Confronting Scientific Skepticism

Confronting Scientific Skepticism

By Jason Rotstein, Staff Contributor

 

“Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time.” Massachusetts v. EPA, 549 U.S. 497, 504 (U.S. 2007).

 

With the appointment of a new EPA administrator, environmental law faces fresh challenges – even to its legitimacy. Whereas the Obama Administration’s first EPA appointee Lisa P. Jackson vowed to “administer with science as my guide,”[1] the new incoming-administrator, Myron Ebell, Director, Center for Energy and Environment at the Competitive Enterprise Institute and chair of the Cooler Heads Coalition,[2] has expressed skepticism with the scientific consensus around human-made global warming.[3] Science’s place within the law,[4] and especially environmental law, has long been questioned. On first impression this appears to be an administration that will have difficulty with science-driven environmental policy. Will science’s firm foothold within environmental law be displaced?  At the very least, this change in administration prompts the questions of: what is the proper role for science within environmental law? Should the evidence about environmental risk be treated with the same scrutiny as forensic evidence at trial?[6] How can the role of science in environmental law be protected?

The answer begins with an understanding of environmental law’s etiology: namely, whether environmental law is defined as a movement, a science, or something else.[7] “[T]he political power of environmentalism has not been in question. In contrast, the information required for regulation has often proven unavailable, making references to scientific uncertainty commonplace in the environmental literature.”[8] In this context, scientific uncertainty means two things: 1) that the science itself is unavailable; 2) or that the scientific methods available produce incomplete or uncertain results. Still, there are scholars that defend that science is the only route to follow stating that “[e]nvironmental decisions should be made through science-based processes,” and that “environmental law is a series of hypotheses that must be tested (and often modified) over a long time horizon by rigorous monitoring and experimentation.”[10] Other scholars view these answers as an effort to “base environmental quality standards on pseudo-scientific evaluations of the risks,” [11] which is “the risk assessors’ trap of assuming facts in order to paper over uncertainty.” [12]

In an administration in which science will potentially be received with greater skepticism, environmental law may need to identify itself and address itself in different ways, or risk threats to its legitimacy.  This move should not be seen as subordinating; for environmental law should not commit itself to seeking legitimacy only through the banner of science – this disguises the normative conclusions, underlying policy choices and determinations at its root.[13] We may be living in an era where environmental law should reevaluate and revisit its source of stronghold and grassroots. Environmental law should be viewed as its own laboratory of democracy in which environmental law actors should “experiment with new ways to incorporate political valuation techniques and inertially technocractic agency choices,”[14] consider “regulatory standard-setting on the capabilities of state-of-the-art technology,”[15] or consider policy choices based on non-science based justifications. Environmental law as a movement and a philosophy is diverse and nimble enough to accommodate some such maneuvering. Environmental law has always been a movement as much inspired by the imaginative environment and atmospherics Rachel Carson sought to establish and preserve in Silent Spring[16] as science.  This may be an era in which more attention is given to evoking what the environment means.

 

[1] See John M. Broder, E.P.A. Pick Vows to Put Science First, N.Y. Times (Jan. 14, 2009), http://www.nytimes.com/2009/01/15/us/politics/15webjackson.html?_r=0.

[2] Myron Ebell, Competitive Enterprise Institute, https://cei.org/expert/myron-ebell (last visited November 28, 2016). Cooler Heads Coalition is a loose-knit group that is “focused on dispelling the myths of global warming by exposing flawed economic, scientific, and risk analysis.” About, GlobalWarming.org, http://www.globalwarming.org/about/ (last visited November 28, 2016).

[3] See Brady Dennis, Trump Taps Climate-Change Skeptic to Oversee EPA Transition, Washington Post (Nov. 11, 2016), https://www.washingtonpost.com/news/energy-environment/wp/2016/11/11/meet-the-man-trump-is-relying-on-to-unravel-obamas-environmental-legacy/?utm_term=.41577a10c243.

