Volume 19 Issue 1 Article 1 2008 Derogating the Precautionary Principle A. W. Harris Follow this and additional works at: https://digitalcommons.law.villanova.edu/elj Part of the Environmental Law Commons Recommended Citation A. W. Harris, Derogating the Precautionary Principle, 19 Vill. Envtl. L.J. 1 (2008). Available at: https://digitalcommons.law.villanova.edu/elj/vol19/iss1/1 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Environmental Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Harris: Derogating the Precautionary Principle VILLANOVA ENVIRONMENTAL LAW JOURNAL VOLUME XIX 2008 NUMBER 1 DEROGATING THE PRECAUTIONARY PRINCIPLE A. W. HARRIs* I. INTRODUCTION A. Assessment and Attribution In early 2001, the Intergovernmental Panel on Climate Change' (IPCC) issued its Third Assessment Report 2 consisting of * Professor of Political Science, Department of Government & Politics, Hum- boldt State University, Arcata, Cal. My sincere thanks to Eric Matheson, Alyson Walker, Editors-in-Chief, Kevin Hubbard, Managing Editor of Outside Articles, and the Associate Editors of the Villanova Environmental Law Journal, for their helpful comments and their patience. This article could not have been completed without their assistance. Any and all errors or omissions are solely my responsibility. 1. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, INTRODUCTION, INTER- GOVERNMENTAL PANEL ON CLIMATE CHANGE (IPCC), 1 (2004), available at http:// www.ipcc.ch/about/faq/IPCC%201ntroduction.pdf (explaining formation of IPCC). The World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP) jointly established the IPCC in 1988 in response to growing concerns within the atmospheric sciences community regarding the observation of increasing concentrations of greenhouse gases (GHGs) in the at- mosphere. See id. GHGs are "those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation." United Nations Framework Convention on Climate Change, art. I, May 9, 1992, 31 I.L.M. 849 (UNFCCC). 2. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2001: SYNTHESIS REPORT (Robert Watson et al. eds., Cambridge University Press 2001) (discussing recent revelations in climate change); see also WORKING GROUP I TO THE THIRD ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS (J.T. Houghton et al. eds., Cambridge University Press 2001) (WORKING GROUP I), available at http:// www.grida.no/climate/ipcc-tar/wgl/index.htm (analyzing scientific data on cli- mate); IPCC, CLIMATE CHANGE 2001: IMPACTS, ADAPTATION, AND VULNERABILITY (JamesJ. McCarthy et al. eds., Cambridge University Press 2001), available at http:/ /www.grida.no/climate/ipcc-tar/wg2/index.htm (containing IPCC's Formal Statement concerning impact of climate change); see also IPCC, CLIMATE CHANGE 2001: MITIGATION (Tariq Banuri et al. eds., Cambridge University Press 2001), available at http://www.ipcc.ch/pub/wg3spm.pdf (discussing climate change mitigation). Published by Villanova University Charles Widger School of Law Digital Repository, 2008 1 Villanova Environmental Law Journal, Vol. 19, Iss. 1 [2008], Art. 1 2 VILLANOVA ENVIRONMENTAL LAW JOURNAL [Vol. XIX: p. I three separate parts authored by separate working groups. 3 In the volume of the subsection titled "The Identification of a Human In- fluence on Climate Change," Working Group I stated the following: Detection is the process of demonstrating that an observed change is significantly different (in a statistical sense) than can be explained by natural variability. Attribution is the process of establishing cause and effect with some defined level of confidence, including the assessment of compet- ing hypotheses. 4 The IPCC's mandate, or its "terms of ref- erence []" includes the responsibility "to assess available scientific and socio-economic information on climate change and its impact and on the options for mitigating climate change and adapting to it and ... to provide, on request, scientific/technical/socio-economic advice to the Conference of the Parties (COP) to the United Nations '5 Framework Convention on Climate Change. The IPCC's mission includes the need to gauge the anthropogenic or human-induced contribution to climate change and its impact, and making a determination whether "a human influence on cli- mate change to date can be identified. '6 To make this determina- tion, the IPCC stresses the importance of being able to eliminate, 3. See Robert Watson et al., CLIMATE CHANGE 2001: SYNTHESIS REPORT (2001) (summarizing IPCC's Third Assessment Report). The Third Assessment Report was produced in three volumes, with each Working Group authoring one of