Science and the Law webinar, presented by Richard Broadbent, Principal Solicitor at Natural Engalnd.

1. Science and the Law
Richard Broadbent, Principal Solicitor
2 December 2014
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2. Introduction
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3. What is Natural England?
Our remit
• Natural England is here to conserve and enhance the natural
environment for its intrinsic value, the wellbeing and enjoyment of
people and the economic prosperity that it brings
• Natural England's general purpose - to ensure that the natural
environment is conserved, enhanced and managed for the benefit of
present and future generations, thereby contributing to sustainable
development

4. What is Natural England?
• Natural England is the statutory advisor to the Government on nature
conservation in England and promotes the conservation of England’s wildlife
and natural features
• It is financed by Defra, but it forms its own views based on the best scientific
evidence available
 Natural England is a statutory consultee in respect of (amongst other
things):
 proposals falling under the Environmental Impact Assessment
Regulations in England
 proposals likely to damage a Site of Special Scientific Interest
 plans or projects likely to have a significant effect on any European site.
European sites include Special Protection Areas and Special Areas of
Conservation or sites listed under the 1971 Convention on Wetlands of
International Importance (Ramsar sites)

6. The Problem – environmental law as ‘hot law’
E. Fisher, Environmental Law as ‘Hot’ Law, Journal of Environmental
Law 25:3 (2013), 347-358
The p o ly c e ntric , inte rd is c ip lina ry , no rm a tive a nd s c ie ntific a lly
unc e rta in na ture o f e nviro nm e nta l p ro ble m s le a d s to a bo d y o f
e nviro nm e nta l law in which it c a n be d iffic ult to s e ttle o n a
s ing le fram e fo r und e rs ta nd ing a p ro ble m a nd thus to id e ntify
re le va nt p a rtie s , the re la tio nship s be twe e n the m , a nd the
c o urs e s o f a c tio n tha t c a n be ta ke n.
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7. Hot situations’ leading to ‘hot law’
Environmental law is
thus a subject in
which ‘reassured
certainties
give way to
tormented
complexities’.
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‘…struck by the contrast
between the relative simplicity
of the basic objectives, and
the complexity of machinery
by which we try to give them
effect’.
‘…many environmental
law issues are not just
‘controversial’, but that
the controversies are
structural and
foundational’.

8. Science
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9. The scientific method
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The game of science is, in
principle, without end. He who
decides one day that scientific
statements do not call for any
further test, and that they can be
regarded as finally verified, retires
from the game.
Karl Popper

10. What is science?
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Hunts for
error.
No simple
definitive
answers.
Knowledge
is tentative
(e.g. 95%
confident)
Falsifiable,
corrigible,
progressive.
Reflexive. An interconnected series of
concepts and conceptual schemes
that have developed as a result of
experimentation and observation
and are fruitful of further
experimentation and observation.

11. The scientific method
• Deductive and inductive forms of reasoning
• Where knowledge is uncertain or incomplete we can rely on
inductive reasoning to help us make sense of it
• I.e. the conclusion follows with high probability from the information
in the premise (or the premises) of the argument
– P1: Most As are B
– P2: C is an A
– C: Therefore, C is likely to be B
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P1: Most little dogs are
yappy.
P2: Fido is a little dog.
C: Therefore, Fido is likely
to be yappy.

12. Inductive reasoning
• Inductive reasoning is:
– Based on samples
– Relies on analogies or comparisons to reach a conclusion
• Either strong or weak based on whether the conclusion follows
with a high degree of probability from the premises
Therefore it is:
1. Inherently uncertain
2. Predictive in nature
3. Not always easy to determine whether an outcome is or is not
highly likely based on the available information
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13. The role of scientists
• Scientists are duty bound to demonstrate where there are
uncertainties
• Uncertainties can be lost when we over simplify
• Cannot give us absolute certainty. Rather it gives us degrees of
confidence (high, moderate, or low) based on probability – i.e. a
strong argument or a weak argument
“We believe it is essential that environmental policies should have a sound scientific
basis … There is, however, a widely held view, even an expectation, that scientists
can provide the answer to whatever issues are under consideration. Science is not a
matter of certainties but of hypothesis and experiments. It advances by examining
alternative explanations for phenomena, and by abandoning superseded views. It has
provided very powerful tools for gaining understanding of complex environmental
processes and systems. At the same time there are many cases … in which damage
has been caused to health or the natural environment because of gaps in
understanding. Such incompleteness is inherent in the nature of science, especially
environmental science, which deals with ‘the world outside the laboratory’.
RCEP 21st Report: Setting Environmental Standards (1998), para 2.66 13

