A.

Landmark Jurisprudence : ISAA vs GREENPEACE (2015)

On 24 September 2010, The International Service for the Acquisition of Agri-Biotech

Applications, Inc. (ISAAA), University of the Philippines Los Baños Foundation, Inc. (UPLBFI)
and UP Mindanao Foundation, Inc. (UPMFI), executed a Memorandum of Undertaking in
pursuance of a collaborative research and development project on eggplants that are resistant to
the fruit and shoot borer, Other agencies such as UPLB through its Institute of Plant Breeding,
Maharastra Hybrid Seed Company (MAHYCO) of India, Cornell University and the Agricultural
Biotechnology Support Project II (ABSPII) of USAID took part.

The Field Trial Proposal in UPLB states that the pest-resistant crop subject of the field
trial was described as a “bio-engineered eggplant.” The crystal toxin genes from the soil
bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant genome to produce the
protein CrylAc which is toxic to target insect pests. The latter is said to be highly specific to
lepidopteran larvae such as fruit and shoot borer (FSB), the most destructive insect pest of
eggplant

A Certificate of Completion of Contained Experiment was issued by NCBP, which was

conducted from 2007 to March 2009 stating that all the biosafety measures have been complied
with no untoward incident occurring during the conduct of experiment.

On 16 March 2010 and 28 June 2010, the Bureau of Plant Industry (BPI) issued biosafety
permits to UPLB. Field testing commenced in trial sites located in Kabacan, North Cotabato; Sta.
Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.

On 26 April 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace,

et.al.) filed a petition for writ of kalikasan and writ of continuing mandamus with prayer for the
issuance of Temporary Environmental Protection Order (TEPO) alleging that the Bt Talong field
trials violate their constitutional right to healthy and a balanced ecology considering among
others that:
 There was a study conducted showing adverse effects on rats who were fed Bt corn, local
scientists likewise attested to the harmful effects of GMOs to human and animal health
 Bt crops can be directly toxic to non-target species
 The case calls for the application of the precautionary principle, it being a classic
environmental case where scientific evidence as to the health, environmental and socio-
economic safety is insufficient or uncertain and preliminary scientific evaluation
indicates reasonable grounds for concern that there are potentially dangerous effects on
human health and the environment

On 2 May 2012, the Supreme Court issued the writ of kalikasan against ISAAA, EMB,
BPI, FPA and UPLB, ordering them to file a verified return.

Among the contentions of the respondents is whether the Precautionary Principle does
not apply since the field testing is only a part of a continuing study to ensure that the field trials
have no significant and negative impact on the environment
 The Supreme Court referred the case to the Court of Appeals.

On 17 May 2013, CA ruled in favor of Greenpeace, et.al. positing that the precautionary
principle set forth in Section 1, Rule 20 of the Rules of Procedure for Environmental Cases (the
Rules) finds relevance in the case.

CA denied the Motions for Reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and
UPLBFI rejecting the argument that CA violated UPLB’s right to academic freedom. The writ
stops the field trials of Bt Talong as a procedure, it does not stop Bt Talong research. Thus, there
is no assault on academic freedom.

CA further justified its decision by expounding on the theory that introducing a

genetically modified plant into our ecosystem is an “ecologically imbalancing act.”

ISAAAI, EMB/BPI/FPA, UPLB and UPLBFI filed a consolidated petition before the SC
to reverse the CA decision permanently enjoining the conduct of field trials for Genetically
Modified eggplants.

One of the main issues raised was whether the Precautionary Principle applies.

The precautionary principle expresses the normative idea that governments are obliged to
“foresee and forestall” harm to the environment. The Rules incorporated the principle in Part V,
Rule 20 of the Rules of Procedure for Environmental cases provides:

SEC.1. Applicability. – When there is a lack of full scientific certainty in

establishing a causal link between human activity and environmental effect,
the court shall apply the precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall
be given the benefit of the doubt.

SEC 2. Standards for application. – In applying the precautionary principle,

the following factors, among others, may be considered: (1) threats to human
life or health; (2) inequity to present or future generations; or (3) prejudice to
the environment without legal consideration of the environmental rights of
those affected.

When the features of uncertainty, possibility of irreversible harm, and possibility of

serious harm coincide, the case for the precautionary principle is strongest. In the case at bar, the
Supreme Court found all three conditions present.

While the aim of boosting crop harvests to raise farm incomes is commendable,
independent scientific studies unraveled uncertainties due to unfulfilled economic gains from Bt
crops and plants, negative effects on the environment allied to the use of GE technology in
agriculture, and serious health risks from consumption of GM foods. For a biodiverse country
like the Philippines, the natural and ill effects of contamination and genetic pollution would be
catastrophic and irreparable.