[4] See Development in the LawConfronting the New Challenges of Scientific Evidence, 108 Harv. L. Rev. 1481, 1484 (1995). “Since as far back as the fourteenth century, scientific evidence has posed profound challenges for the law. At bottom, many of these challenges arise from fundamental differences between the legal and scientific processes. . . . [L]aw is a normative pursuit that seeks to define how public and private relations should function. . . . In contrast to law’s vision of truth, however, science embraces empirical analysis to discover truth as found in verifiable facts. Science is thus a descriptive pursuit, which does not define how the universe should be but rather describes how it actually is;” “[S]cientific methodologies often include risks of uncertainty that the legal system is unwilling to tolerate.”). See also Margaret A. Berger & Lawrence M. Solan, The Uneasy Relationship Between Science and Law: An Essay and Introduction, 73 Brook. L. Rev. 847 (2008).

[5] See e.g., Adam Babich, Too Much Science in Environmental Law, 28 Colum. J. Envtl. L. 119, 121, 142 (2003) (“[T]he fact that scientists are largely ignorant about environmental risks became a fundamental principle–one of the rocks on which EPA built the modern anti-pollution regulatory system;” “in terms of the standard set by the scientific method, most risk assessment is neither good nor reliable science–it is merely the best science we have on the subject.”).

[6] See, e.g., Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, Strengthening Forensic Science in the United States: A Path Forward 86 (Donald Kennedy, 2009) (“Science and law always have had an uneasy alliance,” “[n]owhere are these dilemmas more evident than in decisions pertaining to the admissibility of forensic evidence.”).

[7] See A. Dan Tarlock, Is There A There There in Environmental Law?, 19 J. Land Use & Envtl. L. 213 (2004). The “fundamental legitimacy [of environmental protection] continues to be questioned, and thus it remains highly vulnerable to political pressures and legal marginalization.” Id. at 220.

[8] Daniel A. Farber, Environmental Protection As A Learning Experience, 27 Loy. L.A. L. Rev. 791, 791 (1994).

[9] See id. at 791, 796-97; Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 Yale L. & Pol’y Rev. 1, 23 (1993) (“The canons of scientific proof are not as clear-cut as they seem; they contain (and conceal) difficult issues of methodology and interpretation, as the many disputes over environmental carcinogens attest.”) (citations omitted).

[10] See A. Dan Tarlock, Is There A There There in Environmental Law?, 19 J. Land Use & Envtl. L. 213, 220 (2004). The author adds that science should not be alone in the new frontier of environmental law: “It follows that the external forces – economics, ethics, and science – that propel environmentalism should shape a new area of the law.” Id. at 230.

[11] Adam Babich, Too Much Science in Environmental Law, 28 Colum. J. Envtl. L. 119, 125 (2003).

[12] Id. at 173. “In terms of the standard set by the scientific method, most risk assessment is neither good nor reliable science–it is merely the best science we have on the subject. Risk assessment, therefore, should be viewed as a policy tool based in part on the work of scientists, not as science. The most obvious problem in applying the scientific method to risk assessment is that it is unethical to conduct experiments on people by exposing them to potentially harmful doses of chemicals.” Id. at 142.

[13] Robin Shifrin, Not by Risk Alone: Reforming EPA Research Priorities, 102 Yale L.J. 547, 575 (1992) (“Though science informs policy choices, however, it cannot make them.”).

[14] See Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 Yale L. & Pol’y Rev. 1, 43 (1993).

[15] Adam Babich, Too Much Science in Environmental Law, 28 Colum. J. Envtl. L. 119, 125 (2003).

[16] See Eliza Grizwold, How ‘Silent Spring’ Ignited the Environmental Movement, N.Y. Times (Sept. 12, 2012), http://www.nytimes.com/2012/09/23/magazine/how-silent-spring-ignited-the-environmental-movement.html.

 

 

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