Environmental law was born out of the new scientific understandings of ecology in the mid-twentieth century. Although science has historically played an important role in environmental law, its role has been more limited than may seem appropriate for an area of law that is so dependent on science to inform sound decision making. Environmental law has not taken full advantage of the plethora of scientific ideas developed in universities and other research institutions throughout the world.1 Unfortunately, these new scientific ideas that could inform and improve environmental decision making rarely seem to find a home in the legal arena.
An example of a well-developed scientific idea that has the potential to benefit environmental decision making is "emergy synthesis." Emergy synthesis provides a method to value natural resources and ecosystem services in a way that captures their inherent value, rather than relying on consumer preferences and other neoclassical-economic approaches to assign them a dollar value. Emergy synthesis could improve environmental decision making under several existing environmental statutes. A few examples where emergy synthesis could play an important role include informing alternatives analysis under the National Environmental Policy Act2 (NEPA), informing cost-benefit analysis, providing a methodology to value services under ecosystem-services-payment programs, and providing useful information under wetlands-regulatory programs to determine if mitigation proposals adequately offset impacted wetlands. Unfortunately, despite the potential benefits of incorporating emergy synthesis into environmental law-and despite the widespread use of emergy synthesis by the scientific community for more than thirty years-legal scholars, practitioners, and regulators have failed to even consider it as an option. While admittedly more work would need to be done to determine what role emergy synthesis should play in environmental decision making, it is curious that a welldeveloped scientific idea with such potential benefits has almost completely slipped under the radar screen of the legal and policy communities.
Emergy synthesis is just one example that illustrates the reluctance or inability of the law to incorporate certain scientific ideas that could greatly advance efforts aimed at sound environmental decision making. While some scientific ideas have easily found a home and proliferated in environmental law, others wait on the sidelines for someone to take notice. One example of a scientific idea that has become ubiquitous in environmental law is that of "risk assessment," a mainstay in modern environmental law. An example of a scientific idea that has received much attention by scientists, regulators, resource managers, and legal scholars, but that has not yet found a home in the law, is that of "adaptive management."
Why do some scientific developments easily gain a foothold in the law while others, which appear to have the potential to be equally useful, remain unknown or unutilized? A number of factors appear to limit the ability of environmental law to adapt to and incorporate new scientific developments that could greatly improve environmental decision making. Some of these factors reflect the inherent conflicts between science and law, while others are more specific to the scientific idea at issue. This Article seeks to identify some of the factors that influence whether scientific ideas are integrated into the law and to explore ways in which the law could be more accepting of potentially beneficial scientific ideas. This Article begins by reviewing the ways in which science informs and enhances environmental law, as well as the barriers that often inhibit new scientific developments from being used in environmental law. While recognizing that barriers and opportunities exist in a number of legal forums, including the judicial setting and the legislative setting, this Article focuses on barriers and opportunities in the administrative-rulemaking and policy-development settings.
To illustrate how legal scholars, lawmakers, environmental agencies, and practicing lawyers have attempted to incorporate new scientific developments into environmental law, particularly in the administrative context, this Article traces the journeys of three distinct scientific developments-risk assessment, adaptive management, and emergy synthesis-from scientific academia to environmental administrative law. These three scientific developments were chosen because, although all three are relatively recent developments, they have had unique journeys and varying degrees of success in being incorporated into the law. Risk assessment has been embraced by regulatory agencies and has become an integral part of environmental law. Adaptive management, on the other hand, while endorsed by scientists and legal academics, has not yet successfully found a home in the law. Finally, emergy synthesis-although it has existed for more than thirty years, has been widely accepted in the scientific community, and has the potential to transform environmental decision making-has been largely ignored by the legal community. Using the framework put forth in the book The Tipping Point3 to evaluate why some ideas catch on and others do not, this Article then explores the reasons why the law has treated these different scientific developments in such dramatically different ways. The Article concludes by making observations about what types of scientific developments are most likely to be incorporated into the law and suggesting ways for improving the likelihood that new beneficial developments will be adopted to inform the law.
II. The Importance of Science in Environmental Law (Why We Should)
Environmental law is a system consisting of numerous statutes, regulations, policies, and court decisions that attempts to reduce or eliminate certain harms to humans and the environment. To reduce or eliminate harm, it is necessary to understand the harm by gaining an understanding of, among other things, the following: whether the risk of harm exists; what the nature of the harm is; under what circumstances or at what levels of exposure the harm is likely to occur; how the risk of harm changes as circumstances change or as levels of exposure change; what technologies, processes, or alternatives can be employed to reduce the risk of harm; how effective those technologies or processes are at reducing that risk; and how cost-effective the different alternatives are. Science can provide information that can help to answer virtually all of these questions.
Of course, the role of science should not be overstated. Science can play an important role in informing decision making, but it cannot answer policy questions, such as how much risk we are willing to tolerate or how much money we are willing to pay to reduce a risk. Pure science may tell us what is likely to happen as a result of a certain action, but it cannot in itself tell us whether that outcome is "good" as a matter of policy. On the other hand, a policy decision about a desired outcome is worth little without scientific information demonstrating whether a particular action is likely to achieve the desired outcome. Because of the stark difference between their two disciplines, lawyers and scientists go about solving problems in ways that do not always make sense to one another. However, there is no question that both are needed to have sound environmental decision making.
The natural world is complex and ever-changing. As the science of ecology has blossomed over the past several decades, our understanding of the uncertainties and complexities inherent in the natural world has grown. Sophisticated scientific understanding is needed to understand how human activity impacts the natural world. Questions regarding the extent of an impact, the long-term implications of an impact, and the ability of the natural world to recover from a particular impact simply cannot be answered without the assistance of science. Neither science standing alone nor law standing alone can fully address the environmental issues we face. Ultimately, environmental decision making must be based on an integration of science and policy.
III. The Disconnect Between Law and Science (Why We Don't)
The uneasy relationship between science and law flows from the inherently different purposes and processes of the two disciplines, which are not easily harmonized.4 The purpose of science is to seek the truth, whereas the purpose of the law is to seek justice or at least reasonable and fair resolution to disputes.5 The scientific process relies on the ability to test hypotheses through the scientific method.6 No matter the inspiration for a scientific hypothesis, every scientific hypothesis ultimately must be subjected to testing and found to be reproducible to be accepted.7 The critical factor in determining whether something is science is whether, at least in theory, it is falsifiable.8 In other words, in theory the hypothesis could be disproved by an experimental result.9 Law, on the other hand, by its very nature deals with human behavior,10 which is profoundly more difficult to subject to falsification through experimentation." Another critical distinction is that while science emphasizes cumulative progress in understanding the world-each experiment builds on previous ones to increase cumulative knowledge-law emphasizes "process."12 In other words, law's primary purpose is to resolve human disputes rather than to continually add to a body of testable knowledge.13
One of the biggest challenges of the legal system is to be able to address the uncertainty inherent in science, which may result from a lack of data, inconsistent data, or conflicts in the interpretation of data.14 Many gaps and uncertainties exist in the scientific information relied upon to make environmental policy decisions.15 Some of the gaps are due to the fact that many areas simply have not been fully studied as a result of limited funding for environmental studies, the low likelihood of being able to reap future profits from environmental studies, or mere lack of interest.16 Other areas that have been studied may still present uncertainty because studies may have inconsistent results or because experts who review the studies may have conflicting interpretations of the quality, meaning, and significance of the studies.17 Finally, many scientific studies in the environmental arena are influenced by political pressure, business pressure, or the impacts of advocacy science that are inevitable when profit-making motives are pitted against environmental or public-health protection.18
Although a significant amount of literature exists examining the often uneasy relationship between law and science, the vast majority of it focuses on the use of science in the courtroom.19 Specifically, much of the literature involves the use of expert witnesses and the challenges judges and juries face in determining the quality of scientific evidence.20 In the courtroom setting, the role of science has been limited by the "gatekeeping" role assigned to judges to determine the reliability of the scientific evidence. The fallout of the 1993 case Daubert v. Merrell Dow Pharmaceuticals, Inc.,2] which solidified this gatekeeping role, has been to create a high hurdle that must be overcome before expert scientific testimony will be permitted in the courtroom. Moreover, judicial proceedings require that, in most civil cases, scientific issues be demonstrated by the party bearing the burden of proof by a preponderance of the evidence, just like any other factual matters must be.22 Accordingly, for a party, such as an environmental regulatory agency or environmental organization, to overcome the Daubert hurdle and to demonstrate by a preponderance of the evidence that its scientific position should prevail is extremely challenging.23 Another obvious reason why law and science have such an uneasy relationship in the courtroom is that the great majority of judges and juries are not educated in the hard sciences and do not have the technical expertise necessary to fully understand, interpret, and apply scientific evidence.24 Moreover, the rapid technical advances in the sciences make it difficult for even those so inclined to keep up with new developments.25 It is no wonder that courts are loathe to accept new cuttingedge scientific developments.