Moreover, the non-implementation of the NBF in the critical phases of risk assessment
and public consultation, including the determination of the applicability of the EIS requirements
to the GMO field testing, are compelling reasons for the application of the precautionary
principle.

There exists a preponderance of evidence that the release of the GMOs into the
environment threatens to damage our ecosystems and not just the field trial sites, and eventually
the health of our people once the Bt eggplants are consumed as food.

Adopting the precautionary approach, the Supreme Court ruled that the principles of the
NBF need to be operationalized first by the coordinated actions of the concerned departments
and agencies before allowing the release into the environment of genetically modified eggplant.

Further, the precautionary approach entailed inputs from stakeholders, including

marginalized famers, not just the scientific community. This proceeds from the realization that
acceptance of uncertainty is not only a scientific issue, but is related to public policy and
involves an ethical dimension. Hence, the conduct of Bt Talong field testing is permanently
enjoined.

I. THE PRECAUTIONARY PRINCIPLE

A. Definition

Scholars and experts in the fields of environmental science, risk management, sociology,
economics, and law have provided a variety of interpretations and approaches toward this
principle.

Precaution may be defined as "caution in advance", "caution practised in the context of

uncertainty", or “informed prudence”. According to Jordan and O’Riordan (2004), Two ideas lie
at the core of the principle: 1

1. An expression of a need by decision-makers to anticipate harm before it occurs. Within

this element lies an implicit reversal of the onus of proof: under the precautionary
principle it is the responsibility of an activity-proponent to establish that the proposed
activity will not (or is very unlikely to) result in significant harm.

1
Andrew Jordan & Timothy O'Riordan. Chapter 3, The precautionary principle: a legal and policy history, in The
precautionary principle: protecting public health, the environment and the future of our children. World Health
Organization 2004. http://www.euro.who.int/__data/assets/pdf_file/0003/91173/E83079.pdf. Last accessed 5 Dec
2019
 2. The concept of proportionality of the risk and the cost and feasibility of a proposed
action.

According to Hanson (2018), the Precautionary Principle is a modern restatement of the

classical Hippocratic Oath, “I will keep them from harm and injustice,” which is often
summarized as “first, do no harm.”2

The Rio Conference in 1992 also known as the "Earth Summit" in 1992 provided the
universally recognized definition of the Precautionary Principle where Principle 15 of which
states "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."3

Simply put, "When an activity raises threats of harm to human health or the environment,
precautionary measures should be taken even if some cause and effect relationships are not fully
established scientifically."4

There are three basic and common elements that would call for its application, to wit: (1)
a threat of damage to the environment; (2) the threat of damage is serious or irreversible; and (3)
there is lack of scientific certainty.5

Precautionary principle is now a go-to solution when there is a need to address vaguely
understood causes of imminent irreversibly disastrous events, and where protective decisions
require certain and costly policy interventions that may not solve the problem that they are
designed to correct. These principles provide – when developed by statutes that reflect the intent
of the principles – a legal justification for acting, even though scientific causation is either
incomplete or perhaps unavailable. The dilemma that those principles create is that the ethical
choice underpinning precautionary principles, better safe than sorry instead of the wait-and-see
approach, can be costly because an action designed to avoid potential damage can be
counterproductive for society by creating other perils that are incorrectly analyzed.

Simplistically, this principle holds the idea that regulatory intervention is legitimate, even
if the supporting evidence is incomplete or speculative.6

2
J. Hanson. 2019. Precautionary Principle: Current Understandings in Law and Society.Retrieved from
https://www.sciencedirect.com/science/article/pii/B9780128096659104513#!. (last accessed 5 December 2019)
3
Lex Mercatoria. "Rio Declaration on Environment and Development".
https://www.jus.uio.no/lm/environmental.development.rio.declaration.1992/portrait.a4.pdf (last accessed 5 Dec
2019)
4
World Health Organization 1998. Wingspread Statement on the Precautionary Principle. www.who.int › ifcs ›
documents › forums › forum5 › wingspread (last accessed 5 Dec 2019)
5
International Union for the Conservation of Nature, Guidelines for Applying the Precautionary Principle to
Biodiversity Conservation and Natural Resource Management,
http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf (last accessed 5 Dec 2019)
 B. Applicability in Foreign Jurisdictions

In the United States and Europe, the Precautionary Principal has become the fundamental
principle of environmental protection policy and law.7 Some legal commentators believe that the
precautionary principle may already be so broadly accepted that it is evolving into a customary
international law. 8