14. Scientific confidence and uncertainty
• Common forms of uncertainty:
– Value uncertainty
– Structural uncertainty
– Unpredictability
• European Commission examples of what causes uncertainty:
– The variable chosen
– The measurement made
– The sample drawn
– The models used
– The causal relationships employed
– Controversy on existing data or lack of some relevant data
• Scientific confidence is undermined by uncertainty (uncertainties
which the (good) scientist must point out)
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15. The Law
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16. Reconciling scientific uncertainty in a legal
framework: The Precautionary Principle
Principle 15 of the Rio Declaration, 1992
•“In order to protect the environment, the precautionary approach shall
be widely applied by States according to their capabilities. 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” (weak version because measures
whose benefits are outweighed by the costs would not need to be
taken under this formulation)
Article 191(2) of the Treaty on the Functioning of the European Union
•Union policy on the environment shall be “based on the precautionary
principle”
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17. European Commission Communication on the
Precautionary Principle 02.02.2000
The precautionary principle should be considered within a
structured approach to the analysis of risk:
•risk assessment
•risk management
•risk communication
Not confuse the principle with the element of caution that scientists
apply in their assessment of scientific data
It applies where potentially dangerous effects deriving from a
phenomenon, product or process have been identified, and that
scientific evaluation does not allow the risk to be determined with
sufficient certainty
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18. European Commission Communication on the
Precautionary Principle (continued)
• Start with a scientific evaluation, as complete as possible, and
where possible, identifying at each stage the degree of scientific
uncertainty
• Decision-makers need to be aware of the degree of uncertainty
attached to the results
• Judging what is an "acceptable" level of risk for society is an
eminently political responsibility
• The scope of the precautionary principle in part depends on trends
in case law, which to some degree are influenced by prevailing
social and political values
• An analysis of the precautionary principle reveals two quite distinct
aspects: (i) the political decision to act or not to act as such, which is
linked to the factors triggering recourse to the precautionary
principle; (ii) in the affirmative, how to act, i.e. the measures
resulting from application of the precautionary principle
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19. Principles which should underpin the application
of the precautionary principle
• Proportional – tailoring measures to the chosen level of protection
• Non-discriminatory – comparable situations should not be treated
differently, and that different situations should not be treated in the
same way
• Consistent – measures should be of comparable scope and nature
to those already taken in equivalent areas in which all scientific data
are available
• Based on a comparison of the risks and benefits associated with
various possible alternatives, both in the short and long term.
• Subject to review – in the light of new scientific data
• Capable of assigning responsibility for producing the scientific
evidence necessary for more comprehensive risk assessment
• Transparent – important given uncertainty and provisional solutions.
• Burden of proof with the applicant
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20. Pfizer Animal Health SA v. Council of the
European Union [2002] ECR II-3305
• Applies in a situation of scientific uncertainty, when a risk
assessment cannot provide the decision-maker with conclusive
scientific evidence of the reality of the risk or the seriousness of the
potential adverse effects were that risk to become a reality
• Can take preventative action without having to wait
• Cannot be based on a purely hypothetical approach to the risk …
founded on a mere conjecture which has not been scientifically
verified – must be backed up by the scientific data available at the
time – therefore must be a scientific assessment
• No to “zero-risk” – i.e. not have to establish positive proof of
absolute safety
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21. Reflections on the Precautionary Principle
• Complex
• Primarily procedural
• Facts alone not justify a decision. Creates space for non-scientific
arguments to inform the debate and form a basis for decision
making
• Therefore interpretation and application raises questions about the
values of decision makers – part of a political process, involving
democratic deliberation
• Reflects EU’s approach to environmental law which is to separate
out facts from values in decisions and create space for both in
environmental law and policy – separation between provision of
expertise and the political responsibility for decisions
• But – are the two fields kept separate? Tensions between two types
of reasoning – technical expertise and politics
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22. Landelijke Vereniging tot Behoud van de
Waddenzee v Staatssecretaris van Lanbouw,
Natuurbeheer en Visserij, C-127/02
Likely Significant Effect (Article 6(3))
•There must be an appropriate assessment unless, on the basis of
objective information, it can be excluded that the plan or project will
have a significant effect on the site, either individually or in combination
with other plans or projects [Waddenzee, para 45].
Appropriate Assessment
•In undertaking an appropriate assessment, all the aspects of the plan
or project must be identified in the light of the best scientific knowledge
in the field [Waddenzee, paras 54, 61].
Adverse Effect on Integrity
•Competent authority must be convinced /certain/made sure that
the scheme will not adversely affect the integrity of the site. No
reasonable scientific doubt remaining [Waddenzee, para 56, 59, 61].
No alternatives/IROPI (Article 6(4))
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23. Other approaches to regulation in
environmental law and policy
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24. Overview of themes in environmental policy
Command and
Control
Procedural/
flexible/
’experimental’/
Governance
Reflexive
Approaches –
voluntary
mechanisms
Economic
Instruments
Definition Top down
Regulation/Standards
Governance
Approaches -
deregulatory
Self -regulation Market incentives
Characteristics/
Elements
Uniformity/quantative
Licenses
Standards
Flexible
More tolerant of risk
Problem
identification
Bottom up
Internalisation of
externalities
Market failure
Examples Drinking Water Directive Water Framework
Directive/IPPC/EIA
EMAS Eco
Labelling
Emissions Trading
Regime
Rule of
Law/Policy
Require licence, standards
Provides sanction
Provide information
Framework for
debate. Create
values.
Embedding values.
Information
provision
Regulatory paradox –
need regulation to start,
but relies on free
market.
Rationale Scientific/expert led best
technique
Efficiency lessens
‘implementation gap’
– input legitimacy
Environmental
citizenship.
Green awareness
CSR
Internalise externalities
Efficiency
Incentive for R&D
Participative
Nature
Government led In theory lightly
participatory – but
opaque.
Consumerism Not very transparent/
participatory.
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25. The Water Framework Directive
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Response
to the
Sandoz
spill
Good
(ecological)
status
Intercalibration
Scope for
public
participation
Reflexive,
iterative
River Basin
Plans
Just a
talking
shop?