In the administrative-rulemaking arena, it is relatively easy to incorporate new or different scientific ideas as compared to the courtroom setting. If an agency, such as the Environmental Protection Agency (EPA), decides to utilize a new scientific approach, very few legal barriers or challenges exist. There is no Daubert-type requirement that the approach be shown to be reliable before it will be allowed.26 To the extent anyone is playing a gatekeeping role, it is the agency itself. Moreover, if the agency promulgates a rule based on a new or different scientific approach, the standard of review of the agency action generally will be the arbitrary and capricious standard-barring agency action for which there is no reasonable rationale-which at least in theory should be hard to meet.27
Due to the ease with which agencies should be able to incorporate new scientific ideas into their rule and policy development, at least from a purely legal perspective, it is unclear why agencies such as EPA have not taken advantage of the many potentially beneficial scientific ideas that have come out of universities and other research institutions in the United States and throughout the world. The arbitrary and capricious standard of judicial review should in theory result in courts being highly deferential to agency rulemaking and policy development, including in the area of incorporating new or different scientific ideas into agency decision making. However, as other scholars have demonstrated, courts have expanded their role in arbitrary and capricious review via the "hard look" doctrine, which has contributed to regulatory ossification.28 As explained by Professors Lynn Biais and Wendy Wagner elsewhere in this Issue, the fear that courts will scrutinize and strike down their decisions has contributed to the reluctance on the part of agencies to develop new rules or to revise existing rules to take into account new technological developments.29 Likewise, such fears are likely to inhibit agencies from attempting to utilize new scientific ideas. Of course, agencies are subject to political pressures that may influence their willingness to look to the world of science for new ideas. Moreover, it is possible that simple bureaucratic inertia makes agencies slow to adopt new or different ideas. Nevertheless, regardless of the political leanings of a particular administration or the general slow pace of government action, agencies are receptive to some new scientific ideas, but they curiously appear to be reluctant to consider other scientific developments that may help address the many difficult challenges faced by the agencies.
IV. The Use of Science in Environmental Law (How We Have)
Although for the foregoing reasons the relationship between science and environmental law has been strained, historically the law has readily incorporated certain scientific ideas, developments, or approaches, while completely ignoring or even shunning others. For example, risk assessment is a scientific approach that has found a home in many aspects of environmental law and policy. Other scientific ideas, such as adaptive management, while widely discussed in the legal academic literature, have not yet found a strong foothold in the law and are put to limited use in only certain aspects of environmental decision making. Emergy synthesis, a scientific idea whose origins date back more than fifty years, is widely accepted in the scientific academic community, holds great promise as a tool to inform environmental decision making, and yet has barely shown up as a small blip on the environmental law and policy radar screen. This Article asks the question: Why are some scientific ideas embraced by the legal and policy world, while others that appear to be of equal if not greater utility, such as emergy synthesis, are ignored? To attempt to find some patterns, this Article looks at the history of three scientific ideas-risk assessment, adaptive management, and emergy synthesis-to attempt to discern patterns relating to acceptance by the legal and policy communities.
A. Emergy Synthesis
Emergy analysis was developed by Howard T. Odum as part of a broad theory regarding the role of energy in systems derived from Alfred Lotka's "maximum power principle" from the 1920s.30 It appears that Odum's first foray into the concept of emergy began in the 1950s when he, along with his brother Eugene, defined the crucial role of energetics in ecology.31 As part of their work on energetics, the Odum brothers acknowledged that the "quality" and not merely the "quantity" of energy is significant.32 The Odums' recognition that there was a need for a "common denominator" for describing different kinds of energy led H.T. Odum to use the term "embodied energy" to mean the amount of one kind of energy required to make the same amount of another.33 Odum abandoned the term "embodied energy" because it was being used by others for some different purposes and instead adopted the term "emergy."34 Emergy is now commonly understood to capture the idea of energy memory, or in other words, how much of one type of energy is required to make another.35
During the 1970s, H.T. Odum refined his ideas and developed the concept that is now known as "emergy synthesis,"36 which has been further expanded and refined by other scholars over the past thirty years.37 Emergy synthesis provides a methodology to value resources or services based on their "intrinsic" value rather than based on consumer preferences.38 Emergy synthesis is considered a "donor" value system because it is based on the principle that the energy that goes into creating a resource or service determines its value.39 Although emergy synthesis has reached a high level of sophistication and is accepted and used by scientists worldwide,40 to date it has not found a place in the legal or policy arena.41
One potential benefit of emergy synthesis over currently used methodologies is that it eliminates the need to employ neoclassical-economic approaches to value resources or services. Whether, or how, to assign economic value to natural resources and systems has been one of the most controversial areas of environmental law for decades.42 Economics plays a role in many areas of environmental law. For example, most environmental regulatory statutes impose a requirement that either cost-benefit balancing or feasibility analysis be used to determine pollution-control standards.43 In addition, economic analyses, such as cost-benefit balancing, are often used to choose between competing project sites or project alternatives.44 Recently, with the development of ecosystems-services payment programs, economics has taken on an even greater role.45 However, the use of economics in environmental law is not without controversy.46 The criticism of the use of economics in environmental law is in large part attributable to the fact that it relies on neoclassical economics to value ecological resources and services.47
The shortcomings of using neoclassical-economic analysis in environmental law have been well documented.48 One of the most significant shortcomings is the difficulty of assigning a dollar value to many environmental resources and services using neoclassical-economic methods. Most ecological resources and services are not bought and sold on the market and consequently do not have a market value.49 Neoclassical economics attempts to place a dollar value on such nonmarket resources by using "contingent valuation" to determine consumers' willingness to pay for that resource or service.50 Many criticize the use of contingent valuation because many question its assumption that environmental values are significant only to the extent that consumers are willing to pay to preserve them.51 The problems with assuming that a resource's value is only determined by how much a consumer is willing to pay are manifold. First, contingent valuation assumes that consumers have perfect information and adequate technical understanding to determine how much money they would be willing to pay for an ecological resource or service, even one as complex and as little understood as, for example, nutrient cycling. In addition, researchers have demonstrated that the concept of "willingness-to-pay" typically used in contingent valuation is inherently skewed toward valuing the right to use resources rather than the right to preserve resources,52 and that generally, the amount that consumers are willing to pay to protect a resource is only about one-half of the amount that the same consumer would be willing to accept to allow the resource to be exploited.53 Perhaps, most significantly, however, many have argued that consumer preference has nothing to do with the importance of the ecological resource or service for sustaining life on earth.54 Many ecological goods and services are not assigned any value by neoclassical-economic analysis and thus are rarely included in any meaningful way in traditional cost-benefit analysis. Scientists have been working to develop alternative methods for assigning a value to ecological resources and services for many years.55 Emergy synthesis is one of these alternative valuation methodologies, which provides a valuation methodology that relies on science rather than on consumer preferences.
Emergy synthesis has numerous advantages over neoclassical-economic systems of assigning value to resources and services. Emergy synthesis is based on the principle that the energy embodied in a resource or service determines its value. As such, it relies on the intrinsic value of resources and services. Emergy synthesis rejects contingent valuation, a measure of what emergy proponents characterize as a "receiver" system of value, in favor of a donor system of value. A donor system of value based on solar energy required to produce things rejects the underlying assumption of neoclassicaleconomic valuation, which suggests that value stems only from utilization by humans.56
Scientific scholars have analyzed emergy synthesis and have found it to have a number of benefits over traditional approaches.57 For example, emergy synthesis has been lauded in that it provides a bridge that connects economic and ecological systems.58 Since emergy can be quantified for any system, its economic and ecological aspects can be compared on an objective basis that is independent of its monetary perception.59 Emergy synthesis compensates for the inability of money to value nonmarket inputs in an objective manner.60 Moreover, emergy synthesis has been praised for being scientifically sound and sharing the rigor of thermodynamic methods, for utilizing a common unit which allows all resources to be compared on a fair basis, for recognizing the different qualities of energy, and for providing a more holistic alternative to many existing methods of environmentally conscious decision making.61
Although criticisms have been leveled at emergy synthesis, they are primarily based on a lack of understanding on the part of the critics, on insufficient communication of emergy theory outside of the scientific world by emergy scholars, on a lack of clear links with related concepts in other disciplines, and on the types of general criticisms that are often directed at new, groundbreaking ideas.62
One of the fundamental benefits of emergy synthesis is that it represents a new model for a new science that, rather than bridging multiple disciplines, incorporates those disciplines in itself. Emergy synthesis integrates economic and scientific values into one metric.63 Moreover, emergy values resources and services in an objective scientific manner that does not rely on consumer preferences.64 Accordingly, emergy synthesis appears to provide a very useful methodology that could inform the difficult decisions that must be made in the face of less-than-perfect data.
