The Problem With Traffic Lights: Ex Post Facto Precaution

John Pearson

Firstly for those of you misled by the title into thinking this post was a rant about traffic management systems, my apologies but thank you for the addition to my viewing figures. For those of you still reading at this point, the post will consider the efficacy of the widely used traffic light system of environmental risk management in major extraction projects.

Traffic lights systems are a commonly used approach to environmental risk management which allows economically beneficial extraction to continue whilst meeting the demands of the precautionary principle. A seminal principle of environmental law, the precautionary principle has been suggested as taking a number of forms. Richard Stewart suggested four forms which the majority of approaches seen throughout the world today could be categorised into, as indeed could the variety of definitions given to the principle in domestic, regional and international legal texts. These forms are:

  1. Non-preclusion
  2. Margin of safety
  3. Best available technology
  4. Prohibitory

Traffic light systems suggest three (or more) levels of impact of increasing severity and appropriate responses expected of parties undertaking the action causing said impacts. By way of illustration, ‘green’ impacts are minimal or non-existent and allow action to continue unabated. ‘Amber’ impacts are more severe though likely to abate with reduced activity, and often the suggestion that monitoring should be increased to ensure this is the case is made. ‘Red’ impacts require immediate cession of activity until impacts dissipate entirely and/or the regulatory authority permits recommencement.

The post will attempt to show that the traffic light system fits within none of these proposed methods of achieving precaution, and as such in no way imbues precaution into the regulatory frameworks in which it is utilised. As with my earlier posts for this blog, and in line with my on going research I will use the extraction of tar sands in Alberta, Canada and hydraulic fracturing (aka fracking) as case studies on which to base my contentions.

In the UK the continued exploratory drilling at sites such as Barton Moss in Manchester and Balcombe in West Sussex is governed by a traffic light approach to management of so called induced seismicity. This is the seismic effects caused by the fracturing of shale and other rock formations to access the gas trapped within it, and can range from tremors caused immediately by the injection of fluid to increase pressure to earthquakes perceptible to humans caused by the fractures created at a later point. A traffic lights approach to the monitoring of such seismic events was suggested by the June 2012 report of the Royal Academy of Engineering and the Royal Society.

Under the system suggested only once a seismic event of 1.7 M (magnitude) occurs will activity have to be halted entirely (to add context the earthquake which caused the tsunami in the Indian Ocean in 2004 was 9M). Between 0 and 1.7M, the ‘amber’ category, monitoring is increased after injection of fluid into wells until events fall to below one per day. This in itself is a point of concern, as the frequency of events between 0 and 1.7M is irrelevant and can never breach the ‘red’ zone. Thus constant tremors of 1.7M would only necessitate further monitoring and no reduction in the intensity of activity.

In Alberta, Canada the traffic light system is utilised to regulate the extraction of water from natural water courses for utilisation in the extraction and refinement of tar sands. Here, under ‘green’ conditions firms can exract up to 15% of river flow by volume, ‘amber’ 10% of flow with a maximum level set in winter, and ‘red’ 5.2% of flow with a maximum level in winter and the mandatory requirement of storage of water extracted rather than continued extraction. A note should be made that in this case, regardless of the critique to follow, the system in Alberta under the Regional Aquatic Monitoring Program and Lower Athabasca River Water Management Framework is voluntary in nature.

A number of criticisms can be levelled at traffic light systems in specific contexts, the discussion here however will focus on general issues with the approach in relation to meeting the requisite level of precaution activities with particularly egregious potential impacts necessitates. Firstly traffic light systems operate on static conceptions of the risks involved. Increased monitoring of potential impacts than that already in operation is only required once the ‘amber’ level of impact has already been reached. Thus the scientific data on which precaution is based will not necessarily increase as activity continues. Regulation of activities with unknown impacts is therefore based on data which was acquired in periods of lesser or even no activity. Data as to the extent of impacts is thus only acquired once said impacts have begun to occur.

In the case of fracking the level of monitoring of seismic activity in the regions in which test drilling (at the time of writing no company is extracting natural gas by fracking for commercial sale in the UK) is unprecedented and as such the data used on which to base the traffic light system is of a fundamentally different scale to that now being acquired on a daily basis. Thus the data on which the coloured zones are being based is inherently less reliable than that now being acquired once activity has begun.

A similar issue arises in relation to the monitoring of river flow levels and the adverse effect of extraction by tar sands projects upon native flora and fauna inextricably connected to them. Quite simply data is not available regarding the impacts low water flow levels will have or at what level those which are known to potentially occur will. Dr William Donahue, Director of Science and Policy at Water Matters (a water focused Canadian NGO) advised the Canadian Parliament that, ‘many of the conclusions in current estimates…are based on large assumptions and applications developed for southern rivers.’ The regulatory authorities have admitted themselves in framework texts that data in many instances is simply not available. As such the traffic lights system imposes precaution which is based upon data which is not currently accurate and is in no way incentivised to become so in the future.

The second issue that traffic light systems do not address is the mitigation of impacts known to be potential consequences of activity. To take the examples of the tar sands and fracking, the systems imposed only require cession of activity until the impact has abated. Thus once river flow levels are replenished or seismic events cease, water extraction and fluid injection respectively can be resumed. Only in the event of continued or ceaseless impacts is action to mitigate damage caused required it would seem. Indeed in neither instance is such a stipulation made, though it can be reasonably presumed that this would be the requirement placed upon parties engaging in the actions causing adverse impacts by regulatory authorities should unrelenting impacts occur.

In relation to the aforementioned forms of precaution suggested by Stewart, traffic light monitoring is certainly not prohibitory, it in no way requires the halting of activity until no or acceptable impacts are assured. In fact it is quite the opposite, the system permits continued activity based upon a lack of knowledge regarding the impacts thereof. As has been discussed they do not require the utilisation of the best available technology or methods for monitoring, merely that it should occur once impacts have been recognised as having occurred.

In relation to the other two forms of precaution Stewart outlines, traffic light systems gain some credibility. They appear prima facie to permit activity based on uncertainty regarding a potential risk, and as such are representative of a non-preclusion approach to precaution. However traffic light systems do not require precaution within continued activity, a key aspect of the non-preclusion approach. The principle at the centre of non-preclusion is that beneficial activity should not be halted in the face of uncertainty. Instead they should imbue precaution in on going operations, which is certainly not the case in traffic light systems as has been shown.

Finally the margin of safety approach is that which is most closely linked to the traffic light system. Under this approach activities bearing risks of potential harm are to be permitted up to a level at which adverse impacts have not been proven to occur or are not predicted to so. Again prima facie this approach appear to be represented within traffic light systems. However, the level at which impacts will occur in the two examples given is unknown, thus to suggest that activity is permitted up to and not beyond said level is profoundly untrue.

In conclusion although being espoused as imbuing precaution in potentially harmful activities, the traffic light system of environmental regulation is only effective to the extent that accurate scientific data is available. New or ‘unconventional’ approaches to securing ever more scarce resources, of which the tar sands and fracking are two of the most high profile examples, are rarely able to be based upon accurate and established data. As such traffic light systems are fundamentally undermined as approaches to ensuring precaution in relation to them. To put it simply traffic light systems in such instances are regulatory, but are by no means precautious.

John Pearson is an Associate Lecturer at Lancaster University and Part-Time Lecturer and Bangor University in North Wales. He researches in human rights law and environmental law at international, regional and domestic levels. He has written on the use of human rights to protect environmental features of particular cultural significance and this is the focus of his doctoral thesis and research with a particular focus on the tar sands of Alberta, Canada and on regulatory reactions to the use of extreme sources of energy.

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