Tundi's Take: The Precautionary Principle, and Shifting the Burden of Proof

The Skimmer on Marine Ecosystems and Management

By Tundi Agardy, MEAM Contributing Editor (tundiagardy [at] earthlink.net)

Of all the principles that serve as the foundation for EBM, the precautionary approach may be the most inherently problematic. It presents several paradoxes:

  • Its premise is pure logic...yet its articulation is often so complex as to be incomprehensible;
  • It grows out of an attempt to make conservation more rigorous, objective, and science-based...yet it is often invoked as an excuse to err subjectively on the side of conservation; and
  • It is meant to address uncertainty head-on by providing a framework for making decisions when information is lacking...yet the thresholds for uncertainty (i.e., when information can be considered lacking enough to be called "uncertainty") remain uncertain.

This all leaves us with the sorry situation that it is difficult to know when to invoke the precautionary principle.

Thinking and writing about the precautionary principle is challenging, and I leave it to other contributors with greater mental acuity than mine to discuss its implications for EBM. Instead, I'd like to focus on a related topic: shifting the burden of proof.

Discussions about burden of proof rest on the precautionary assumption that only activities that can be proven not to adversely impact ecosystems should be permitted. However, in the face of an inability to predict exactly what the ecological, environmental, economic, and social consequences of an activity will be, the decision framework for managing uses of the sea becomes muddied. Institutions that support decision-making by providing information must scramble to find the data to evaluate trade-offs and make informed choices. Government agencies contract with such institutions and then manage the information they provide. This is done against the backdrop of squeezed budgets and limited capacities for day-to-day operations.

Since uncertainties about the consequences of development are generally huge in the marine sphere, there has been an outcry to shift the burden of proof - from the public to the private sector. That is, industries that propose new development (or an increase in resource use for already permitted activities) should bear the costs of amassing information to show their activity will not cause undue harm to ecosystems or people.

Under this scenario, the fishing industry would shoulder the costs of collecting data and doing analyses to show that an increase in quota would not adversely affect stocks, food webs, and biodiversity. Similarly, a marina developer proposing to convert coastal estuary and wetlands would finance the studies to show the development would not adversely impact the delivery of ecosystem services (such as provision of fish nursery areas, filtering of pollutants, maintaining hydrological balances, etc.). Likewise, the energy industry would be responsible for providing the information needed to evaluate the risks - set against the potential benefits - of a certain installation in a particular place.

Cynics will immediately decry such assessments as tainted: in other words, science is being "bought" to support profit-making. But there is a difference between subsidizing research and conducting research in-house. Shifting the burden of proof would allow roadblocks posed by uncertainties to be overcome, without further stressing marine management agencies and their budgets.

Although this may seem obvious, virtually all international agreements calling for an ecosystem approach and invoking the precautionary principle (e.g., UN Conference on Law of the Sea, UN Fish Stocks Agreement, FAO Code of Conduct for Responsible Fisheries, Convention on Biological Diversity) leave the burden of evaluating risk in the face of uncertainty to the States. Given how financially strapped these coastal countries already are, it is doubtful that systematic and rational assessments will be sufficiently performed.

The good news is that the global march toward EBM - and with it the use of marine spatial planning and ocean zoning - provides greater security for development interests to make such investments in research and analysis. As regulatory frameworks adapt to the new EBM realities, it is likely that industries will be required to underwrite information-gathering. Such frameworks will remove much of the confusion plaguing ocean industries, including uncertainties regarding permitting procedures and durability of use rights. Thus industries may be more inclined to accept the burdens of proof moving their way.