Among the most promising uses of emergy synthesis are as a way to inform decision making on the severity of environmental impacts on an ecosystem, and as a way to choose which is the most environmentally efficient of two or more proposed options for development or restoration. 5 Analyzing all of the emergy inputs and outputs to the ecosystem under each option can tell us which option results in the most emergy loss or gain.
Emergy synthesis can provide an objective measure of inherent value that does not rely on consumer preferences. However, emergy synthesis should not be viewed as a panacea. The information resulting from emergy synthesis, while extremely useful, should not be viewed as providing any absolute answers. The emergy value of a resource or a service, in itself, does not tell you whether that resource or service is good or bad, merely that it possesses a certain level of embodied energy and therefore would require that level of energy to replace.66 The question of whether that resource or service is good or bad is a matter of policy. For example, a pesticide such as DDT, which is made from fossil fuels and requires a large amount of energy to make, has a relatively high emergy level; however, this fact does not say anything about whether DDT is good or bad. The fact that DDT has a high emergy level, however, does provide useful information. High-emergy substances have the ability to have high levels of impacts.67 Thus, a highemergy substance, such as DDT, has the potential to have a high impact to an ecosystem.68 Whether that impact is something desirable, such as controlling pests, or undesirable, such as bioaccumulation in the food chain, however, is a matter of public policy.
To date, emergy synthesis has only been used in a very sporadic, ad hoc manner in environmental decision making. Although the emergy accounting procedure has not been used by environmental regulators in the United States, the United Nations Environment Programme has used emergy synthesis as part of a project to restore West African drylands and improve rural livelihoods.69 Researchers have also used emergy synthesis in a wide variety of case studies.70 Although emergy synthesis has not been integrated into the culture of EPA, it is interesting to note that EPA offers a two-week emergy short course71 and that in 2005 EPA published a report entitled Environmental Accounting Using Emergy: Evaluation of the State of West Virginia?2 Perhaps not surprisingly, the EPA employee responsible for the course and the report is a former graduate student of Dr. Odum.
Given the potential benefits of emergy synthesis to many areas of environmental decision making-coupled with the fact the emergy synthesis has been in existence for decades, has reached a high level of sophistication, is accepted and used by scientists throughout the world, and has been used in the international arena-it is curious that U.S. environmental agencies such as EPA have not undertaken a serious evaluation of the idea.
B. Risk Assessment
Risk assessment entails "evaluation of scientific information on the hazardous properties of environmental agents and on the extent of human exposure to those agents."73 Risk assessment provides information for use in risk management. Risk assessment is comprised of two components, hazard and exposure,74 and is a four-step process.75 First, the hazard is identified to determine the qualitative nature of the adverse consequence.76 Examples of such identified hazards include death, cancer, neurological effects, reproductive effects, and birth defects. Hazard identification is done using lexicological, epidemiological, and other scientific tests.77 The second step is to determine the relationship between levels of exposure and probable adverse consequences.78 In the case of chemical risk assessment, this step involves determining the adverse effect expected from exposure to a certain dose of the chemical.79 The third step is quantification of exposure.80 The amount of the contaminant or other hazard that individuals and populations are likely to be exposed to is determined in this step.81 Finally, the hazard information and exposure information are combined to characterize the risk in probabilistic terms. For example, the risk may be described as 1 ? 10~6, meaning that if one million people are exposed to the chemical, one will contract cancer.
Risk assessment has been used by federal agencies in their decision making since before the creation of EPA.83 In fact, the term risk assessment, in its broadest sense, encompasses any attempt, whether quantitative or qualitative, to evaluate and weigh the likelihood of a particular hazard occurring. Under this broad view of risk assessment, it can be said that risk assessment dates back to early man. In its more commonly recognized form in environmental law, however, modern risk assessment dates back to the mid-1970s and grew out of techniques used by the Food and Drug Administration (FDA) to assess health risks from food additives beginning in the 1940s and 1950s.84 To carry out its mission of evaluating the safety of food additives under the Food Drug and Cosmetic Act,85 FDA developed a number of risk-quantification techniques that form the basis of modern environmental risk assessment.86 Starting in the early 1940s, toxicologists began studying how to establish limits on exposure to hazardous substances to protect human health.87 The rationale behind establishing exposure limits was that "all substances could become harmful under some conditions of exposure-when the so-called threshold dose was exceeded-but... human health could be protected as long as those exposure conditions were avoided."88 Occupational-health scientists began establishing acceptable exposure limits based on short-term toxicity observations in highly exposed work.89 However, scientists were not sure how to set threshold doses for large, diverse human populations and widely varying chemicals.90
Quantitative risk assessment gained a foothold at EPA starting in the mid-1970s, as EPA was tasked to make risk-based determinations under the plethora of new environmental statutes adopted by Congress.91 By the 1980s a number of federal agencies had begun to employ quantitative risk assessment.92 Several factors contributed to the widespread use of risk assessment beginning in the 1980s.
First, the large number of new environmental and health-protective statutes passed by Congress in the 1970s and early 1980s forced agencies such as EPA to develop methodologies to evaluate risk in their decision making. The possibility that carcinogenic substances might act through nonthreshold mechanisms, where exposure to even one molecule is associated with a small but non-zero increased risk of tumor induction, led to the use of dose-response models.93 Scientists avoided identifying "acceptable" levels of carcinogen intakes through the 1960s and 1970s.94 However, by the mid-1970s, a systematic approach for regulating carcinogens was clearly needed.95 At that time, federal agencies, particularly FDA and EPA, began adopting methods for quantifying low-dose risks associated with chemical carcinogen exposure.96
By the late 1970s, the increased trend of risk assessment in carcinogen regulation led to several agencies working together as the Interagency Regulatory Liaison Group (IRLG) to create risk-assessment guidelines.97 The participating agencies made no commitment to adopt risk assessment but would use the approach in the IRLG guidelines if they did decide to use risk assessment.98 By the 1980s, risk assessment had taken on an importance in regulatory agencies that caught the attention of industry.99 The Supreme Court's decision in Industrial Union Department, AFL-CIO v. American Petroleum Institute100 (Benzene) was an impetus for the development of risk assessment by signaling that some form of quantitative risk assessment was required as a prerequisite to deciding whether a risk was large enough to merit regulation.101 Thus, in 1981, the National Research Council (NRC) was instructed to undertake a study of federal agency use of risk assessment.102 This study was more of a synthesis of the earlier work of federal agencies, including EPA, and did not recommend a specific method of risk assessment.'03 Many of the recommendations made by the study have been implemented by EPA, including maintaining a clear conceptual distinction between risk assessment and risk management and developing guidelines detailing the scientific basis of risk assessment.104 In 1983, when President Reagan appointed William Ruckelshaus as EPA Administrator, Ruckelshaus made risk assessment a top priority, and under his direction, risk assessment became an integral part of virtually every program administered by the Agency.105
After the release of the 1983 NRC Report, the Office of Science and Technology Policy (OSTP) issued a comprehensive review of the scientific basis of risk assessment of chemical carcinogens in 1985.106 This review adopted the risk-assessment framework recommended in the 1983 NRC Report and provided federal agencies a basis for developing the guidelines also recommended by NRC.107 EPA was the only federal agency to adopt a set of carcinogen risk-assessment guidelines as recommended.108 In 1986 and 1987, EPA published risk-assessment guidelines for mutagenicity, developmental toxicity, effects of chemical mixtures, and human exposure.109 In 1988, EPA published risk-assessment guidelines for female reproductive risk, male reproductive risk, and exposure-related measurements."0 Finally, revised guidelines for development toxicity and revised guidelines for human exposures were published by EPA in 1991 and 1992, respectively.111 It was at this time that EPA also published its groundbreaking report, Reducing Risk: Setting Priorities and Strategies for Environmental Protection. '12
Today, EPA's National Center for Environmental Assessment (NCEA) is responsible for providing guidance on how pollutants may impact human health and the environment."3 Additionally, NCEA administers the Global Change Research Program and the Integrated Risk Information System Program.114
Currently, risk assessment is used in virtually every area of environmental law. EPA uses risk assessment to guide decisions covered by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and the Clean Air Act (CAA).115 Its most significant role is in establishing dose-response relationships for chemical substances, such as pesticides, contaminants in drinking water, and air pollutants.116 Such dose-response relationships are critical to characterize and quantify risk for subsequent risk-management decisions.