American jurisprudence like in Ethyl Corp. v. EPA (1976), TVA v. Hill (1978), and
Industrial Union Dept., AFL-CIO v. API, 1980, through the Supreme Court ruled that the
government cannot regulate on the basis of mere conjecture about uncertain risks. Furthermore
the Supreme Court ruled that, “the government must demonstrate ‘significant risk’ before
regulating”. This gave precedent to an adoption of scientific risk assessment as the basis for
American risk regulation.9 The courts acknowledged that even in the case where the scientific
basis for a threat to health or the environment is not compelling, regulators have the discretion to
‘err on the side of caution’, often without laying down a specific requirement to do so, although
the directive to do so is often found in the enabling legislation of various regulatory regimes.10

In the US, the PP has been applied in many ways in decisions concerning health and
environment since the ‘70s. US law weighs precaution against other considerations, most
importantly costs’ and, therefore, is best treated as a preference, rather than a principle.11

On the other side of the Atlantic, regulation is more qualitative and informal where it
seeks proactively to regulate risks and waits more circumspectly for evidence of actual harm
before regulating.12 In Europe, a chance of risk is sufficient for something not to be approved.

6
Science for Environment Policy (2017) The Precautionary Principle: Decision making under uncertainty. Produced
for the European Commission DG Environment by the Science Communication Unit, UWE, Bristol.
http://ec.europa.eu/science-environment-policy (last accessed 5 Dec 2019)
7
James Cameron & Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the
Protection of the Global Environment, 14 B.C. Int'l & Comp. L. Rev. 1 (1991),
https://lawdigitalcommons.bc.edu/iclr/vol14/iss1/2 (last accessed 5 Dec 2019)
8
Linda A. Malone, Philippe Sands, Principles of International Environmental Law (Manchester University Press,
1995) (Philippe Sands, Richard Tarasofsky, & Mary Weiss, eds.) Vol. I, 754 pages; Vol. II, 1709 pages; Vol. III, 838
pages , Yearbook of International Environmental Law, Volume 6, Issue 1, 1995, Pages 732–733,
https://doi.org/10.1093/yiel/6.1.732 (last accessed 5 Dec 2019)
9
Id.
10
Nicholas A. Ashford, The Legacy of the Precautionary Principle in US Law: The Rise of Cost-Benefit Analysis and
Risk Assessment as Undermining Factors in Health, Safety and Environmental Protection (2006). Retrieved from
https://ashford.mit.edu/sites/default/files/documents/C28.%20LegacyOfPrecaution_19.pdf (last accessed 5 Dec
2019)
11
Id.
12
Jonathan B. Wiener, Michael D. Rogers, Comparing precaution in the United States
Risk, by which further defined as the combination of the likelihood (probability) and the harm
(adverse outcome, e.g. mortality, morbidity, ecological damage, or impaired quality of life)
resulting from exposure to an activity (hazard).13

In Europe, the PP was formally adopted in the 1992 Maastricht Treaty and is one of the
main principle on which EU environmental policy is based which imposes an obligation on EU
institutions to ensure that EU environmental policy is based on the precautionary principle.14

Parallel to EU principles, the UK employed a precautionary approach to its policy-

making and as early as 1990, embraced it as a vital principle of environmental policy. However,
it has come under scrutiny for only utilizing the precautionary principle as a last resort or when
influenced by public clamour or pressure from the EU.15

In Australia, the precautionary principle had a prompt and methodical integration in their
environmental laws and the status rendered to it by the courts.16 The principle was established in
Australia with the signing in 1992 of the Intergovernmental Agreement on the Environment
(IGAE). Although the IGAE is not legally binding on the parties, it is influential because it is the
highest level of environmental policy commitment that exists between all the spheres
government. The precautionary principle is listed as one of four principles intended to inform
environmental policy and programs within the purview of each of the parties, thus covering all
Australian public environmental policy and management decisions.17

Under clause 3.5.1 of the IGAE18, the parties agreed that:

“Where there are threats of serious or irreversible environmental damage, lack of

full scientific certainty should not be used as a reason for postponing measures to prevent
environmental degradation.’

The above formulation is intimately similar to the 1992 Rio Declaration embodying the
notion that ‘cautious actions should be taken whenever uncertain environmental risks are

and Europe (Journal of Risk Research),

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1985&context=faculty_scholarship (last accessed 5
Dec 2019)
13
Id.
14
Science for Environment Policy (2017) The Precautionary Principle: Decision making under uncertainty. Produced
for the European Commission DG Environment by the Science Communication Unit, UWE, Bristol.
http://ec.europa.eu/science-environment-policy (last accessed 5 Dec 2019)
15
Id.
16
Gullett, Warwick, The precautionary principle in Australia: policy, law and potential precautionary EIAs, Risk:
Health, Safety and Environment 2000.
https://pdfs.semanticscholar.org/5321/d1efebf9a5ac9c10edfd38d1d1584568d275.pdf (last accessed 8 Dec 2019)
17
Id.
18
Commonwealth of Australia, Intergovernmental Agreement on the Environment (May 1992). Retrieved from
https://www.environment.gov.au/about-us/esd/publications/intergovernmental-agreement (last accessed 8 Dec
2019)
encountered’. However, the IGAE magnifies upon this core requisite. In the application of the
precautionary principle, public and private decisions should be guided by19:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible

damage to the environment; and
(ii) an assessment of the risk-weighted consequences of various options.

