The Art of the Unsolvable: Locating the Vital Center of Science for Environmental Law & Policy

Article excerpt

 I.  INTRODUCTION
II.  SCIENCE BEYOND ENVIRONMENTAL LAW AND POLICY
     A. Environmental Science in the Shadow of the Toxics Debate
     B. Scientific Pragmatism on Wall Street
     C. Bridging the Newtonian-Darwinian Divide in Environmental
        Science
III. SCIENTIFIC BIAS VERSUS SOCIAL VALUE
 IV. CONCLUSIONS

I. INTRODUCTION

Wildlife management is a problem that superficially appears science ought to be able to resolve handily. Yet, successful wildlife management has proven to be far from simple and is exemplary of the complex dynamics that can emerge from simple biological interactions. Wildlife populations, for example, can be modeled using a formula with just one variable, (1) but this analytic simplicity is deceptive. Non-linear feedbacks, such as the responses of predators, can cause populations to crash unpredictably. (2) This dynamic is reflected in the formula, which is stunningly sensitive to minor variations in its single parameter--a difference of just one tenth of one percent can lead to widely divergent predictions for the same management decision. (3)

This example highlights a basic truth that is often overlooked. Science is limited by both the power of its methods and the characteristics of its subject matter. Ideal scientific problems are ones with sufficient complexity and generality to make them interesting, but not so much that they become intractable. Identifying good scientific problems is therefore essential to success as a scientist and to successful science. In this light, "[i]f politics is the art of the possible, [scientific] research is surely the art of the soluble." (4)

Scientists working in fields relevant to environmental law are rarely able to select problems with an optimal balance of broad implications and potential solutions. Escaping from the aridity of the laboratory comes at a steep price the inchoate swamp of the natural world. Issues ranging from the toxicity of industrial chemicals to the protection of endangered species and the projected magnitude of global warming transcend existing scientific knowledge.

This complexity poses an unsettling question: if scientific uncertainty is so pervasive, what exactly do scientific methods contribute to environmental policymaking? Resolving this question has proven to be exceedingly difficult, both because of the technical challenges and the high stakes. Typically, it is answered in the negative folks know bad science when they see it--which more often than not simply involves dissecting the inevitable gaps in an opponent's scientific methods. (5)

The resulting war of attrition has spawned a corrosive brand of skepticism fueled by vague terms, such as "sound" or "junk" science, that are used to label science as either good or bad. (6) More recently, it has led to dubious legislative actions, such as the Data Access Amendment (or "Shelby Amendment") and the Information Quality Act, that purport to be good-science reforms. (7) Both of these laws give the appearance of enhancing peer review and oversight of regulatory science, but their primary utility is as tools for partisan challenges to agency science. They appear, if anything, designed to heighten strife and to create new barriers to the effective use of science in regulatory decision making. (8)

These types of reforms succeed, in part, because of long-standing misconceptions about science. Critics on both sides of the debate, for example, baldly challenge environmental science for being reductive--a position akin to criticizing a painting by Picasso for its failure to represent its subject matter realistically--and ignore the unavoidable epistemological constraints. (9) Arthur Left has framed the dilemma incisively: "the less [a scientist] accepts as relevant, the less he can say that is not misleading; the more he accepts as relevant, the less he can say at all." (10) Environmental science is vulnerable to attack because striking this balance so often rests on tenuous grounds. …