C. Adaptive Management
Adaptive management is defined as an "iterative, incremental decision making process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly."117 Adaptive management is iterative in that it relies on adjusting actions based on new information gleaned through monitoring.118 It strives to characterize uncertainty though multi-model inference and Bayesian inference.119
The concept of adaptive management was developed in the 1970s and 1980s by two ecologists, C.S. Holling and Carl Walters, at the University of British Columbia.120 Later, Holling, while the director of the International Institute for Applied Systems Analysis (IIASA) in Vienna, Austria, further developed the approach.121 Although the adaptive management concept originated from the works of Holling and Walters in the 1970s and 1980s,'22 it can be traced back to Charles E. Lindblom's article, The Science of "Muddling Through," published in 1959.123 Holling incorporated the concept of resilience into policy design as an alternative to environmental assessment,124 which he found to be a "reactive approach" that "[would] inhibit laudable economic enterprises as well as violate critical environmenttal constraints."125 Holling described adaptive management as "integrat[ing] environmental with economic and social understandings at the very beginning of the design process, in a sequence of steps during the design phase, and after implementation."126
Walters described adaptive management as a way to deal with scientific uncertainty when managing renewable resources, especially since resource managers had begun relying on quantitative modeling as a tool to predict responses to alternative harvesting policies.127 According to Walters, renewable-resource scientists had made major errors by not putting greater emphasis on socioeconomic dynamics in their research and management and in their approach to dealing with scientific uncertainty.128 Instead of cautiously regulating harvests while seeking better understanding through more and more detailed analyses, Walters suggested using an adaptive management process "where management activities themselves are viewed as the primary tools for experimentation."129
The need for an adaptive approach to management became apparent in light of a new understanding of ecosystems as being "dynamic and stochastic rather than in equilibrium."130 Since then, government agencies have been trying to account for the disparity between science and environmental law and to formulate a system that can adjust to confront scientific uncertainty.131 However, environmental regulation that can provide "feedback loops to update regulatory efforts as information increases" is "counterintuitive for the American legal system, which puts a premium on firm rules of law."132 Thus, adaptive management has not been seriously incorporated into environmental law.133
Environmental law often requires that regulation be based upon the "best available scientific knowledge," which is a principle of ecosystem management.134 According to J.B. Ruhl, "[e]cosystem management is exactly what it sounds like-managing ecosystem-level problems through ecosystem-level approaches-and it almost always calls for creative and adaptive use of policy instruments as varied as inflexible commands at one extreme to generous incentives at the other."135 Adaptive management, also a principle of ecosystem management,136 "increasingly has become synonymous" with ecosystem management.137 Although the concept of adaptive management has not yet been integrated into environmental regulatory programs, it has been used in a number of resources-management programs. For example, the Columbia River Basin Fish and Wildlife Program, considered the first application of adaptive management in resource management,138 was the world's largest biological-restoration program in 1986.139 Intensive management of the Columbia River Basin began with the listing of several Snake River salmon populations as endangered.140 Congress passed the Pacific Northwest Electric Power Planning and Conservation Act,141 which established the Pacific Northwest Electric Power and Conservation Planning Council (the Council).142 The Act mandated that "[t]he Council shall promptly develop and adopt... a program to protect, mitigate, and enhance fish and wildlife .... [T]he program, to the greatest extent possible, shall be designed to deal with that river and its tributaries as a system."143 The Act also requires that fish and wildlife are accorded "equitable treatment" with the multiple purposes of the hydroelectric projects.144 Finally, the Act requires that the "best available scientific knowledge" be used.145
The Council adopted an adaptive-management policy as part of its action plan. Agencies involved included the Federal Energy Regulatory Commission, the Bureau of Reclamation, and the Army Corps of Engineers.146 Professor Kai Lee, a member of the Council, suggested adaptive management in 1984.147 The Council found that using adaptive management as a policy framework "recognizes biological uncertainty, while accepting the congressional mandate to proceed on the basis of the 'best available scientific knowledge.'"148
In 1992, NRC conducted a study on the use of adaptive management for the restoration of aquatic ecosystems.149 The study has been cited as an example of how legal academics view adaptive management in terms of how resource management should be conducted.150 The study suggested using the adaptive environmental assessment (AEA) developed by C.S. Moiling as an appropriate "process for involving scientists, resource managers, policy analysts, and decision makers interactively in designing resource management problems."151 In formulating its national restoration strategy, the NRC established adaptive management as a principle for priority setting and decision making in the face of scientific uncertainty.152 The example used by NRC was Chesapeake Bay's nutrient-management strategy, in which the initial goal was set to reduce nutrient loading by 40%.153 The policy makers committed to a continuous study of the goal itself, as well as the cost and effectiveness of the chosen means.154 As a result, both the goals and approaches of the nutrient-management strategy are subject to revision over time.155
Federal agencies have used adaptive management in a number of resource-management and restoration programs. For example, the U.S. Forest Service expressly adopted adaptive management in its plan governing federal lands in Oregon, Washington, and northern California.156 As part of the Everglades restoration program, the Army Corps of Engineers adopted adaptive management.157 The Army Corps of Engineers used adaptive management as a tool to confront the ecological uncertainties in deciding what a restored Everglades ecosystem should look like.158 Moreover, the congressional mandate to experiment with water deliveries to the Everglades National Park from the Central and Southern Flood Control Project is cited as one example of "legislative authorization to pursue an adaptive management policy."159 A final example is the Army Corps of Engineers' 2001 adoption of the concept of adaptive management that was published in the Revised Draft Environmental Impact Statement (RDEIS) for the Missouri River Master Water Control Manual (Master Manual).160
During the 1990s the idea of adaptive management became much discussed in both the scientific and legal literature. Although adaptive management is widely touted in both, its role in environmental law to date has been very limited. Thus far, adaptive management has been used primarily as a resource-management tool in such areas as fisheries management or public-land management.161 Although often proposed as a needed component of environmental regulation, adaptive management has not yet been integrated into environmental regulatory programs. Adaptive management is not yet pervasively used in environmental law. It has only been expressly adopted in four statutes.162 The Department of the Army, the Army Corps of Engineers, the Forest Service, and EPA have all expressly incorporated adaptive management into their regulations.163 Although the success of adaptive management as a component of environmental regulation is still uncertain, it has still proven to be an effective approach for the management of complex ecosystems.
V. Why Some Scientific Ideas Stick and Spread
A useful framework for evaluating what conditions are significant for a scientific idea to gain currency in the law and policy arenas is found in Malcolm Gladwell's 2000 bestselling book, The Tipping Point(TM) The significance of the who, what, where, and when of the development of a scientific idea to its adoption in the law parallels the significance of these factors to determining whether and to what extent any new idea or trend is adopted and spread. Sociologists have studied various factors that contribute to new ideas or trends gaining currency.165 Many of the ideas gleaned from these studies have been integrated into Gladwell's book.166 This book explores the phenomenon of how what Gladwell describes as "social epidemics" work.167 The term "social epidemic" encompasses a large range of phenomena, including the emergence of fashion trends, crime waves, books becoming bestsellers, and a variety of other social trends that emerge and rapidly spread throughout our culture.168 According to Gladwell, one critical characteristic of social epidemics is that, rather than occurring gradually, change happens "at one dramatic moment," which he describes as the "tipping point."169 Three factors appear to be critical in creating a social epidemic: (1) the law of the few, (2) the stickiness factor, and (3) the power of context.170 The "law of the few" holds that in any given situation, a very few people will have the most influence.171 The "stickiness factor" relates to the specific characteristics that make a particular idea memorable enough to be adopted and spread.172 The "power of context" is based on the idea that human beings are much more sensitive to their environment than they may seem, and thus, contextual circumstances can have significant influence over individuals' actions.173 These three rules explain the circumstances under which social epidemics typically occur and provide a roadmap for how to promote future social epidemics.174
To attempt to identify possible reasons why some scientific developments, such as risk assessment, find a home in the law, I began by looking at each of the three scientific developments discussed in this Article in terms of the who, what, where, and when. First, I examined who developed the idea and whether the position or stature of the person or persons who developed the idea (the "who") impacted the acceptance of the idea by the legal and policy community. Next, I examined the nature of the scientific idea (the "what") to see if any pattern emerged. As to the "where," I looked to see where the idea first got a foothold-in the general public debate or in the law itself-to see if one tends to follow from the other. Finally, I considered the time at which the idea was developed to see if the timing of the development of the idea correlated with other events that may have facilitated the movement of the idea into the legal and policy realm. These factors fit neatly into the Tipping Point framework.