In the late ‘90s, the precautionary principle has appeared in Australian statutes and has
become more frequent due to its deep-rooted status in Australian environmental policy and has
become a commonly mentioned basis in new environmental protection.

In Canada, there has been a very recent environmental landmark case that rested
primarily on the PP. Morton v Canada Fisheries and Oceans (2015) where the court stated in part
that “the principle is an emerging principle of international law, which informed the scope and
application of the legislative provision in question.”

Canada’s approach to precautionary principle is enshrined in the 1999 Canadian

Environmental Protection Act (CEPA 1999)20:

“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.”

By “lack of full scientific certainty”, it means that there is still a necessity for adequate
scientific studies to ascertain that a probable threat is imminent for the likelihood of serious or
irreversible peril. A measurable degree of scientific certainty is needed before the precautionary
principle is relevantly invoked. Absence the word “full”, there would be no definite starting point
for any scientifically sound justification.21

In several African countries, policy-makers are also faced with dilemma arising from the
pressure to employ the precautionary principle. These countries have formulated and adopted
biosafety regulations that they are seeking to implement it. The regulations like in Cameroon,
Egypt, Uganda and Zambia have clear reference to the precautionary principle.22 However, the
degree to which the principle is transformed in concrete policies requires careful assessment.
Even more pressing is to how to balance the precautionary principle into the deep-seated
problems like famine and food insecurity that cannot wait for technological solutions yet to be
discovered.

19
Id
20
Canadian Environmental Protection Act, 1999. Retrieved from https://laws-lois.justice.gc.ca/eng/acts/c-
15.31/page-1.html (last accessed 10 Dec 2019)
21
Definition of the Precautionary Principle - Canadian Chamber. Downloaded from www.chamber.ca › download.
(last accessed 10 Dec 2019)
22
John Mugabe, Ph.D., Precautionary Policies and Biotechnology in
Africa,https://www.iatp.org/news/precautionary-policies-and-biotechnology-in-africa (last accessed 10 Dec 2019)
 A number of Asian countries have already well-written environmental legislations yet
neither is founded on precautionary principle. For one, Malaysia’s National Biodiversity Policy
has a clear reference to the Convention on Biological Diversity (1992) but doesn’t use the term
‘precautionary principle. 23 Similarly other countries in the region, Indonesia, Laos, and Vietnam
refrain to cite precautionary principle in their laws.24

On the other hand, countries like India and Pakistan’s don’t mention the PP in their
environmental legislations25 yet their high courts have invoked ‘precautionary principle’ in its
judgments like in the case of Punjab v. Modern Cultivators, Ladwa 1964 SCR (8) 273, and
Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum (1997) 9 SCC 552 , wherein
expectations for precaution are used as measures of tort liability. The Oleum Gas Leak Case,
“extends the principle of strict and absolute liability for those engaged in hazardous activities,
thus providing the necessary impetus for precautionary action when dealing with toxic materials
and allowing punishment for a failure to err on the side of caution.”26

Meanwhile in China, topping its agenda is food security, given its massive population.
Consequently, there is a clash whether to derestrict GM foods to ensure food security or to
regulate GM foods in a precautionary way that would ensure food safety and public health27.
However, concerns like the increase in the import of staple foods, the fall in self-sufficiency rates
of food supply, the lack of arable land, and pollution all expect for the role of GM technology in
increasing and improving the quality and quantity of yield. 28 Although the Food Safety Law in
China invokes risk prevention as a legal principle, an example is Article 21 of China's
Regulation on Environmental Impact Assessment of Planning of 2009, stipulating that “the
reviewing group should give disapproval if they cannot make a scientific judgement on the scope
and degree of possible adverse environmental effects in the light of the existing knowledge”29 , it
is wanting of elaborate rules to substantiate this principle.

23
Dhan Prakash,et al (2011), Risks and Precautions of Genetically Modified, International Scholarly Research
Notices, https://www.hindawi.com/journals/isrn/2011/369573/ (last accessed 12 Dec 2019)
24
Id.
25
Id.
26
M. C. Mehta v. Union of India, Writ Petition (Civil) No.12739 of 1985
27
Sun Juanjuan. (2019) Genetically Modified Foods in China: Regulation, Deregulation, or Governance?,
https://link.springer.com/chapter/10.1007/978-981-13-8102-7_15 (last accessed 12 Dec 2019)
28
Id.
29
Chinese Plan Environmental Impact Assessment Regulations 2009, Article 21