HARNESSING THE POWER OF SCIENCE IN ENVIRONMENTAL LAW

CHAPTER ONE

INTRODUCTION

1.1 Background of the Study

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.' 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 Acte (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 modem 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.