Notes from Underground: Proceed with Precaution, Part II


Notes from the underground blue 2Our prior Notes from Underground post offered Precautionary Principle 101. To reiterate, the Principle is simple and even obvious: one should not carry out a plan until one has some understanding of the likely consequences – that is, until one can be reasonably certain that enacting said plan will not lead to disastrous outcomes that outstrip the plan’s resulting benefits.

Like many legal principles, Precaution is a balancing test – measuring benefit versus the likelihood and potential gravity of risk. A greater benefit – such as reliable energy – may justify considerable risk. But significant potential risk to the well-being of most life on the planet will tilt the balance in any argument.

Upon reflection, all the previous Notes From Underground posts have Precautionary Principle implications. The best reason for the cancellation of the XL Pipeline (see here and here) is that its construction would contradict the necessary precaution against fossil fuel reliance by investing in long-term dirty energy infrastructure in place of sustainable, renewable energy. The Paris Climate Agreement relies on the Precautionary Principle (see here and here) via its foundational document, the United Nations Framework Convention on Climate Change, which declared that “the lack of full scientific certainty should not be used as an excuse to postpone action when there is a threat of serious or irreversible damage.”

But Fracking is the best example of where the fossil fuel industry has failed to use precaution (see here, here and here): the very practice would not exist if precaution had been taken to ascertain that the chemicals used in the process are safe, risk of groundwater contamination and increased seismic activity would be negligible, and leaky wells, pipelines, and storage facilities (see here) would be few and easily fixed.

On that last note, an apropos follow-up: the Aliso Canyon leak was plugged in February after spewing natural gas for 118 days. Now, however, California’s reliance on natural gas means the shut-down of the storage site could lead to blackouts this summer. Or at least SoCalGas has used that threat as leverage to try to open Aliso Canyon up for business again. The argument is that, due to insufficient natural gas availability, vast swaths of California may be deprived of air conditioning during some of the hottest days of the year. But if SoCalGas could just tap back into the storage facility that leaked for four months, there would be plenty of gas, and, of course, plenty of profit for SoCalGas.

A bit of Precaution could have avoided such eventualities. For instance, SoCalGas could have decided to replace the broken valve, the lack of which resulted in the leak. Or the state of California could have chosen not to give a single company or industry the ability to use its own hideous blunder to manipulate state energy policy, or could have opted to diversify the state’s energy grid in order to have less reliance on an energy source with the potential to leak hazardous fumes in the first place.

So, as can be seen, the Precautionary Principle can be very important indeed – perhaps most of all when it is ignored.

Three Reasons Fossil Fuel Companies Operate Without Precaution:

1. Historical Ignorance
There are many reasons the fossil fuel industry chooses to throw precaution to the wind – or, rather, to the injection well. One reason is historic: the coal and oil industries began when there was neither the scientific capability to fully understand the impacts of burning fossil fuels, nor acceptance of the fact that human activity could do severe environmental damage. So coal and oil were well entrenched before their impacts were widely recognized. For this, the industry can almost be forgiven – except that, as noted in our previous post, it has continued to act with impunity and deception in the decades since the threat of climate change came to its attention. This goes beyond a lack of precaution, and is explainable through another reason the fossil fuel industry has chosen to avoid using precaution: Greed.

2. The Economics of Avarice
What word other than greed, or an apt synonym, so clearly applies to corporations with incredible wealth that choose to ignore the warnings of their own scientists in order to continue to sell their dangerous products? If there were truly no alternative, perhaps, again, they could be forgiven. But since the lack of fully viable alternatives is largely the result of the industry’s own deception and its failure to invest in renewables and related technologies, forgiveness must be withheld.

Of course, the industry will make a “free market” argument – claiming, through the use of economic theories as old, outdated, and dangerous as the fuels they produce, that “the market” will decide what is best. The “invisible hand” will take care of everything.

This is a quaint, almost cute answer. Here are three reasons why the use of the Free Market argument here is bogus.

First, the market is manipulated by companies that are willing to obscure facts about their products’ impacts, or replace those facts with made-up, distorted, self-serving misinformation. The market can only be free if consumers have access to real, factual information. The usual way “facts” are established is by the scientific method: holding them up to scrutiny to see if they fly. Instead, slews of marketing experts and truth-twisters work hard to maintain the illusion that fossil fuels are not harmful to the environment.

Interestingly, the invented debate about climate change has served as a distraction to the countless other negative impacts of fossil fuel exploitation – from air pollution to oil spills to the fact that fossil fuel extraction jobs are among the most dangerous on Earth. But the consumer has been convinced to disregard these real problems and instead weigh the scientific evidence supporting anthropogenic climate change against made-up, industry-serving misdirection to determine whether burning billions of tons of carbon-based fuels could possibly lead to an excess of carbon in the atmosphere.

