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Throwing caution to the wind

in Power and Dissent by

In the not so distant future, there will be a review process to determine if fracking is to be allowed on the west coast of Newfoundland. This review process will take the form of an environmental assessment that will, though it pains me to say, likely give fracking the go-ahead.

A Jan. 30 presentation by industry proponents, hosted by Memorial University’s Harris Centre in Corner Brook, served as an indication of the skewed logic that will be common in the public discourse, though this compartmentalization of supposedly different aspects of the fracking process is not necessarily the primary concern with regard to the environmental review. The outcome of the review will not hinge as much on the integrity of the scientists and policy makers involved in the process as it will on the parameters imposed on the study and the way it is undertaken. Fracking will potentially be approved because of the methodology used for the environmental assessment process itself, and specifically the way policy makers are directed to interpret the “precautionary principle”.

Precaution can be weak

The precautionary principle has been at the centre of environmental discourse since the late 1970s and is a recognized principle in both Canadian and international law. But it has also been a point of much controversy and uncertainty with regard to what exactly “precaution” implies. Before getting into more specific details, let us pause for a pop quiz:

What do you think the precautionary principle implies as it relates to environmental assessment?

  1. Where there are uncertain risks or hazards, a particular project should not proceed.
  2. Where there are uncertain risks or hazards, a particular project should proceed.
  3. Both 1 and 2.
  4. None of the above.
  5. All of the above.

If you picked 5, then you are (mostly) correct. The precautionary principle is so widely interpreted and so variously stated that in some of its applications it is basically meaningless. Nonetheless, most governments and government agencies conducting environmental assessments feel compelled to state some jargon on precaution when describing methodology. Here is a sample from the Government of Canada and the Government of Newfoundland and Labrador, cited from a document about environmental assessment guidelines for the Nalcor Labrador-Island transmission link:

One of the purposes of environmental assessment is to ensure that projects are considered in a careful and precautionary manner before action is taken in connection with them in order to ensure that such projects do not cause significant adverse environmental effects. Principle 15 of the 1992 Rio Declaration on Environment and Development states that “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.”

This formulation of the precautionary principle from the 1992 Rio Declaration is sometimes called the “weak version” because it allows for measures to be taken to attempt to mitigate risks, even while there is uncertainty about what those risks actually are. This is the version of the precautionary principle most often found in documents relating to environmental assessment from the Government of Newfoundland and Labrador. This understanding of precaution is precisely why the review of fracking may well favour letting the controversial practice into the province, even while risks and uncertainty are present.

Precaution can be strong

The “strong version” of the precautionary principle, on the other hand, holds that where uncertainty of potential risks is present, then activities should not proceed. This is an approach to precaution that says, ‘Why take the risk?’ It is better, from this point of view, to err on the side of caution rather than debate what constitutes acceptable risks or countermeasures. One formulation of the strong precautionary principle is found in the United Nations’ World Charter for Nature, to which Canada is a signatory:

Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed.

The important difference between this wording and the Rio Declaration wording cited by the Government of Newfoundland and Labrador is, once again, the way it directs policy makers to act based on the outcomes of environmental assessments. One will approve projects with uncertain risks, while the other will not.

All this to say, in the end it will not so much be about the findings of the review of fracking in NL (which will likely be the same as the findings of the independent assessment commissioned by the CNLOPB, which says quite clearly there are risks and uncertainties with fracking). Instead, the decision to approve fracking will hinge on the interpretation of the precautionary principle, and is in some sense a foregone conclusion.

This is certainly not to say, in the words of the Borg, that resistance is futile. In fact, it seems the only thing that will prevent fracking in NL is sustained public pressure and wide-spread popular dissent.

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