Environmental Impact Assessment and the Precautionary Principle: Legislating Caution in Environmental Protection

Abstract

Anoteworthy feature of international environmental discourse since the late-1980s has been the shift toward anticipatory policies. Precaution is the leading policy approach that has emerged to guide environmental decision-makers confronted with inadequate information. The “precautionary principle” has found expression in Australia in the 1992 Intergovernmental Agreement on the Environment, various Commonwealth environmental management strategies and a number of pieces of Commonwealth and State legislation. It also has been accepted tentatively by the courts as a factor which should be taken into account in appropriate circumstances. However, existing Australian environmental management approaches fail to advance precaution in a substantive manner. Most hope for the advancement of precaution has rested on its potential to be a mandatory consideration by ministerial authorities when exercising planning powers. However, courts have cast doubt on the legal status of the principle because of the typically weak formulations of it in legislation and policy documents. In this article, a method is suggested by which the principle could be integrated systematically in environmental planning so that it could be given effect in environmental management practice. The writer proposes that environmental impact assessment (EIA)—Australia's foremost environmental protection regime—should be modified to give effect to the precautionary principle. A three-step method by which this could be achieved is presented. First, the EIA trigger of environmental ‘significance’ must be broadened; second, uncertainties must be assessed; and third, environmental uncertainty must have greater influence in decision-making.