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.
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| August 25, 2008
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 […]
Wendy Wagner | August 23, 2008
As the moderator of this blog, I am the designated devil’s advocate. Read together, Rena’s and John’s entries make my assignment easy. Both write upbeat and insightful entries about their preferred approaches for the future, but they reach diametrically opposite conclusions. John suggests that the best solution for the manipulation of regulatory science is to […]
| August 21, 2008
Reading Wendy’s rather gloomy assessment of the abuse of science in regulatory decisionmaking – which is to say, in political decisions – and Rena’s more upbeat reply, I find myself asking why we are so tied to science in the first place. If the science is so subject to bias and abuse, why are we relying […]
Rena Steinzor | August 19, 2008
I think Wendy paints far too black a picture of the current state of affairs, and that rays of sunshine are beginning to poke through this particularly cloudy sky. I rest my case for more optimism on the increasingly aggressive role that scientific advisory boards are playing when political appointees at the Environmental Protection Agency […]
Wendy Wagner | August 18, 2008
One can quickly become depressed by the problems afflicting the science used for regulation of public health and the environment, and CPR bears a substantial share of responsibility for painting a grim picture of a world where politics prevails over science. In a Cambridge-published book, Rescuing Science from Politics, and an accompanying white paper that summarizes […]
William Funk | August 7, 2008
There are three relevant actors in the preemption play: the courts, the executive, and the Congress. For various reasons, the mood of the Supreme Court at the present time is to limit tort actions generally. “Tort reform,” generally unsuccessful in state legislatures and Congress, is being implemented by the Supreme Court unilaterally. Daubert requirements for […]
Nina Mendelson | July 31, 2008
There are two issues kicking around in this discussion: (1) Should state tort law be preempted if there is some sort of federal regulation in place? (2) Which institutions – particularly federal agencies and courts – are legally empowered and/or competent to decide that question? I’d like to chime in on (1), but I hope we’ll […]
Sidney A. Shapiro | July 30, 2008
I’m glad that we have an opportunity to blog about preemption because, as the previous blogs discussed, the folks pushing preemption are so good at creating myths around this subject. One—elaborated on by Tom McGarity—is that the jury system is not to be trusted. Another—discussed by David Vladeck—is that it is up to the courts to decide whether […]
David Vladeck | July 29, 2008
Tom’s point about the use of myths to drive the tort reform agenda is a powerful one. But this battle is about more than myths about torts; it is also a battle about myths about constitutional law. Tort Myths In most of the tort suits that trigger preemption defenses, there is no […]