I am revising for my final year Environmental Law module and for some reason this particular subject has been the source of quite a few headaches this year!
I am preparing a practice question answer for the following questions:
‘Issues of uncertainty concerning environmental risk are problematic in legal contexts, although recourse to the “precautionary principle” offers a viable solution in certain circumstances’.
Discuss the above, and by reference to available case law, and offer an evaluation of the impact of the principle so far.
Consider the value or otherwise of the precautionary principle as an environmental protection regulatory mechanism, by reference as appropriate to decided cases in the EU and the UK.
I have done tons of reading and I could discuss the problems with the principle at length, however I am worried my structure is not quite correct.
This is what I am thinking so far:
-The Precautionary Principle
-influence of Rio Declaration
-How it is enshrined in EU law, e.g. 191(2) TFEU, and the Communication 2000
-Where it is recognised in UK law, This Common Inheritance 1999, etc
-Why it is appealing/appears sensible, but how it actually has the potential to paralyze innovation
-Application of the Precautionary Principle
-Broad range of interpretations makes it controversial/difficult to apply
-Strong precaution (prohibits action or inaction)
-Weak precaution (least restrictive version, humans practice this on a daily basis)
-International Agreements & Declarations
-1996 BSE crisis explains risk-averse climate in Europe
-Betatti(1998) established the role of the principle in law, but did not define, endorsed by Greenpeace (2000) and the BSE case (1998)
-2002 Commission Communication included BSE description
-Weaknesses/strengths of the Communication
-Used as a shield rather than a sword, Member States can invoke against free movement of goods
-Wide margin of appreciation too generous, thus is not conducive to achieving desired strength of environmental protection.
-Limits on judicial review reduce the usefulness of the principle
-No overarching duty to achieve the principle due to margin of appreciation.
-Effect of Duddridge
-Shield rather than sword effect
-Criticisms of the principle
-No specific triggering condition for the likelihood of risk, applied differently in different states and regions
-The paralyzing effect
-Potential to ban positive activities, thus havving a negative consequence on society, which is contrary to the aim of the principle. Self defeating.
I know this does look like a structure, but I am worried I am not really hitting the nail on the head so to speak. If anyone could give me some pointers, I would be greatly appreciative. I think I'm having a case of staring at something for too long.
Environmental Law & The Precautionary Principle Watch
- Thread Starter
- 14-04-2013 21:19