Wendy asks a fair question: if I may rephrase, “If not science, then what?” Of course, this rephrasing is a little hyperbolic. No one suggests that there is no place for science. Indeed, as I mentioned before, it is the foundation of our concerns and provides essential (if limited and often uncertain) information about the causes, effects, and cures of environmental harm. Instead, we need to instill a culture of less science, or more precisely, less reliance on science as determining regulatory decisions. Science should inform decisions as one element of a multi-dimensional problem. The National Academies of Science have repeatedly and eloquently described this role for science, and its advice ought to be better heeded.
The culture of scientific determinism, as Wendy, Don Hornstein, and others have demonstrated, has been generated by a combination of legislative policy, political gridlock, administrative convenience, economic self-interest, technocratic enthusiasm, and judicial hostility. As a result, it cannot easily be changed. We have to address the culture in detail, as military strategists put it, in the context of a larger strategy. And academic truth-telling is a good place to begin. Wendy’s “science charade” work introduced the problem across a range of environmental decisions. Gary Marchant and Cary Coglianese’s “shifting sands” article exposed the inadequacy of science-alone as an explanation of EPA’s PM-10 and ozone decisions, though with a different agenda from Wendy’s.
On the legislative front, the culture of scientific determinism can be addressed by moving away from legal standards like “unreasonable risk” or “reasonable certainty of no risk” that invite claims that “the science made me do it.” Technology-based standards are familiar and well understood. Their increased deployment could be very effective. The technology-then-risk strategy for air toxics in the 1990 Clean Air Act Amendments is another good approach, as it mandates a rapid reduction in the great bulk of the emissions, followed at a more leisurely pace by a more scientifically driven approach.
Sid Shapiro and Rob Glicksman (in their fine book, Risk Regulation at Risk) have recommended similarly pragmatic approaches. They advocate “back-end adjustment” standards, which impose aggressive initial controls that are subject to adjustment in individual cases, to account for a number of relevant considerations. By permitting case-by-case adjustments in stringency, method, or time to comply the risk, statutory structure can encourage rapid and large-scale (albeit incomplete) reductions in risk and place the burden of fine-tuning on the risk creators.
John Applegate, CPR Member Scholar; Foskett Professor of Law, Indiana University School of Law, Bloomington. Bio.
| Be the first to comment on this entry. |