those. See id. Working Group I was responsible for evaluating the scientific research on climate change; Working Group I authored the first volume, THE SCIENTIFIC BASIS. See id. Working Group II was responsible for evaluating the vulnerability of natural and human systems to climate change and produced the second volume, IMPACTS, ADAPTATION, AND VULNERABILITY. See id. Working Group III was responsible for evaluating the ability of human society to mitigate the consequences of climate change, and produced the third volume, MITIGATION. See id. 4. See D. L. Albritton et al., Technical Summary, in CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS: CONTRIBUTION OF WORKING GROUP I TO THE THIRD ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE at 55 (emphasis in original) (defining detection and attribution). 5. See Working Group I, supra note 2, at vii (defining terms for discussion). The IPCC interprets "climate change" as referring to "any change in climate over time, whether due to natural variability or as a result of human activity." See id. The UNFCCC, on the other hand, prefers to view climate change as referring to a change of climate that is "attributed directly or indirectly to human activity that alters the composition of the global atmosphere and that is in addition to natural climate variability observed over comparable time periods." See UNFCCC, supra note 1, art. 1(2), 31 I.L.M. at 851. This article will utilize the IPCC interpretation of the term "climate change" unless specifically noted otherwise in the text or in a footnote. 6. See Albritton et al., supra note 4, at 55 (discussing IPCC goal of identifying human effects on climate). https://digitalcommons.law.villanova.edu/elj/vol19/iss1/1 2 Harris: Derogating the Precautionary Principle 2008] DEROGATING THE PRECAUTIONARY PRINCIPLE with a reasonable degree of confidence, many of the possible alter- native (non-anthropogenic) influences on climate change. 7 Specif- ically, the IPCC states: The attributionof climate change to anthropogenic causes involves statistical analysis and the careful assessment of multiple lines of evidence to demonstrate, within a pre- specified margin of error, that the observed changes are: unlikely to be due entirely to internal variability; consis- tent with the estimated responses to the given combina- tion of anthropogenic and natural forcing;8 and not consistent with alternative, physically plausible explana- tion of recent climate change that exclude important ele- ments of the given combination of forcings. 9 The IPCC contends it has made substantial headway in attribut- ing recent observable changes in the global mean surface tempera- ture, at least in part, to anthropogenic activity.' 0 Despite uncertainties in estimating the extent of the signals from natural climate variation and sulphate aerosols,11 "almost all studies are nevertheless able to detect the presence of the anthropogenic greenhouse signal12 in the recent climate record."13 The IPCC also asserts climate change has negatively impacted many of this planet's environmental systems. 14 7. See id. at 55-56 (providing IPCC policy for analyzing climate change). 8. See WORKING GROUP I, supra note 2, at 5, n.8 (defining radiative forcing). The IPCC defines a "forcing," or more formally, a "radiative forcing," as "a mea- sure of the influence a factor has in altering the balance of incoming and outgoing energy in the Earth-atmosphere system, and is an index of the importance of the factor as a potential climate change mechanism." Id. 9. See Albritton et al., supra note 4, at 56 (describing reasoning for statistical inferences). 10. SeeJames E. Hansen, Head, NASA Goddard Inst. For Space Studies, Ad- dress before the Committee on Commerce, Science and Transportation (May 1, 2001), available at http://www.hq.nasa.gov/office/legaff/hansen5-1.html (last vis- ited Oct. 24, 2007) (discussing aerosol). "Aerosols tend to increase the number of cloud droplets, thus making the clouds brighter and longer-lived. All of the aerosol effects have large uncertainty bars, because our measurements are inadequateand our under- standing of aerosol processes is limited." Id. (emphasis added). 11. For a discussion of airborne particles, see infra note 53 and accompanying text. 12. For a discussion of the term "signal", see infra notes 42-64 and accompany- ing text. 13. See Albritton et al., supra note 4, at 59 (analyzing impact of signals pro- vided by recent studies). 14. See Stephen Schneider et al., Overview of Impacts, Adaptation, and Vulnerabil- ity to Climate Change, in McCarthy et al., supra note 2, at 83 (stating