary principle», such as risk assessment and management, effective coordination between science and politics, as well as finding a reasonable balance between innovation and potential social and environmental damage.An analysis of today’s most successful attempts to determine the costs of inaction has made it possible to identify methodological shortcomings of the «ethical» approach, which forces us to treat with some caution the estimated costs of future periods that arise in the case of an «insufficiently ambitious» environmental policy.The example of determining the costs of inaction associated with the extraction of shale hydrocarbons by hydraulic fracturing (fracking), shows the present methodological difficulties in assessing the potential risks of environmental pollution and the direction of their solution. The author concludes that under conditions of a high degree of uncertainty at all stages of assessing the negative impact on the environment, the application of the «precautionary principle» can be based on an analysis of the degree of reversibility of the impact of innovative products and technologies.


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