Some commentators have explained the precautionary principle by emphasizing that it shifts the burden of proof: "[W]hen scientific information is in doubt, the party that wishes to develop a new project or change the existing system has the burden of demonstrating that the proposed changes will not produce unacceptable adverse impacts on existing resources and species."15 Others have suggested that the principle has an even more dynamic element, namely that it requires all users of the ocean commons to develop alternative nonpolluting technologies.16 These requirements are explained in detail in the sections that follow.

The Duty to Prepare an Environmental Impact Assessment. This duty has been recognized in numerous recent treaties,17 and a treaty has been drafted that spells out the procedures to be used in drafting such an assessment in the international context.18 The Organization of Economic Cooperation and Development (OECD) (of which Japan is a member) issued a document in 1985 "requiring that developmental assistance projects and programs which could significantly affect the environment be comprehensively assessed from an environmental standpoint by Member States at the earliest possible stage."19 With regard to the 1992 plutonium shipment, some limited testing and evaluation was undertaken by Japanese and U.S. agencies, but nothing like a formal environmental assessment was prepared.20 The Abercrombie Amendment to the Energy Policy Act of 1992 required the Department of Energy to conduct a safety analysis of plutonium shipments by sea, and a safety analysis was transmitted to Congress in February 1994, but it was characterized by members of the House of Representatives from Hawaii, Guam, American Samoa, Puerto Rico, and the U.S. Virgin Islands as "wholly inadequate."21

Japan has not had extensive experience in conducting environmental impact assessments, and its efforts in undertaking such efforts have not always been successful.22 For its shipment of vitrified nuclear wastes, Japan's Science and Technology Agency released on February 13, 1995 a very short summary of a report entitled "Environmental Impact Assessment of High Level Radioactive Waste Cask Sinking in the Sea" in response to demands that it conduct a full environmental assessment of the shipment.23 This report was commissioned by the Central Research Institute of Electric Power Industry in 1990 and consisted of a four-page summary of the industry's findings.24 The Science and Technology Agency stated that it did not believe that a formal environmental impact assessment was required, because in its view its transport is legitimate if it complies with the standards of the International Atomic Energy Agency (IAEA), but that it commissioned a study on this one issue nonetheless to "promote further understanding."25 The conclusion of the study is that "even in the event of the worst accident scenario--the sinking of all 28 canisters under the sea--the effect to human health would be negligible."26 The report presents no detailed description of its methodology or assumptions.27 Nor does it analyze the accident that could present a much greater danger--a collision followed by an intense fire on the vessel.

A U.S. scientist, Dr. Edwin S. Lyman, at the Center for Energy and Environmental Studies at Princeton University's School of Engineering and Applied Science, issued an analysis of the shipment in which he concluded that the stainless steel used in the casks can weaken at extremely high temperatures and could rupture in an accident at sea.28 The alloy used by France is susceptible to "sensitization" or weakening, and had previously been found by U.S. experts to be unsafe for such high-temperature applications. Dr. Lyman characterized the decision to use this alloy as "a bad engineering decision ... at best imprudent, and at worst irresponsible."29

End Notes

15. Freedom for the Seas in the 21st Century 477 (Jon M. Van Dyke, Durwood Zaelke, and Grant Hewison eds. 1993). This view is also found in the World Charter for Nature, Art. 11(b), Oct. 28, 1982, G.A. Res. 37/7, 37 U.N.G.A.O.R. Supp. (No. 51) 17, U.N. Doc. A/37/51, 22 I.L.M. 455 (1983): Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed. See also P.W. Birnie and Alan E. Boyle, International Law and the Environment 98 (1992)(concurring with this view in the context of the London Dumping Convention, supra note 13; Weintraub, supra note 8, at 204-07 (justifying the shifting of the burden of proof to the polluter as the "more efficient" approach); Macdonald, supra note 11, at 263-64 (discussing the burden of proof issue). Another commentator has written that "[t]here is some evidence to suggest that this interpretation [that the precautionary principle shifts the burden of proof to those who are carrying out the activities] is gaining acceptance, even if it cannot yet be considered to be a rule of general application." Philippe Sands, The "Greening" of International Law: Emerging Principles and Rules, 1 Ind. J. Global Legal Stud. 293, 301 (1994) (citing recent examples). Back to document

