A farmer growing soft fruit needs a source of water for irrigation purposes. Traditionally, the water has been sourced from either ground water or surface (river) water. Some sources of water are contained in conservation areas protected by the Habitats Regulations. Farmers wanting to abstract water need a licence from the Environment Agency. Under the Habitats Regulations, the Agency has an obligation to maintain/restore conservation sites. Through its restoring sustainable abstraction programme, the Agency is performing its conservation obligation by refusing, revoking, or reducing licences, relying on the precautionary principle to do so.
Here we trace the passage of the precautionary principle into UK law post-Brexit to see whether a regulator such as the Agency can invoke the principle relying on a hypothetical analysis of risk only.
While there is no single definition of the precautionary principle, the European Environment Agency provided the following definition in its second “late lessons from Early Warnings report”.
“The precautionary principle provides justification for public policy and other actions in situations of scientific complexity, uncertainty and ignorance, where there may be a need to act in order to avoid, or reduce, potentially serious or irreversible threats to health and/or the environment, using an appropriate strength of scientific evidence, and taking into account the pros and cons of action and inaction and their distribution”.
The precautionary principle became a bedrock of EU law when the Maastricht Agreement establishing the European Union was concluded in 1992, providing that EU environmental policy shall be based, inter alia, on the precautionary principle. This proviso is now enshrined in Article 191 of the Treaty on the Functioning of the European Union.
So, prior to Brexit, the Agency would assess the impact of water abstraction on conservation sites through the lens of the precautionary principle – that is, intervention is justified on the ground that it is better to be safe than sorry.
But, with Brexit, was the precautionary principle left behind? No, is the short answer. First, under the maintenance of environmental principles contained within the Withdrawal Act 2018, the Secretary of State for Defra was charged with publishing a draft bill of environmental principles, including “the precautionary principle so far as relating to the environment”. Secondly, the Environment Bill which followed this charge reiterates that the Secretary of State must prepare a policy statement on environmental principles which includes, inter alia, “the precautionary principle, so far as relating to the environment”.
So, in due course, the precautionary principle will become enshrined in future with environmental law. In the meantime, the Agency is invoking the principle when deciding to refuse, revoke or reduce licences.
This leads to the more immediate question of whether a regulator can intervene on grounds of pure hypothetical risk? The short answer is no.
“However, even in its strictest application of the precautionary principle, the CJEU has insisted that protective measures ‘cannot properly be based on a purely hypothetical approach to risk, founded on mere conjecture which has not been scientifically verified’. EU institutions are not permitted to predicate their actions upon pursuit of a ‘zero-risk’ level of protection, where this includes the adoption of measures to guard against non-scientifically verified, hypothetical, risks”.
So, if an abstractor is informed that their licence is to be refused, revoked, or reduced in circumstances invoking the precautionary principle, what can they do? There are four broad elements in challenging interference which relies on the precautionary principle:
1. Unlike a manufacturer taking a new insecticide to market, an abstractor is not faced with a reversed burden of proof from the outset. In other words, whereas the manufacturer must prove the safety of the new insecticide from the outset, it is for the Agency to support its case for intervention with some scientific and technical basis.
2. There may be scope with the help of experts to challenge the scientific and technical basis underpinning the case for intervention.
3. There may be scope for saying that intervention should be less and/or tapered over time to enable abstractors to transition to alternative sources of supply, often involving the building of a winter reservoir.
4. (linked to 3) As far back as the year 2000, the European Commission identified several “general principles of risk management” concerning the invoking of the precautionary principle, saying it does not exempt a regulator from applying them. One of the principles is the “proportionality principle”. This principle involves the question whether an intervention strikes a balance between the protection of the environment on the one hand and the economic interests of soft fruit growers who need a supply of water on the other. So, there may be scope for saying to the Agency that its planned intervention leans too heavily towards protecting the environment having regard to economic interests.
Ultimately, intervention can be challenged via a public inquiry, but an appellant abstractor should think carefully about basing their appeal solely on the footing that no intervention is justified. Faced with the precautionary principle, that is a hard case to fight. A challenge needs to be strategic and should be based on alternative positions.
Finally, any challenge to intervention needs to be supported by scientific and technical evidence which cannot be compiled at short notice. In other words, do not leave preparing for a challenge until a formal decision notice from the Agency is posted.