Precautionary principle

Once damage to the environment has already occurred, the only option is to put it right by retrospective remediation. If there is a risk to the environment - that is to say, if environmental damage is foreseeable with a reasonable degree of probability - the principle of danger prevention requires that its occurrence be prevented. The precautionary principle goes one important step further: The intention is for dangers to the environment to be prevented from arising in the first place. The precautionary principle therefore leads us to act in good time and with foresight in order to avoid environmental pollution.

The two dimensions of the precautionary principle are risk prevention and taking care of resources. Risk prevention means that, in the event of incomplete or uncertain knowledge of the nature, extent, probability and causality of environmental damage and dangers, one acts in a precautionary manner to prevent such environmental damage from the outset. Taking care of resources means handling natural resources such as water, soil and air with a view to their long-term conservation in the interest of future generations.

Guiding principle of environmental policy

The precautionary principle is the guiding principle of environmental policy at German, EU and international levels. As such it plays a central role in environmental policy decisions. As already stated in the environmental report of the Federal Government from 1976  and again in 1986, with the “precautionary environmental protection guidelines”, the Federal government declared the precautionary principle - alongside the polluter-pays and cooperation principles - to be a guiding principle of its environmental policy. The European Union's environmental policy is also based on the precautionary principle (article 191 of the Lisbon Treaty on the Functioning of the European Union). In its communication in 2000 on the application of the precautionary principle, the European Commission stressed the importance of the precautionary principle as an essential element of EU policy on risk prevention. At the international level, participants in the United Nations Conference on the Environment and Development in 1992 committed themselves to applying the precautionary principle for the protection of the environment. The precautionary principle is also enshrined in international law in several international conventions such as the UN Framework Convention on Climate Change and the OSPAR Convention for the protection of the marine environment of the North-East Atlantic.

The precautionary principle is also an important guideline for the work of the German Environment Agency, inasmuch as we see ourselves as an early warning system for the early detection and assessment of possible future risks to people and the environment and the proposal of solutions.

Principle of environmental law

The precautionary principle is one of the main principles of German environmental law. It is expressly regulated in article 34 (1) of the Unification Treaty as a self-imposed commitment of the legislator and is therefore part of applicable Federal law. The precautionary principle is also enshrined in article 20a of the Basic Law. This article commissions the state with the task of protecting the natural bases of existence, also with responsibility to future generations, the pursuit of which can entail both danger prevention and precautionary measures.

The precautionary principle particularly gives the state the legal power to manage situations of uncertainty and ensures that the state is capable of acting also in these situations. It can legitimise or even demand state action to protect the environment. In situations of uncertainty the consequences of an action for the environment cannot be definitively assessed because of the uncertainty or incompleteness of current scientific knowledge, but the present findings give cause for concern. In these cases the state need not wait for certainty but can respond in accordance with the principle of proportionality to that which is giving rise to the concern. The precautionary principle does not lay out how the state is to do this in detail. The legislators must rather decide how to translate the precautionary principle into law and how to instrumentalise it. The spectrum of possible responses ranges from measures aimed at obtaining information to those which prohibit a particular activity or, for example, ban certain hazardous substances. The precautionary principle can thereby lower the standard of proof and make it possible to shift the burden of proof: For the state to act, the conviction that a risk is actually real and present is not required. Plausible or serious indications of a risk to the environment is instead sufficient. If this exists, it is then incumbent on the causer to refute the substantiated indications of specific cause-and effect relationships and to shatter the assumptions which have given rise to the concern.

The legislators have enshrined the precautionary principle as a legal provision in environmental law by means of various regulations, rendered it specific and implemented it as an instrument. It has at the same time created the necessary legal basis for the state to encroach on the rights of individuals in its pursuit of precautionary measures. Examples of explicit implementation are:

  • Article 5 para. 1 no. 2  of the Federal Immission Control Act (Bundes-Immissionsschutzgesetz), which obliges the operators of plants for which approval is required to take precautions against harmful environmental impacts and
  • The special precautionary duty in Article 5 para. 2 of the Federal Water Act (Wasserhaushaltsgesetz) which obliges those who are potentially at risk from floods to take their own precautionary measures against deleterious consequences.     

The precautionary principle takes a particular form in the statutory principle of concern which is already enshrined in law. This can be found, for example, in Articles 32 and 48 of the German Federal Water Act, which set strict standards for the protection of surface waters and ground water in the granting of permits under the terms of laws pertaining to water. Statutory regulations, which must also be included even in the absence of a specific reference to precaution are, for example, the general duty of care in section 5 (1) of the German Federal Water Act and the responsibility for products contained in section 23 of the Closed Substance Cycle Act (Kreislaufwirtschaftsgesetz). The precautionary principle is also implemented by those rules which impose an obligation to take environmental protection into account in planning, such as, for example, the regulations governing strategic environmental impact assessments contained in the German Federal Act on the Assessment of Environmental Impacts (Gesetz über die Umweltverträglichkeitsprüfung).