A. The Law of the Few (The Who)
The "law of the few" holds that in any given situation, a very few people will have the most influence.175 Research into the origins of social epidemics reveals that they are driven by the influences of a very few exceptional people.176 In The Tipping Point, Gladwell explains how word of mouth, as opposed to concerted advertising or sales approaches, is one of the most important factors in the spreading of an idea or trend.177 The success of the spread of an idea is therefore largely dependent on the social abilities of those few individuals who influence the word-of-mouth spreading of an idea.178 Gladwell groups these exceptionally socially gifted people into three categories:179 (1) connectors, people who have special gifts in bringing together others from different social and professional circles,180 (2) mavens, people who are obsessed with collecting information and have the desire to share their knowledge with others,181 and (3) salesmen, people who have the skills necessary to persuade others of their views.182
The need for connectors, mavens, and salespeople to turn an idea into a social epidemic also applies to getting scientific ideas to be accepted and widely used in the law. An examination of the roles that scientists and policy makers have played in developing and disseminating the three scientific ideas discussed in this Article suggests that where environmental agencies, such as EPA, fail to employ connectors, mavens, or salespeople in key positions, a scientific idea is not likely to catch on in the Agency.
As described above, risk assessment was initially developed primarily by the FDA and later refined by EPA with considerable input from the NRC, whereas both adaptive management and emergy synthesis were developed by university scientists. Adaptive management was developed by scientists at the University of British Columbia and subsequently refined when C.S. Holling directed the IIASA in Vienna. H.T. Odum, a professor of environmental engineering sciences at the University of Florida, developed emergy analysis. The subsequent expansion and refinement of emergy synthesis resulted primarily from the work of researchers at the University of Florida or researchers who received all or part of their graduate education at the university under the guidance of Dr. Odum and his protégés. Of the three scientific developments discussed in this Article, risk assessment alone has become an important part of environmental law and policy. Unlike the developers of emergy and adaptive management, who were university researchers, the individuals who were critical to the development and spread of risk assessment were government employees.
In Tipping Point parlance, researchers such as Dr. Odum and Dr. Holling would be considered the mavens. These researchers were driven to gather information, develop ideas, and solve problems. They sought to help society by finding ways to address its problems with scientific solutions. They may have even been skilled at communicating their ideas to others. However, for an idea to spread, it is not sufficient to merely rely on mavens: connectors and salespeople are equally important. Unlike emergy synthesis and adaptive management, risk assessment appears to have had connectors and salespeople involved in spreading its virtues. For example, agency scientists and policy makers at the FDA and EPA appear to have played the role of connector, reaching out to the research community to find ideas that they could bring back to the agencies and tailor to fit the agencies' needs.183 Moreover, it could be said that EPA Administrator William Ruckelshaus played the role of salesperson, praising the virtues of risk assessment and persuading his staff and others that risk assessment was the proper tool for answering the difficult risk-based questions EPA faced.184 Emergy synthesis and adaptive management do not appear to have had clear connectors showing agencies how these scientific ideas could be used. Nor do they have salespeople, such as a Ruckelshaus, with the credibility, stature, and persuasive ability to sell the ideas. Perhaps emergy synthesis and adaptive management would have gained more traction had there been connectors and salespeople championing these ideas. As described in more detail below, part of the reason for the lack of connectors may be related to the cultural shift that has occurred in regulatory agencies such as EPA since the privatization and outsourcing trends began.
Because risk assessment was sought out and developed by the federal agencies themselves, it was easily incorporated and quickly spread throughout the legal and policy arena. Moreover, Ruckelshaus's commitment to risk assessment and his leadership integrating risk assessment into virtually every program within EPA appears to be a critical factor in risk assessment's ubiquity.185 Courts also played a role in encouraging the widespread use of risk assessment. In the 1980 case Benzene, the court invalidated an Occupational Safety and Health Administration (OSHA) rule lowering the acceptable level of benzene exposure because OSHA had not demonstrated "significant risks."186 To determine whether a significant risk exists, it is necessary to engage in some type of assessment to measure risk. Consequently, OSHA and other agencies began to focus on more quantitative risk-assessment methodologies that would assist them in withstanding judicial scrutiny.187 Finally, in 1983, NRC issued a report on risk assessment that helped to standardize the methodology and that established risk assessment as a mainstay of environmental and health policy.188 The confluence of these events in the early 1980s appears to have firmly planted quantitative risk assessment in the environmental and health decision-making processes throughout the federal government.
Neither adaptive management nor emergy synthesis has been sought out by federal agencies to address any pressing need resulting from new congressional or judicial mandates. Likewise, neither idea has had a champion such as Ruckelshaus within the high ranks of government. Instead, both were developed in universities by research scientists on their own initiatives.189 Thus, although both ideas have the potential to greatly improve environmental decision making, agencies have not taken ownership of the ideas.
Both the late Dr. Odum and Dr. Holling are internationally renowned scholars. In fact, Dr. Odum and his brother Eugene commonly are thought of as the fathers of modern ecology, and their names are known to virtually everyone who has ever taken a college ecology course.190 Nevertheless, Odum and Holling's ideas have not been adopted by environmental agencies for incorporation into environmental decision making. The fact that a scientific development comes out of a well-respected research institution or from an internationally renowned researcher appears to be of little import. Of the three scientific approaches discussed in this Article, risk assessment, the only of the three that was not developed by an internationally respected researcher, has become used widely in environmental decision making. As described above, risk assessment was developed primarily by federal regulatory agencies, such as FDA and EPA, both of which were in need of a methodology to evaluate risks under their statutory mandates from Congress. Both agencies were actively looking for a methodology to use and were supported by the work of NRC, which further developed the methodology. It appears that one of the most important factors in determining whether a scientific idea will be incorporated into the law is whether the regulatory agency is actively seeking a scientific methodology or approach to address a specific concern or to answer a specific question, particularly when ordered to do so by Congress. University scientists may toil in laboratories or in the field for decades developing extremely useful ideas, but unless the agencies are looking for such ideas, they are unlikely to be embraced.
B. Stickiness (The What)
The second factor identified in The Tipping Point as being necessary for an idea to catch on is referred to as the "stickiness factor." "Stickiness" is a characteristic of successful ideas.19' In order for an idea to catch on and spread, it must be "sticky," meaning that the idea must be memorable and must move people to act.192 The idea of "stickiness" has been further developed in the recent book Made to Stick: Why Some Ideas Survive and Others Die.193 This book posits that while some ideas are inherently interesting and others are not, there is something more at work that determines why some interesting ideas fail to catch on.194 The book identifies six principles of "sticky" ideas: (1) simplicity, which depends on stripping an idea to its core; (2) unexpectedness, which suggests that an idea must be counterintuitive to generate interest and curiosity; (3) concreteness, which requires that an idea be explained in terms of human action using concrete images; (4) credibility, which requires that the ideas themselves carry their own credentials; (5) emotion, which suggests that the idea must make people feel something; and (6) stories, which suggests that using stories is a way to motivate people to act.195
Applying these stickiness factors to the three examples of scientific ideas suggests that risk assessment is stickier than either adaptive management or emergy synthesis. First, at least on its face, risk assessment is simpler than the other ideas. second, risk assessment is easier to describe in terms of concrete examples. Third, risk assessment, at least as it has been presented to the public, seems to carry with it an air of credibility in that it appears to be highly objective and quantitative and to result in clear-cut answers. Finally, because risk assessment is used to analyze human risks from dreaded diseases, such as cancer, it can be presented via real-life stories that evoke emotional responses.
One reason why risk assessment may have been so readily integrated into legal policy is that, at least on its face, it is easy to understand and appears to be a relatively straightforward method to provide clear answers to technical questions. However, although relatively easy to explain and to understand, it is rife with difficulties, prone to error, and yields often uncertain results.'96 Most of the difficulties of risk assessment occur during the second and third steps of the process. During the second step, where the relationship between the dose and the probability of harm is determined, complexity and uncertainty result from the fact that results must be extrapolated from animal tests to humans, or from tests on one species of animal to another species of animal. Not only is there uncertainty over whether species-to-species extrapolation is valid, but even within species, individual variability and susceptibility also make extrapolation inherently suspect.197 Moreover, due to the nature of laboratory animal testing, results from tests conducted with extremely high dosing must be extrapolated to lower dosing.198 To account for these problems inherent in animal testing, "safety" factors are applied to ensure that results are sufficiently conservative.199 With regard to the third step in risk assessment, uncertainty arises from the huge variability in exposure that is likely to result in different locations, with different lifestyles, and because of other variables. Risk assessment is considered by critics to be overly quantitative and reductive.200 Finally, perhaps the least understood issue with the method: risk assessment does not tell us anything about what level of risk is acceptable as a matter of policy, how to reduce risks to acceptable levels, or how to take into account economic or other social costs in deciding how to manage risk.201 Risk assessment, in itself, merely provides a way to determine the amount of risk posed in a given situation, which can inform policy decisions regarding risk management. Thus, although risk assessment on its face is easily understood and has a superficial appeal, it is rife with complexity and uncertainty and provides only limited information. Nevertheless, despite its shortcomings and complexities, risk assessment has been embraced by the law.202
By contrast, adaptive management and emergy synthesis do not have the superficial appeal of risk assessment. By their very nature, they acknowledge the complexity of natural systems. Adaptive management also is based on the concept that natural systems are constantly changing, adding another layer of complexity.203 Neither attempts to hide behind a veil of simplicity by being highly reductive, like risk assessment. Moreover, adaptive management, in particular, unabashedly embraces uncertainty, whereas risk assessment attempts to eliminate uncertainty by imposing overly simplistic "safety" factors to disguise what are inherently uncertain results.204 Consequently, these complex and difficult-to-understand ideas are not easily integrated into a legal system that seeks simplicity and certainty. Agencies do not appear to be looking for new methodologies that further complicate their jobs and that are not easily translated to nonexpert government leaders and the public. Emergy synthesis is not easily understood by nonexperts. This is perhaps due to the fact that most laypeople are not comfortable with concepts like thermodynamics, which is at the root of emergy synthesis. Finally, it is interesting to note that the term "emergy" is not a commonly used term and is often considered to be a typographical error. Thus, it is possible that the name itself has made the approach less accessible and less attractive to those who might benefit from its use.
