Feb 09 2013

Deployment of Marine Renewables: some thoughts on precaution and risk

As an immature technology, there is a level of uncertainty surrounding the environmental impacts of Marine Renewable Energy technologies (MRE). In the context of imperfect information, two general approaches can be taken which will set the tone for Environmental Impact Assessment (EIA) processes. These are the precautionary approach and a risk-based approach. The choice has the potential to shape regulation and facilitate or hinder industry development, and as such it is a heated issue.

The difficulty in assessing environmental impacts in the marine environment, coupled with an emerging consensus that likely environmental impacts of MRE devices are minimal, leaves developers with the near impossible task of detecting a small change in a variable environment. Important questions for regulators are how to fairly distribute the burden for resolving scientific uncertainty, and what approach will be taken.

The Precautionary Principle/Approach

The precautionary principle is essentially the ‘better safe than sorry’ principle: if an action risks causing harm to the environment, in the absence of scientific consensus or certainty that the action is not harmful, the burden of proof falls on the proponent of the action to provide this certainty.

The precautionary principle is the current paradigm for framing environmental regulation and it is now central to environmental law frameworks globally. It has been so widely and fervently adopted that now few principles are better ensconced in the law and philosophy of environmentalism. In the face of uncertainty, regulators of renewable energy projects have traditionally taken the precautionary approach. As a result, developers shoulder the burden of undertaking costly surveys and data analysis when the risk of environmental impact is comparatively low. In requiring a high level of scientific certainty about environmental effects, the precautionary principle threatens to be paralysing to innovation.

British scientist Colin Berry says,

‘If everything we did had to be absolutely safe, risk-free, proven to have no adverse outcomes for anyone or anything, we’d never get anywhere. Buildings wouldn’t go up, planes wouldn’t get off the ground, medical breakthrough would come to a standstill, science would be stifled…. Shall I go on?’

Berry’s contention is that there must be some risk taken in relation to innovative new technologies – if we had not been willing to take a certain amount of risk, many beneficial technologies that we now take for granted would likely not have been developed. Some risk is therefore necessary, but the precautionary principle is not apt to weigh this risk. By failing to account for risk, the precautionary approach leads to a potential impact being perceived as highly likely, when in reality its likelihood, and therefore its importance, is low.

A Risk-Based Approach

A risk-based approach aims to shift the focus away from precaution and toward the assessment and management of risk. Interest in risk-based regulation has grown significantly in recent years, driven in part by pressure to modernise government and improve efficiency in the use of public funds and focuses on assessment, quantification and monitoring of risk. The potential benefit is more efficient resource use through resources being applied to highest risk issues, i.e. the aim  is to focus on the real issues in order to achieve a better outcome.

The use of risk-based regulation specifically in the context of emerging renewables has not yet been discussed in the literature nor has it been well-developed by regulators, although elements of this approach can be seen in some domestic regulatory frameworks.

A key issue for the future of MRE is whether regulators will view their innovations with precaution, requiring a high level of certainty regarding potential environmental impacts, or whether a risk-based approach can be legislated, opening up the possibility of improved decision making and quicker deployment of devices.

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