16. Hey, supra note 13, at 308 n.22 and 309- 11. Back to document

17. See generally Van Dyke, Japanese Plutonium, supra note 2, at 402-03; World Charter of Nature, supra note 15, Principle 11(c). One European commentator explained that an environmental impact assessment is "an almost indispensable means of realizing Stockholm Principle 21 [requiring countries to avoid causing transboundary pollution to other countries], so that the legal significance of the EIA can be compared to that of the information and notification duty." Hohmann, supra note 11, at 201. The Stockholm Principles were promulgated by the United Nations Conference on the Human Environment on June 16, 1972, and are reprinted in 11 I.L.M. 1416, 1420 (1972). Back to document

18. Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 30 I.L.M. 800 (1991). This Convention does not explicitly refer to shipments of ultrahazardous cargoes, but its descriptions of the appropriate procedures to follow in preparing an assessment are universally applicable. Back to document

19. Hohmann, supra note 11, at 146 (citing Rec. C(85) 104 of 20 June 1985). OECD recommendations require unanimity for adoption. According to Rule 19(b) of the OECD Rules of Procedure, "Recommendations shall be submitted to the Members for consideration, in order that they may, if they consider it opportune, provide for their implementation." In practice, even though a recommendation may not be legally enforceable in a tribunal, "each of the Member States can remind the deviant member of this recommendation, which was supported by all members after lengthy negotiations, and can insist upon appropriate conduct." Hohmann at 181. Back to document

20. See Van Dyke, Japanese Plutonium, supra note 2, at 404-07. Back to document

21. Letter to President William Clinton signed by Representatives Neil Abercrombie (Hawaii), Patsy T. Mink (Hawaii), Victor O. Frazer (U.S. Virgin Islands), Robert A. Underwood (Guam), Carlos A. Romero-Barcelo (Puerto Rico), and Eni F.H. Faleomavaega (American Samoa), Jan. 10, 1995; Pete Pichaske, Lawmakers Want Waste Transit Delayed, Honolulu Star-Bulletin, Jan. 13, 1995, at A-7, col. 2. The Energy Policy Act of 1992 called for a safety analysis of the sea shipments of plutonium. The Nuclear Regulatory Commission released a draft report in December 1992 which was criticized as inadequate. In a letter dated September 24, 1993, Thomas P. Grumbly, Assistant Secretary for Environmental Restoration and Waste Management, Department of Energy, agreed to expand the scope of the study to include an evaluation of glassified high-level waste. Two months later, however, because of objections from the State Department, the Energy Department withdrew this commitment and in February 1994, more than a year late, it released the original report to Congress. Letter from Thomas P. Grumbly, Assistant Secretary for Environmental Restoration and Waste Management, Department of Energy, to Representative Neil Abercrombie, Feb. 8, 1994. Back to document

22. For an analysis of the Japan's efforts to assess its proposed dumping of low-level nuclear wastes in the ocean, see Jon M. Van Dyke, Ocean Disposal of Nuclear Wastes, 12 Marine Policy 82 (1988). Back to document

23. Japan's Arrogance and Irresponsibility Harshly Criticized, Nuke Info Tokyo (Citizens' Nuclear Information Center), March/April 1995, at 3. Back to document

24. This assessment has not been widely disseminated, and is titled simply "Summary of environmental impact assessment (Draft)" and marked "Confidential." It reports a measurement of the dose exposure to individuals and groups from two hypothetical sinkings, and concludes that they are less than the exposure from natural radiation and hence are insignificant. This assessment has been described in one publication of the Japan Atomic Industrial Forum, the March 1995 issue of the English-language periodical "Atoms in Japan," which contains a four-paragraph summary stating that the tests performed "proved that exposure dose equivalents to the public would be significantly less than the effective does equivalent limits recommended by the ICRP." This short summary contains a typographical error regarding the "calculated exposure dose equivalent to the public" that makes it impossible to evaluate even the limited information provided. Representatives of Japan's Science and Technology Agency held a briefing on February 13, 1995 on this "assessment," but those conducting the briefing for the Agency acknowledged that they did not know the assumptions on which the calculations were based. Citizens Nuclear Information Center, Brief Record of Meeting with STA on February 13, 1995. Back to document

25. Japan's Arrogance, supra note 23, at 4. Back to document

26. Id. Back to document

27. Id. Back to document

28. Edwin S. Lyman, Sensitization of Stainless Steel Vitrified High-Level Waste Canisters during Production (Feb. 14, 1995); Edwin S. Lyman, Safety Issues in the Sea Transport of Vitrified High-Level Radioactive Wastes to Japan (Dec. 12, 1994). Back to document

29. Lyman, Feb. 14, 1995, supra note 28, at 1. Back to document