Perils of 'The Precautionary Principle' in Environmental Law

Forbes

2 days ago

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In a rare show of unity on May 29, 2025, The U.S. Supreme Court justices ruled 8-0 in favor of limiting the scope of the National Environmental Policy Act (NEPA) The court recognized that despite many noble intentions, the law has been misapplied as an ideological stalling tool against not only resource extraction projects but also renewable energy projects. All court justices appeared to acknowledge that there is a big difference between responsible environmentalism and environmental obstructionism. This case is particularly notable since it involved a fossil fuels pipeline project in Utah and the three liberal justices could have used this as a way to make a statement on the salience of climate change. Yet, all justices rightly recognized that the law has been misapplied, albeit there was a less strident concurrence submitted by the three liberal justices in the case.
While at its surface this decision may be about 'process' but there is an underlying realization by the justices that modern environmentalism has become risk averse beyond a 'broad zone of reasonableness.' The court has indirectly taken a swipe at the 'precautionary principle' which emphasizes taking proactive measures to protect the environment in the face of uncertainty. The origins of this principle can be found in the German concept of Vorsorgeprinzip, which by some measures is better translated as the 'foresight principle.' Such a translation suggests a positive anticipatory action rather than a negative status quo decision, but the essential element is social risk aversion in the context of environmental harm. Yet it is important to note that the absence of evidence of harm is not the same thing as evidence of the absence of harm.
The United Nations Conference on Environment and Development (Rio Summit), in 1992, put forward an 'Agenda for the 21st Century' (called Agenda 21) where 'Principle 15,' enshrined this precaution as follows: 'In order to protect the environment the Precautionary Approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation.' Although this principle has normative value as an ethical aspiration, operationalizing it in the context of maintaining social order in a complex environment of competing goals is next to impossible. For example, if we followed this principle to its core, there would be no process of clinical trials for drug development.
Nevertheless, the precautionary principle provides an alternative to reactive decision-making, which might cause irreversible harm to Earth's ecosystems and the communities who rely on those natural resources. Ecological concerns such as climate change might also fall into this category. However, communicating risks to the public in such circumstances of fear and activism can lead to 'social amplification' as was argued by geographer Roger Kasperson in his seminal work on this topic. Uncertainty and doubt become a defining excuse for inaction or a 'precautionary pause,' as has been argued in cases for moratoria for various technologies (which I have argued elsewhere need to be considered on a case-by-case basis).
Lack of 'enough' data, and hence the need for more research or expertise, has often been used as a stalling tool. Such interventions span the full spectrum of views around our ecological predicament. On the one hand, uncertainty arguments on impacts are used by the fossil fuel industry to perpetuate the status quo around carbon emissions. On the other hand, many environmentalists have used uncertainty about the safety of nuclear technology to call for its phase- out. If we keep unpacking arguments for and against a particular technology, the conversation spirals into a battle of uncertainties. Precaution operates on a spectrum, as with any human endeavor, and the 'precautionary principle' cannot be used as an excuse for indefinite inertia in a world with competing challenges. Caution is in order, but indeterminate precaution is an untenable postulate that can lead to 'paralysis by analysis.'
In their landmark book the 1983, Risk and Culture, Mary Douglas and Aaron Wildavsky
alerted us to the deceptive objectification of risk. Ultimately, risk in a complex
world of competing and intersecting phenomena is a socially constructed phenomenon.
Going back to the Bible, they note that the dietary laws of Leviticus may have
stemmed from some degree of medical materialism but were ultimately about a cultural
delineation of boundaries and the social construction of risk. Another curious
insight from Douglas and Wildavsky's work is how 'dirt' is a form of disruption to
socially constructed order and, even when it is harmless— or perhaps even helpful
in the case of nutrient transfer to arable land— it is deemed impure and repugnant.
The authors of this classic collaboration between an anthropologist (Douglas) and a political scientist (Wildavsky) maintained that, strategically, keeping a balance between
anticipating harm and trusting resilience is the essence of managing risk.
The law of diminishing returns can be applied to this process, whereby each marginal risk prevention effort does not reap concomitant rewards. Douglas and Wildavsky showed that excessive safety targeted at a particular technology like nuclear power implementation could undermine overall systems' safety because alternatives can appear more attractive than they actually are when considering the full scale and scope of return on investment. The economic marginalization of nuclear power is an intriguing case in point. Massive safety upgrade requirements to existing nuclear power plants have rendered them uneconomical, thereby making the climate mitigation targets more challenging to reach in the short- term as other low carbon sources are up- scaled.
For functional purposes, a systems science approach is needed to consider the way forward for evaluating risks. For a certain narrow class of outcomes that could lead to system-wide 'ruin,' even in low probabilities, risk analyst Nassem Taleb (author of the bestselling Incerto series of books including The Black Swan) has argued that the precautionary principle can be applied for decisions. However, defining 'ruin' remains subjective as apocalyptic narratives can too easily be used in environmental activism for this purpose in areas like GMOs or nuclear energy. Instead of such subjectivity which would again take us down the paralysis path, what is more appropriate is to have an incrementalist approach to adaptive decision-making that can quickly act on specific contingencies emerging. The Australian researcher Jayden Hayman has suggested such an adaptive management approach to environmental regulatory decisions on controversial developments such as deep-sea mining.
Coming back to the implications of the Supreme Court verdict, regulatory agencies will now be able to have more effective rulemaking without the constant shadow of cascading lawsuits that are predicated on a misapplication of the precautionary principle. One of my mentors from graduate school days, law professor Daniel Esty argued for such 'optimal environmental governance' approach to improving regulatory performance in a seminal paper many years back. Indeed, even environmental organizations recognized the challenge of operationalizing precaution, particularly around biodiversity conservation. The International Union for Conservation of Nature (IUCN) recognized that inevitably there would be a 'value-based balancing' of tradeoffs involved in operationalizing the precautionary principle. Paradoxically, precaution when applied with specious slippery slope arguments, itself can lead to perilous outcomes for societal innovation and sustainability.