Houck, “Tales from a Troubled Marriage: Science and Law in Environmental Policy”

Before environmental statutes, people filed tort and nuisance suits to remedy environmental harms. These remedies were insufficient because

  1. “civil law response to a harm already done is little solace for someone who has lost her livelihood or the health of her child”
  2. Science could not make the proof that the environmental damage was responsible

First-Generation Environmental Law: Science Embraced

  • 1960s, environmental statutes emerge that are based on preventing (rather than compensating for) environmental harms
  • Scientists set the standards, based on scientific analysis (e.g., RCRA, Toxic Substances Control Act, etc.)
  • These laws didn’t work well; science is “rarely dispositive” and “in the world of environmental policy, that which is not dispositive is dead on arrival”
  • Why are environmental laws hard to enact? People hate environmental laws because they’re expensive, intrusive, and embarrassing (no one wants to be tagged for poisoning children).
  • Consequences of resistance to environmental laws: action unlikely to happen unless it’s part of law; things nailed down by law still face low compliance rates
  • These standards were difficult to set; the question posed to scientists wasn’t necessarily clear. Ex: Federal Water Pollution Control Act stipulates permissible concentration levels for pollutants. But permissible depends on if the water will be used for fishing, swimming, drinking, etc. Lots of room for argument and disagreement about these thresholds and defining the scientific question.
  • Result – programs stall, much litigation, much effort devoted to ascertaining compliance

Second-Generation Environmental Law: Science Rejected

  • Instead of standards (e.g., permissible levels of a given pollutant), congress bases rules on Best Available Technology (BAT)
  • Theory of BAT – “if emissions could be reduced, just do it.” “Once the technology was identified, they had their discharge limit”
  • Results: compliance was more straightforward (easy to see if they employ the technology or not); resistance in some industries; define the question in a way that skirts taking action (e.g., focus on one step of the paper making process)
  • Due to these shortcomings, need many approaches, including: engineering, science, tort actions, economic and market incentives.
  • Science is no longer king (there are many ways), but science has an important role in sounding the alarm convincing the public there’s a need for some form of action

Four Cautionary Tales

  1. Beware of the lure of a return to “scientific management” – we’ve tried it for decades and it’s failed
  2. Beware the lure of “good science” – “good science” is what supports your views/values. However, note that “most junk science has come from boosters and developers and has erred on the side of unreasonable optimism”
  3. Beware the lure of money – ask “for whom does the scientist speak?”; industry funds many academic positions and academics are rewarded for bringing in money to the university. Money is often hidden in science
  4. Beware the lure of the safe, apolitical life – “given the pressure of environmental issues today and their dependence on science, can scientists afford to sit out?”