Reconstructing the Wall of Virtue: Maxims for the Co-Evolution of Environmental Law and Environmental Science

Article excerpt

  I. INTRODUCTION
 II. DEFINING THE MANAGEMENT CHALLENGE: GUARDING AGAINST PROCESS
     TRANSGRESSIONS
III. THE ENDANGERED SPECIES ACT AS A CO-EVOLVING LAW-SCIENCE PROCESS
     SYSTEM
 IV. MANAGING THE STABLE DISEQUILIBRIUM OF LAW-SCIENCE PROCESSES
     A. Integration of Science and Law as an Emergent Property
     B. Exercising Professional Judgment at the Edge of Chaos
     C. Regulatory Peer Review as a Disturbance Regime
  V. DID JULIE MACDONALD CROSS THE LINE, OR WAS SHE JUST DOING HER
     JOB?--MAXIMS FOR OPERATING WITHIN THE WALL OF VIRTUE
 VI. CONCLUSION--TOWARD A NEW GENERATION OF PROFESSIONALS

[P]ursuit of scientific truth, detached from the practical interests of everyday life, ought to be treated as sacred by every Government, and it is in the highest interests of all that honest servants of the truth should be left in peace. (1)

I. INTRODUCTION

In the early hours of the morning, tucked under the covers in a cozy home not far from an elite university campus, a scientist dreams sweet dreams of life in Scienceland. There, within a compound encircled by the mighty Wall of Virtue, scientists frolic in a candy shop of labs, databases, and high speed computers, churning out research on whatever interests them. Outside the Wall of Virtue lies Policyland, a vast, verdant landscape where simple farmers grow food for the scientists, who are too busy to do so for themselves. Policyland's farmers are overseen by the policy makers, who, while being just as ignorant of science as the farmers, have learned to trade food to the scientists in return for black boxes containing findings of science the farmers need to navigate their simple lives in Policyland. Having no other source of guidance, the policy makers have instructed the farmers to follow every detail of the scientists' wisdom. While this alone brings a smile to our slumbering scientist, the topping to the sweet dream is that the scientists in Scienceland get all this while never needing to venture into Policyland.

Far from the university campus where our scientist rests, in a suburb not far from a seat of government, the head of a regulatory agency dreams a much different version of Scienceland and Policyland. In this Policyland, policy makers guide a fast, efficient society of businesspeople with wise, benevolent policies they devise in password-protected rooms deep in the basements of very large modern buildings. The policy makers have scientists as their personal assistants, whom they pepper all day long with questions about this and that. The policy makers demand immediate answers in the form of written reports the policy makers staple to their policies so that the bnsinesspeople believe in the wisdom of the policies. The scientists are educated at the University of Sound Science behind the ivy-covered walls of Scienceland, where policy makers instruct them on such matters as the best available science and the quality of data. Best of all, when a policy maker's personal assistant scientist starts giving answers the policy maker does not like, a new graduate of the University is sure to apply for the job. This way--and this is what makes the dream so soothing--there is always a report to staple to a new policy.

Clearly, these two dreams cannot both come true in the real world, at least not at the same time. The essence of their incompatibility is this: scientists wish for policy makers to follow the findings of science, but do not wish to sully themselves with the mess of policy making; whereas policy makers wish for scientists to give them findings of science that facilitate and support policy making, but to stay out of the actual business of policy making. On one hand, there appears to be harmony between these two ideals: scientists and policy makers agree that science and policy are separate domains--that the Wall of Virtue divides Scienceland and Policyland. But here and there along the wall peep holes appear, and like workers watching the big machines at a construction site, the scientists and policy makers cannot help peering into each others' domains. …