In addition to the simplicity factor, risk assessment appears to be stickier than the other models due to the fact that it can be described in more concrete terms using more concrete examples than can the other ideas. For example, risk assessment can be described as a way to determine how many people exposed to a certain dose of a chemical substance will contract cancer. Examples to help illustrate can be given using laypeople's everyday experiences. For instance, risk assessment can be presented in terms of what percentage of people who get into car accidents not using their seat belts will die, or what percentage of people who smoke cigarettes are likely to get lung cancer. These concrete examples are part of our everyday lives and therefore immediately connect with most people. Not only are these concrete examples easy to relate to, but they also provide a clear, concrete action that individuals can take to reduce their risk, e.g., wearing seat belts or quitting smoking. Such simple, concrete examples for adaptive management and emergy synthesis, on the other hand, are not as easy to come by. It is more difficult to explain to a layperson via concrete examples what emergy is, why it matters, and what specific actions they should take in response to a particular emergy synthesis. Likewise, adaptive management by its very nature is not particularly concrete because it is concerned with the changing nature of systems and the iterative process that should be used to address changing circumstances and changing information. Despite these difficulties, however, it is possible to present these ideas in more concrete ways with clearer paths of action. For example, emergy synthesis could be explained in terms of a fifty-year-old tree in a backyard, which could be valued in a number of ways. You could burn the tree and measure its energy output and assign a market value to the number of BTUs of output. Alternatively, you could sell the tree to a lumber company and assign a value based on the price the lumber company is willing to pay for the tree. Using emergy synthesis, you could determine all of the energy that went into creating the tree and the services it provides, including fifty years of solar energy, water, nutrients, and human labor in pruning the tree. The value of the tree from this perspective is likely to be dramatically higher than the value based on the amount of energy released from burning the tree or the price a lumber company would be willing to pay for the tree. Such an analysis could be used to demonstrate that there is great value in allowing the tree to stand rather than cutting it down for a relatively small amount of money. To date, emergy and adaptive-management scientists have not been successful at packaging their ideas in simple, concrete ways or using concrete examples that prompt people to take action.
Similarly, with regard to the credibility and emotion components of stickiness, risk assessment has been an easier sell. Despite the complexities and uncertainties associated with risk assessment, it is typically presented as a very scientific, objective, and quantitative method in which information is fed into the assessment and "the answer" is spit out. Of course, this is a great oversimplification, but because risk assessment has been presented in this overly simplified way, it brings with it an air of credibility. Emergy synthesis and adaptive management, on the other hand, embrace complexity. Neither emergy synthesis nor adaptive management purports to provide "the answer." As described above, a determination that a resource or service has a high emergy value says nothing about whether it is a positive value or negative value. Such determinations must be made at the policy-making level. Similarly, adaptive management inherently recognizes uncertainties and changes in our understanding of the world. Accordingly, both emergy and adaptive management appear to be less objective, quantitative, and absolute, which probably undermines the credibility afforded them.
Finally, because risk assessment came about in response to the concern that certain environmental exposures cause cancer in humans, it has been shrouded in human emotion from the beginning. Cancer is a dreaded, insidious disease that often leads to death and for which the medical treatment itself can be devastating. Emergy synthesis and adaptive management, both of which typically are used to evaluate effects on natural systems and methods to minimize or manage such effects, do not carry with them that type of direct, human emotional charge. Accordingly, emergy synthesis and adaptive management appear to be intrinsically less sticky and less easily made to be sticky than risk assessment.
C. The Power of Context (The Where & The When)
The Tipping Point describes the "power of context" as the third factor that determines whether an idea will catch on.205 The power of context relates to the fact that social epidemics are sensitive to the social environment in both the time and the place in which they occur.206 For an idea to catch on and spread, the circumstances must be right. In other words, the idea must be in the right place at the right time. As described below, risk assessment came into its own during a time and under circumstances that were not only amenable, but desperate, for it. To date, the circumstances do not appear to be ripe for emergy synthesis or adaptive management.
1. The Where.-One variable to consider in determining the extent to which a scientific idea gets picked up by the law is the extent to which it is widely known by the public at large. To attempt to get a sense of the relationship between a scientific idea's prevalence in general and its prevalence in the legal scholarship, judicial decisions, and administrative arena, I conducted the following computer search on Google, Westlaw, and ISI Knowledge Web.207
Although the number of hits from Google and Westlaw searches is admittedly an extremely crude metric, it does provide some sense of the acceptance and use of the respective scientific approaches in the law and in the broader public arena. In general, there appears to be a pattern in which the prevalence of a scientific idea decreases roughly proportionally as you move from a generic Google search to law reviews, legal journals, and Federal Register notices (which have roughly equivalent numbers of hits) to federal judicial opinions and finally to the Code of Federal Regulations. While such a crude analysis certainly should not be afforded too much weight, it does reveal a general trend wherein the prevalence of a scientific idea in the legal arena is a roughly proportional fraction of its prevalence in the broader public arena. One explanation for this trend could be that it takes a high level of prevalence of an idea in the general public arena before the idea will be accepted by the legal community. However, this is not the only conclusion that could be drawn. It is possible that the prevalence of a scientific idea in the legal arena leads to a situation where the idea becomes a ubiquitous part of the broader public debate. Whichever came first-the legal or the public-a relationship does exist, and perhaps more significantly, a pattern emerges wherein the prevalence of an idea in the legal scholarly literature and in the administrative-policy arena, as captured by the Federal Register, are proportionally greater than the prevalence of the idea in judicial opinions or codified regulations. One explanation is that it is not until a scientific development is vetted in the legal-scholarship and agency-policy arenas that the idea is ripe to be integrated into the courtroom or codified as a regulation.
2. The When.-Risk assessment came into its own during the heyday of the environmental era of the 1970s. According to former EPA Administrator William K. Reilly, risk assessment gained currency in environmental decision making in the 1970s and 1980s in large part because, during that time, EPA was charged with implementing a large number of programs under the newly adopted CAA, CWA, RCRA, CERLCA, and TSCA.208 Thus, according to Reilly, "even the most idealistic and protective of the EPA staff realized that they could not eliminate all risk and had to allocate resources in such a way as to address the most significant risks.209 At the same time, technological advances allowed for the first time for substances to be detected in extremely minute quantities, forcing EPA to acknowledge that it could not reasonably require the elimination of all traces of chemicals in every medium and therefore had to make difficult choices regarding what level of risk would be considered acceptable. To make these decisions, a methodology for predicting levels of impact was necessary. Despite the complexities, uncertainties, and controversy surrounding it, risk assessment stepped in to fill this need and soon became the dominant approach used by EPA. Risk assessment also provided a scientific rationale for EPA to defend the decisions it made.
