Science, Law, and the Environment: The Making of a Modern Discipline
Brosnan, Deborah M., Environmental Law
I. INTRODUCTION A. The Endangered Species Act: Intertwining Science and Law II. THE CONVERGENCE OF SCIENCE AND LAW I: SCIENCE-DRIVEN LAW AND POLICY-DRIVEN SCIENCE III. CONVERGENCE OF SCIENCE AND LAW II: BLURRING THE LINES AND ROLES OF SCIENCE AND LAW IV. UNCERTAINTY AND SCIENCE A. What is Science and What are Scientific Standards? B. Imposing Standards: The Data Quality Act V. CONCLUSIONS AND RECOMMENDATIONS
All sides are calling for greater integration of science, law, and policy. (1) Those who attempt it recognize the path is a challenging one. There are often misconceptions as to the nature of science and policy, and about what does or should happen when the disciplines intersect. This Article examines some of these issues and suggests ways to deal with them.
The principles and practices of science and law have evolved over centuries, each in relation to their specific roles and interests. Scientists seek knowledge though a formal process known as the scientific method. Science seeks to expand our understanding of the world, and scientific "truth" is subject to revision. Law also conducts an open-ended search for understanding but demands a definite finding of facts at a given point in time. Law is built on the idea that the best way to find the truth is for advocates on each side to argue it vigorously in front of an impartial judge or jury. Courtroom law in particular is characterized by an adversarial approach. Science, by contrast, involves a cooperative sharing of information so that others can test and refine hypotheses and theories. As noted by the National Academy of Sciences, in science and law "even the search for truth does not serve the same aims" and is not always governed by the same constraints and requirements. (2) Science seeks to understand and predict the natural world, while law seeks current truth about science and other facts in order to serve justice between parties and other societal goals. (3) Environmental policy is defined as a "broad category and includes all the ways that society tries to address environmental problems, including laws and regulations." (4) Policy is based on values and biases. We expect it to be fair and reasonable but not necessarily objective. Thus the distinctions seem clear. Scientists objectively carry out science and produce research results, while lawyers and policy makers use that information to help formulate fair and reasonable policies.
For the most part we believe the closer the integration of these disciplines, in ways that still preserve their distinctiveness, the better the decisions and policies will be for the environment and people. Practitioners in the different disciplines may vary in the specific imbalances that they seek to redress by bringing science and policy together. Scientists, for instance, may feel that science is poorly treated in the courtroom, or that it is abused by agencies, and seek a greater role for science. They may be driven by a desire to have laws and policies that are more reflective of current scientific thinking and even seek to have scientific standards be legal ones. At the same time, lawyers are often frustrated by what they perceive as fuzzy standards and uncertainties that do not contribute to the fact finding necessary for good law. Indeed, lawyers often view the scientific community as one which believes its methods and procedures are above legal scrutiny and questioning.
Thus it appears that all we have to do is bring the sides together in ways that maintain the boundaries and uphold the respective roles of scientist, lawyer, and policy maker. But in the rough and tumble of environmental decision making this is naive. Despite the many calls for better integration and hundreds of discussions, we are still no closer to the goal. This is largely because we have failed to recognize that when science and law intersect, definitions and roles change. …