What’s Plan Bee?!: The Precautionary Principle and the Protection of European Pollinators
Law and Sustainability student blog series
The following article is the first in a series based on a selection of LLB student essays from the Law and Sustainability course.
This course interrogates the role of law in addressing the global environmental emergency. Students have the chance to critically evaluate the connection between between contemporary policies and legal frameworks that promote a 'green transition' and issues of distributive justice such as poverty, violence and domination. They are asked to consider if and how law can navigate the tension of achieving 'just transition' while ensuring the preservation of the natural environment.
By Lewis Bern
Bees play a vital ecological role and provide enormous benefits through pollination. In the past fifty years, European bee populations have been declining, presenting an alarming risk to the stability of ecosystems (Goulson et al, 2015). The reasons advanced for this degradation are manifold, but some blame pesticides containing neonicotinoids (Friends of the Earth, 2017). Pesticides are useful in agriculture and not all agree that they pose a true threat to bees. These tensions came to a head in Bayer v Commission (Case C-499/18 P), in which the precautionary principle featured strongly.
An important concept in IEL, the precautionary principle allows regulatory action which prevents activity with a potential adverse environmental impact. In other words, it aims to tackle environmental harm before it can materialise. Internationally speaking, it has its origins in Principle 15 of the Rio Declaration (Rio Declaration 1992). This is a soft law instrument and has been applied differently between jurisdictions and to a range of environmental matters. This has resulted in a lack of clarity as to one, the extent and existence of risk needed to be shown in order for the principle to be triggered and two, how such can be achieved (Sandin, 2004). This uncertainty has led to considerable contention between regulators and private parties; indeed, no other principle in IEL has produced as much legal controversy (De Sadeleer, 2021).
In Bayer, the principle was in issue before the CJEU within the context of an EU implementing regulation. While the principle has been enshrined in EU law (Article 191(2), TFEU), similarly to an international level, no agreed upon definition for triggering exists. In the case, a German biotechnology firm sought to challenge an EU regulation which restricted the use of neonicotinoid substances in pesticides. The regulation was enforced as some research had indicated the possibility of the chemicals threatening bee colonies.
Bayer argued in the case that the court had failed to examine whether the risk assessment and scientific evaluation were ‘sufficiently exhaustive’ and ‘well informed’ to justify the adoption of the regulation. They submitted that it contravened ‘procedural safeguards’ contained in Regulation 1107/2009 for the Commission to enforce such without a ‘comprehensive risk assessment.’ The court dismissed this appeal, holding that the precautionary principle did not require any certain proof of risk, but merely a likelihood of environmental harm should a risk materialise. The bar was therefore set very low by the court in terms of what was needed to trigger the regulation and they were able to rely on the precautionary principle to do this.
One key concept of IEL that this case demonstrates is the conflict that the precautionary principle underpins between ecological and economic concerns as a part of ‘sustainable development’ (Montini, 2020). In Bayer, proponents of the principle commended the court’s practical approach which avoided ‘handing the chemical industry the golden ticket for delay tactics’ (Van Calster, 2023). But there is something to be said for the impact that precautionary measures can have on progress. Indeed, many critics of the principle maintain that it impedes scientific innovation and that, in many cases, this type of innovation is actually necessary to find new ways to enhance environmental protection (Gemmel et Scott, 2013).
In contrast to the Bayer judgment, it could be argued that a threshold test ought to apply to the level of proof needed to trigger the principle. This ought to then be kept under supervision to ensure research were ongoing and genuine as time progressed. However, the main issue with providing the court with a supervisory mechanism of this sort is that the proof needed is often deeply grounded in complex scientific research. This is disadvantageous because scientific evidence cannot always be readily ascertained, as is often demonstrated in the case of environmental impact assessments (Fisher, 2019) and where it is, judges are not traditionally well-placed to make technical assessments about such.
I think it makes more sense to set the bar low in terms of the evidence needed to trigger the precautionary principle when interpreting regulation designed to promote sustainable development. This is especially true for biodiversity conservation as was the case for the bee colonies in Bayer, given the complexity in data-modelling for the functioning of ecosystems (De Sadeleer, 2021). While his view may not prioritise biochemical trade and commerce, it does embrace some of the main attitudes required for sustainable development as endorsed by Montini (Montini, 2020). Specifically, a view ‘beyond anthropocentrism’ which looks to balance ecological and human needs and a view beyond ‘short-termism’ which looks to emphasise longer-term planning over ‘emergency-solving’ legislation. Bees are vital to our survival and proactive attitudes will ultimately be invaluable in their protection.