26. Public Participation: The Aarhus Convention 1998
Although regional in scope, the significance of the Aarhus Convention
is global. It is by far the most impressive elaboration of principle 10 of
the Rio Declaration, which stresses the need for citizens' participation
in environmental issues and for access to information on the
environment held by public authorities. As such it is the most ambitious
venture in the area of "environmental democracy" so far undertaken
under the auspices of the United Nations.
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27. Other examples…
• Environmental Impact Assessment/Strategic Environmental
Assessment – aim to generate information in order to encourage
public participation and transparency in environmental decision
making
• Environmental Information Regulations – give people access to
environmental information in order to encourage public participation
and transparency in environmental decision making
• Marine Strategy Framework Directive – builds of WFD principles but
in the marine environment. Tries to incorporate an ecosystem
approach and sustainable use of marine resources as well as
greater cooperation at EU and regional levels and greater levels of
public participation
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28. Personal reflections
Lee & Holder (2005)
“Science has a central role in legitimating environmental law and
policy: an appeal to ‘facts’, as established by science, is used to pre-empt
and undermine criticism. Although …there are inherent difficulties
with relying on science in this area, the apparent objectivity and
testability of science, seemingly above the fray of divided interest and
political advantage, can be extremely attractive to politicians and to
lawyers”
“Notwithstanding acknowledgement of public values, the temptation for
final decision makers is to seek refuge (rather than enlightenment) in
scientific or technical discourse such as risk assessment or cost benefit
analysis is great. The challenge is to ensure that technical information
is used in a way that informs, rather than usurps, political decision
making” 28

29. Thank you
Please feel free to provide feedback
Richard.broadbent@naturalengland.org.uk
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