While both adaptive management and emergy synthesis date back to the 1970s, it was not until the 1990s that both achieved widespread acceptance in the scientific community. By the 1990s, the culture of EPA had radically changed from what it was in the 1970s. Moreover, at the time risk assessment became widespread, the focus of environmental law was mediabased and human-health-based. The fact that most of the laws administered by EPA are media-based also appears to make risk assessment, wherein individual chemicals or pollutants can be tested in individual media to determine the level of risk they present, an easy fit. Adaptive management and emergy synthesis, on the other hand, are not by nature media-based. Instead, they both recognize and attempt to understand the complexity of nature systems and take a holistic approach to evaluating the impact of human activity to such systems. It was not until much later that the approach of looking at the impact of one chemical at a time in one medium (e.g., air, water) was called into question.210
Moreover, as former EPA Administrator Douglas Costle has stated, during the early years of the Agency, EPA viewed itself as being on a learning curve, and it continued to take in new information and to adjust its activities accordingly.211 In more recent years, the culture of the Agency appears not to be one of "learning" but instead appears to be one of "justifying."212 Most federal environmental laws came into being during the 1970s and 1980s. Since that time, significant scientific advancements have been made, particularly in the ecological sciences. Scientists have begun to recognize the need to look more holistically at ecosystems.213 This broader holistic approach inherently brought with it a need for approaches that deal with, rather than ignore, the complexities and uncertainties inherent in ecological systems.214 Unfortunately, at the same time researchers were gaining a better understanding of the complex nature of ecological systems, the public and our political systems were becoming more skeptical of science and less open to incorporating new scientific developments into the law.215 In this new anti-science environment, science frequently is used to justify predetermined results. If the scientific information does not support the predetermined result, it is ignored or discredited as being "junk science."216 As described by Professor Holly Doremus elsewhere in this Issue, there has been a trend in recent years to politicize science either by administration officials pressuring agency scientists to alter results to support a particular policy or political agenda, or by science being criticized as junk science whenever it does not support a particular political agenda.217 Such politicization of science results in fewer high-quality scientists desiring to work for EPA for fear that their work will be distorted or attacked as junk science.218 Likewise, those scientists who do stay at the agency may be more willing to bend their science to fit the political agenda rather than risk losing their jobs or having their work attacked as being junk.
During the early years of EPA, the agency was staffed with scientists and others concerned with developing and implementing regulations and policies to protect human health and the environment.219 Starting with the Reagan administration in the early 1980s, the emphasis shifted to be one of working with industry and with an ever-greater emphasis on economic considerations.220 Along with this shift, another shift was taking place which derided "big government" and sought to reduce the size of government in part by privatizing and outsourcing government functions. Many of the jobs, including scientific jobs, previously held by EPA and other agency employees were outsourced to private organizations. Jobs that once required scientists were filled with employees who, rather than being good at or caring about science and keeping up with new scientific developments, had good administrative skills.221 Scientists who once staffed environmental agencies such as EPA soon found their roles changing from scientists to project managers.222 A major culture shift occurred.
Of course, in environmental regulation, science is an important component. Nevertheless, EPA gets most of its scientific information from outside of the agency.223 Except in its earliest years, EPA has never identified itself as a "science agency."224 Instead it has identified itself as a regulatory and enforcement agency.225 Since its inception, EPA has become less and less science-oriented.226 Examples of this trend are seen in changes both in EPA's science budget and workforce makeup over the past thirty-plus years. In 1973, approximately one-third of EPA's total budget was dedicated to its Office of Research and Development (ORD).227 The science budget declined over the 1970s, and by 1980 only approximately 20% of EPA's budget was devoted to science.228 This science budget suffered substantial decreases during the Reagan Administration, such that in the mid-1980s, the ORD accounted for only approximately 3-4% of EPA's total budget.229 By the mid-1990s the ORD's budget was still only approximately 7% of the total.230 This level of science funding is surprisingly small for an agency whose work is so heavily dependent on complex scientific issues. By contrast, FDA's scientific research budget is approximately 20% of its total budget.231
Although EPA has a large number of employees with scientific educations, due to decreasing emphasis on scientific research and outsourcing of scientific work, most of these employees' duties are contract management, as opposed to science.232 Because these EPA employees with scientific education, including those with graduate degrees, do not get to practice their craft as scientists,233 their scientific skills become rusty, and they are not as likely to keep up with scientific developments.234 Starting in the 1980s, more and more of EPA's scientific work began to be done by contractors. By 1991, 80% of EPA's research and development budget was paid to outside science contractors.235 Thus, EPA's overall trend has been a dramatic decline in science resources, while, at the same time, those resources devoted to science are primarily going to outside contractors. The combination of these two factors has resulted in EPA's remaining science staff spending their time on contract management and administrative work rather than scientific work.236
By necessity, when a job changes from being one of a scientist to being one of a project manager charged with administering a contract and overseeing the work of outsourced scientists, the role of the in-house employee becomes dramatically altered. Like an in-house corporate attorney versus an outsourced litigating attorney, the in-house employee must concern herself with contract matters, administrative bureaucracy, quality control, scope of work, deliverables, etc., rather than with the actual, substantive scientific issues. Scientists who desire to do real scientific work typically are not interested in project management. Those that are interested in administrative work are less likely to view themselves as scientists or to take ownership of the science and are less likely to keep up with new scientific developments or push for their inclusion in the law. At the same time, contracting firms doing scientific work for the agency have no economic or professional incentive to try new things. They are rewarded for doing what is in their scope of work and for completing the deliverables in their contract. Incentives exist to get more contracts and make more money. No incentive exists to take the time to learn about new scientific developments, to determine how they could be used by the agency, and to convince the agency to adopt them.237 Proposals to further outsource and privatize science at EPA and other agencies continue to be made.238
Another potential contributor to the cultural shift at EPA is the generic tendency for ambitiousness and enthusiasm to erode in governmental and other organizations after the initial momentum from their founding push has worn off. Perhaps part of EPA's culture shift simply reflects the human and organizational reality that at some point the honeymoon ends and a less exciting, less hopeful, and more mundane reality sets in. Another related issue is that due to EPA's regulatory focus and need to respond quickly to the environmental or political crisis of the moment, even in the face of limited information, many research scientists who are more interested in long-term, quality research are not attracted to the EPA workforce, or if they are attracted, they do not stay for long.239
One observation regarding the timing of the introduction of risk assessment versus the other scientific approaches is that risk assessment appears to have been in the right place at the right time. During the heyday of the development of environmental law and regulation, there was tremendous pressure for a scientific methodology to make predictions about risk and to inform regulatory decision making in a way that dispelled the arguments of critics that environmentalists sought to eliminate all risk, regardless of the economic or social costs. Risk assessment stepped in to fill the need. However, in addition to being a time of pressing need, but it was also a time when environmental-particularly human health-risks were at the forefront of the public's mind. During the 1970s and 1980s, with high profile hazardous-waste-contamination incidents such as Love Canal, the public became increasingly concerned with the risk of cancer from environmental contaminants. Consequently, EPA's risk assessment was primarily used as a means to evaluate cancer risk to humans.
Another important characteristic of that time period is also that the public had not yet become as jaded and skeptical of science as it is now. The post-World War II years marked a time when the public not only trusted science, but also put great hope for the future in technological and scientific advances. Americans believed that technology could solve our problems and such beliefs were fortified by scientific success stories, such as putting humans into space and ultimately on the moon. By the 1980s, however, the public became more skeptical of technology.240 Technological developments, such as the modern products of chemistry that had improved the daily lives of average Americans, became serious problems as more and more hazardous-waste-contamination sites were discovered. Americans became weary of news reports on scientific studies that seemed to contradict each other. It seemed as though one day a certain food product was considered unhealthy and the next week that same food was considered to afford great health benefits. Public distrust of science was encouraged by politicians who manipulated science to fit their own agendas and who called into question the credibility of any scientific study that did not support their political agenda by calling it "junk science."241 Thus, the environment for incorporating new or different scientific approaches into environmental law in the late 1980s through the 2000s became increasingly hostile. At the same time that there was a need to develop scientific approaches that could address broader issues than merely assessing the risk posed by specific doses of specific chemical substances on specific species, the door closed on science.242
It seems likely that many factors contribute to whether a scientific idea becomes incorporated into environmental law or policy. Moreover, using only three scientific ideas to identify patterns or reach conclusions regarding why some ideas are integrated into the law while others are not certainly is not sufficient to form any conclusive results. Nevertheless, certain patterns do emerge from the three examples, which could provide insight into how to better integrate science into law in the future.
VI. Lessons for the Future (How We Can)
To the extent that patterns can be discerned from this limited analysis of three scientific developments, the following factors appear to be important in determining whether scientific developments will be integrated into environmental law and policy. It appears that one of the most important factors is ensuring that EPA regains a scientific culture such that mavens, connectors, and salespeople are available to develop new ideas, reach out to the scientific-research community to find new ideas, find ways to incorporate the new ideas into law and policy, and sell the new ideas to agency staff, government leaders, and the general public. In addition, even the best ideas are not likely to catch on unless they are sufficiently "sticky." Good scientific ideas must be packaged and presented in a manner that takes advantage of the principles of "stickiness." Finally, although neither scientists nor policy makers have complete control over the particular circumstances that exist when a particular new scientific idea is developed, it is possible to ensure that circumstances within EPA are such that the agency is at least open to the possibility of using new scientific developments. To accomplish this, integrity and trust of science must be restored.
