March 2021

Law and the Precautionary Principle: Wild Card for Courts in Latin America?

Holland & Knight's ENR ISG Quarterly Newsletter
Jose V. Zapata

COVID-19, as other pandemics right out of Pandora's Box, has required ensuring that even the smallest crevice allows room for hope. Among the principles that have gained particular attention in Latin America by multiple courts in the region, has been the "precautionary principle." The principle, originating in international environmental law (particular reference being made to Article 15 of the 1992 Rio Declaration on Environment and Development), has been brought down to the daily life of citizens as a rule through which the review of projects bearing environmental, health or social impact, are to be validated within the context of developmental needs. Similarly, the principle has been used more often than not to assess whether nonrenewable energy projects are in fact allowed to proceed. More recently, the principle has been flagged vis-à-vis the safety of the many vaccines rapidly developed by science to address the COVID-19 pandemic.

In reviewing the referred principle, courts in Latin America have placed particular emphasis on the need to understand scientific certainty on a case-by-case basis. However, there appears to be a growing redefinition of the rules initially delimited by the courts themselves, which have resulted in the principle being used more broadly and intuitively to simply argue that it allows for any project, new venture, activity or undertaking to be suspended when the negative effects of such an activity are unclear or when they cannot be scientifically validated. This new position creates particular difficulties, precisely in scenarios such as with the use and application of rapidly developed vaccines to address COVID-19.

The cases abound. In Perú, the Constitutional Court, Ruling 00012-2019-131TC of June 16, 2020, referred to the manner in which the principle was to be understood. In Mexico, the ruling of the Supreme Court of Justice, Amparo de Revisión Número 307-2016, had previously also signaled the manner in which the principle was to be effectuated. In Ecuador and Colombia, the higher courts have also touched upon its importance. Courts in Latin America provide a clear differentiation between the prevention principle tied to environmental impact assessments and the permits that are based on these, and the precautionary principle which is more ample in the "powers" that it grants governments and courts to determine whether or not one can proceed regardless of the "potential" harm or impact on the environment or health. Most of these judicial debates are of course at the constitutional level and, interestingly enough, courts are making cross-references to similar decisions in other Latin American jurisdictions, including opinions of the Inter-American Court of Human Rights1 on the grounds that Latin America constitutions throughout the region are to be known as "Environmental Constitutions." In fact, in many instances Latin American courts coincide in that the right to a healthy environment is a fundamental human right, with no other condition than that of in dubio pro natura.

In the case of the Colombian Constitutional Court, which has become a reference in other Latin American jurisdictions, the principle has progressively been reinterpreted as to the requirements for its application. Initial rulings that defined specific "cautious" requirements to apply the precautionary principle, have now evolved into a more open-ended interpretation where the burden of proof with respect to scientific certainty is even more complex, where statements of risk can eventually suffice to put an end to projects, and where historic failures of governments to attend to the many needs of communities are combined in a mélange of legal arguments setting forth that if there are potential or hypothetical impacts to health or environment, that should be enough to discard the sustainable development paradigm.2 As a result thereof, courts have opted to put aside the need to fully understand notions of harm or danger, and have discarded much needed development requirements where the state of the art does not offer "sufficient" comfort to move forward.

There is no doubt that most of the world's population values health and the environment significantly, and that the rule of law in Latin America supports such approximation. However, the concern is a bit different. Environmental needs as well as demands for improved health of Latin American citizens are also tied to the manner in which the region can develop and find resources to address sustainable development. Planting a tree as well as finding a cure for COVID-19 requires funds and development. The broad specter of subjective judicial decisions as to the manner in which the precautionary principle is to be applied can ultimately halt new ventures seeking to address climate change. Renewable energy projects are now seeing the same types of claims of harm, danger, environmental footprint and lack of scientific certainty that nonrenewable projects typically face. This awkward scenario would undermine environmental efforts and policies.

If the Latin American courts' manner of application of the precautionary principle prevailed in the midst of the development of vaccines to attend to the COVID-19 pandemic, the world would very likely still be stuck in the courts discussing human health, risk and necessity. In addition, countries would very likely still be stuck in tests, trials and judicial debate.

In conclusion, Latin American courts must again revisit the principle and return to their original positions where the application of the principle did not lie in the subject understanding of science and development but in the need of coexistence of five fundamental legal elements for correct application, that is to state 1) the existence of a serious harm, 2) that such harm be considered grave and irreversible, 3) that there be a minimum scientific certainty as to the activity and its impacts, regardless that certainty not being absolute, 4) that any decision on the principle have as its purpose impeding environmental degradation or deterioration, and 5) that any such decision on the application of the principle be duly and fully motivated by the corresponding court or authority.

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1 Inter-American Court of Human Rights. Advisory Opinion 0C-23/17, Nov. 15, 2017, requested by the Colombian State.

2 Colombian Constitutional Court Rulings – Constitutional Court Sentence C-710 of 2001, Sentence C-293 of 2002, Sentence C-703 of 2010, Sentence T-298 of 2017, Sentence C-583 of 2015 and Sentence T-614 of 2019.

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