Second, in addition to manipulating information, companies externalize the costs of the harm they do to human health and the environment, so the real public cost of their products is not addressed by the market; it is instead generally paid by tax dollars. Corporations are, by and large, not poor. Yet they run up charges through consumption of public resources (as through exploitation of mineral rights on public lands), waste disposal (often with sweet deals that understate the real cost), and environmental harm (even successful lawsuits against polluters frequently fail to cover the total economic and environmental impact on affected communities). If the cost of healthcare for those injured or sickened through exposure to fossil fuel fumes, or of studying the impacts of fossil fuel consumption, or of mitigating against and adapting to the threats posed by climate change were factored into the prices we pay for gasoline and electricity provided by fossil-fuel-burning power plants, we would be far more anxious to seek out and develop energy sources with smaller price-tags.

Third, impacts on health and the environment often take a long time to develop or identify (especially when misinformation distracts the public), and so the market cannot adjust – that is, people will not reject a product – until potentially permanent harm is already done. When the development of renewable energy has been suppressed, the rejection of fossil fuels appears unfeasible. We are therefore doomed to await the symptoms we might have avoided given the choice, and given genuine information. In an actual free market, fossil fuel use would be kept to a minimum until we discover a way to mitigate the harm it causes in a cost-effective way. Consumers would demand sustainable energy production.

One might argue that the market is only free if companies are allowed to distort facts and avoid costs. But, if one has any ethics at all, this is an argument for regulation, and against a truly “free” market. All this to say, in this sense there really is no free market. But we can either have a market where those with wealth can create their own facts and avoid paying for the harm they cause – free, then, for the large producer, but not for the small producer or the consumer – or we can regulate for safety, punish for untruthfulness, and force industry to pay the costs it would otherwise force onto the public.

3. A Weak Approach to a Strong Principle
The other primary way that the Precautionary Principle is thwarted by the fossil fuel industry is the most insidious: the Orwellian distortion of what the Principle means.

Yes, there are really two “Precautionary Principles.” The two are distinguished as the “strong” or “weak” principle, or sometimes “European” versus “American.” The “strong,” “European” version is the principle discussed heretofore. The “weak” version is sometimes called “the precautionary approach” – an “approach” obviously being more tame and malleable than a “principle.”

Whereas the principle states that risk avoidance is paramount, the approach pauses first to ask: “but how much money is at stake?” Yes, the justification for ruining the atmosphere is based on the economic notion rebutted above: there is a lot of money to be made by doing so. This shallow argument, however, carries surprising weight.

In a legal context, it is a question of burden of proof. The principle places the burden on the corporation to demonstrate, through extensive testing and research, that its products appear to be safe for human health and the environment. Furthermore, if it later turns out that its products are (or could be) resulting in unexpected harm that outweighs its benefits, the corporation must discontinue the product.

The approach places the burden on the victim to prove that the corporation caused the harm.

Does this seem reasonable? Does this even seem efficient? In theory, an individual, with very limited resources (such as time and money), would have to suffer harm, trace the harm to the corporation’s actions, and then muster a lawsuit to show the guilt of a corporate entity with millions of dollars and a team of hotshot lawyers at its disposal. By the time the first victim manages to get into court, how many more have suffered harm? The principle holds that the corporation must try to avoid harm – not only for its bottom line, but also out of ethical concern for the public. The approach, favored by the fossil fuel industry, declares that a little bit of harm to the public is okay.

In reality, of course, we are not talking about “a little bit of harm.”

To Protect and Preserve
Logic tells us that the universally accepted harms of fossil fuel use should be enough to raise questions and urge us to search for better options, even disregarding climate change. But climate change ups the ante. The scientific consensus is that it is real, it is the byproduct of human activity, and it poses an existential threat to life on the planet. The strongest counter-argument is “but maybe it isn’t (even though we have no other explanation for rising global temperatures that coincide precisely with the start of the Industrial Age).” The Precautionary Principle requires that we explore the questions thoroughly and in an unbiased, scientific way before proceeding with our incredible consumption.

The Principle declares that every action we take should be taken only in consideration of likely consequences. It insists that risks and costs should be assessed up front, as thoroughly as possible. Its use is essential to sustainability: to be “sustainable,” effective risk assessment is needed; that which presents considerable unexamined risk cannot be said to be “sustainable.” Any conversation about prolonging our future must take account of the Precautionary Principle. The fossil fuel industry is long overdue for joining this conversation.


Environmental Counsel Adam Arnold worked with GAP’s clinical program while earning his J.D. from the University of the District of Columbia’s David A. Clarke School of Law, is a member of the Maryland Bar, and has an LL.M. in International Environmental Law and International Organizations from American University’s Washington College of Law.

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