With regard to the "who," it appears that the most important factor is that the regulatory agency itself identifies a need and seeks out science to help it address that need. It appears that unless the agency is actually in the market for a new scientific idea to fulfill an identified need, it will not be open to new or different ideas despite the fact that new ideas may exist that could greatly enhance the agency's work. No matter how prestigious the researcher or how elite the research institution that develops an idea, it seems that EPA, in its current form, is generally not willing to reach out to pull in new or different scientific ideas. To create a culture at EPA in which scientists are either developing new scientific ideas to meet policy needs or keeping up with and seeking out new scientific ideas being developed at research institutions, it is necessary to ensure that there are sufficient scientific mavens and connectors who can bring together scientists and policy makers and thereby provide a bridge between the worlds of science and policy.
For new or different scientific ideas to be incorporated into environmental law and policy, high-level agency staff must be motivated to look more closely at the work being done at research universities and other research institutions to find and try out new scientific ideas. In an era where government leaders have consciously created a culture of distrust of science and have intentionally ignored or distorted science where necessary to promote their own political agendas, it is no wonder that agency personnel are not motivated to seek out new or different scientific ideas that may not support the political agenda of a given administration. For this to occur, agencies must have clear direction from above that an important goal is to seek out better scientific approaches and to use the best science available to make the best decisions possible.
To ensure that agencies such as EPA keep abreast of and seek out new scientific ideas to improve their decision making, we must restore a scientific culture to the agencies. Agencies that are asked to make decisions critical to human-health and environmental protection based on science must respect science and scientists. Science should not be outsourced such that scientists within agencies are merely contract or project managers without financial or professional incentive to keep up with new developments or to find ways to integrate them into the activities of the agencies. Instead, agencies must have scientists on staff who are rewarded for doing objective science, who have professional pride, and who are tasked with keeping up with developments and finding ways to use the best new or different scientific ideas to improve environmental policy. In Tipping Point parlance, we need to ensure that there are mavens, connectors, and salespeople whose skills can be used to seek out, incorporate, and spread new scientific ideas to support environmental decision making. The best way to provide mavens and connectors is to shift the culture of EPA such that it puts priority on hiring and retaining skilled scientists who are not only permitted but encouraged to conduct scientific research, participate in scientific conferences and other professional activities, and keep up with scientific developments. These mavens are necessary to ensure that the agency keeps abreast of new, useful scientific ideas. Other scientists-who, rather than being pure researchers, are those with connections to a wide circle of other scientists and policy makers and who have the social skills to bring scientists and policy makers together-will be needed to ensure that good scientific ideas find their way to the right policy people. These connectors ideally would be people with the ability to "bridge the gap" between science and policy and who have the skills to communicate with people in both disciplines to bring useful scientific ideas to the right policy people and be able to demonstrate how these new ideas might be used in the policy-and-law arena. These connectors, or "bridgers," would be able to translate legal and scientific concepts so that individuals involved in both disciplines could better understand each other. More importantly, however, the connector would have the expertise to identify areas where new scientific developments could benefit environmental decision making and could develop proposals to experiment with incorporating such ideas into law or policy.243 Finally, to ensure that useful ideas are actually used, salespeople are needed at the highest levels of the agency. Leaders such as former Administrator Ruckelshaus, who have the stature, charisma, and skills to "sell" their staff and the public on a good idea, are necessary.
One option for ensuring that EPA is able to obtain the type of scientific research needed to address problems faced by environmental regulators and policy makers is an institutional change. For example, during Doug Costle's administration at EPA, a proposal was made to create "Centers of Excellence" on human health, ecology, and technology.244 Under the proposed model, EPA would fund research at major universities to be used partially for basic research and partially for research focused on solving specific environmental problems. Almost half of a billion dollars was set aside to fund those centers. When President Reagan took office, he cancelled the program, and it was never revived.245 To Costle's mind this was an enormous lost opportunity to develop balanced research systematically focused on identifying and solving important environmental problems. A research institution based on this model, which responds to the needs of environmental managers while ensuring that science is conducted in a rigorous manner and is insulated as much as possible from political influence, could greatly enhance the incorporation of new scientific ideas into the law. As was the case with risk assessment, if agencies ask for research to address specific problems they are facing, it is much more likely that the resulting research will be in a form useful to the agency and much more likely that the agency will be willing to integrate the research into their rule or policy development. Others have suggested ways to improve and strengthen the role of science at EPA. These proposals have included, among other things, the following: create a high-level advocate for science, empower scientists to make policy recommendations, and organize a "science watch" NGO to represent disinterested scientists in the administrative process.246 Another possibility is to create a nonregulatory scientific research agency, analogous to the U.S. Geological Survey (USGS), which serves as the primary source of internal scientific advice for the Department of Interior. Such an agency could be tasked with conducting research for EPA-related purposes in an environment that is independent of the political pressures asserted on EPA as a regulatory agency.247 USGS has a reputation for conducting quality science in an honest and objective manner.248
Of course, for good scientific ideas to be integrated into environmental law and policy, the public's trust in science must be restored. Two things will need to happen for this to take place. First, to the extent possible, science must be insulated from political influence. We must go back to an approach where scientific data are as objective as possible, and where policy decisions are informed by science, not characterized as science. second, politicians and government officials must be willing to stop the assault on science as being "junk science" merely because it does not support their particular political agendas.
With regard to the "what," it appears that for scientific ideas to catch on with EPA, as well as with the general public, the ideas need to be "sticky." Although some ideas are inherently stickier than others, most ideas can be made at least somewhat sticky. This can be accomplished by packaging and presenting scientific ideas in ways that incorporate the principles of stickiness. For example, scientific ideas such as emergy synthesis and adaptive management, although inherently complex, could be made stickier if they were boiled down to their core ideas and presented to policy makers and the public as simpler, more streamlined ideas with clear guidance on how they could be applied in a real-world setting. These ideas could also be made stickier if very concrete examples and stories are used that connect to people on an emotional level. Unfortunately, most scientists are either not adept at, or are not interested in, boiling down complex ideas to core concepts or presenting them in ways that make a strong human connection and prompt individuals into action. Academics are not necessarily rewarded for making their ideas simple and easily accessible. Even the term "emergy" itself is not sticky. The average person does not know what the term means and is unlikely to be able to glean its meaning from the word itself. The term "emergy" is frequently identified as a typographical error. Nothing in the term itself provides a concrete image that will stick in people's minds or prompt individuals to take action. Thus, one way to make emergy stickier is to change its name to something that is easily understood and conveys a clear concrete message.
The "when and where" factors are perhaps where persons interested in promoting an idea have the least power. To some extent, as seen in the case of risk assessment, the success of a scientific idea simply depends on the idea being in the right place at the right time. In other words, the timing of factors such as a new congressional or judicial mandate, or a new environmental problem or crisis, creates an environment that is ripe for new scientific ideas. Nevertheless, there are ways to change the culture of agencies like EPA such that they are more receptive to new or different scientific ideas. Perhaps the most critical change that is needed to create such a receptive atmosphere is an administration that respects science, recognizes the benefit science can provide in informing sound decision making, and eschews political interference in science. Leadership is needed that recognizes and respects the divide between science and policy. Agency heads are needed who exert leadership in directing staff to utilize new scientific approaches as they foster an agency culture that respects scientists, hires scientists, and allows scientists to do scientific work and take professional pride in their work.
Environmental law and policy decisions must be informed by science. While universities and other research institutions throughout the world continue to develop new scientific ideas and approaches, environmental law has failed to fully take advantage of the benefits these developments can offer. A number of factors appear to influence whether a particular scientific idea finds a home in the law. These factors can be categorized as relating to the who, what, where, and when of the particular idea. Most significantly, it appears that the environmental agencies themselves must be seeking a scientific idea to assist them in addressing a particular congressional or judicial mandate or to answer a scientific question they are grappling with. To some extent, whether a scientific idea catches on depends on whether it is packaged and presented in a manner that is memorable and that provides a clear path of action. Perhaps more importantly, however, for agencies that desire to seek out and integrate new or different scientific ideas or approaches, agencies must have strong leadership encouraging them to do so, a culture of science must exist within the agency, science must be respected by government leaders, and agency scientists must be free to engage in scientific work free from political pressure. If this could be accomplished, the environmental law and policy world could benefit substantially from the ever-growing body of scientific knowledge.
Mary Jane Angelo*
* Associate Professor of Law, University of Florida Fredric G. Levin College of Law. I would like to thank Wendy Wagner, Alyson Flournoy, Elizabeth Rowe, and Christine Klein for helpful suggestions; Christina Storz, Brandon Richardson, and Ryan Feinberg for excellent research assistance; and the Texas Law Review.…