HARNESSING THE POWER OF SCIENCE IN ENVIRONMENTAL LAW: WHY WE SHOULD, WHY WE DON’T, AND HOW WE CAN

Environmental Law was born out of the new scientific understandings of ecology in the mid-20th century. Although science has historically played a role in environmental law, its role has been more limited than may seem appropriate for an area of law that it so dependant on science to inform sound decision-making. Unfortunately, a number of factors have limited the ability of environmental law to adapt to and incorporate new scientific developments that could greatly improve environmental decision-making.

This article will begin by reviewing the ways in which science is employed in environmental law and 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 fora, including in the judicial setting and the legislative setting, this article will focus on barriers and opportunities in the administrative rulemaking and policy development setting. To illustrate how legal scholars, lawmakers, environmental agencies, and practicing lawyers have attempting to incorporate new scientific developments into environmental law, particularly in the administrative context, this article will trace the journey of three distinct scientific developments: 1) risk assessment; 2) adaptive management; and 3) emergy synthesis, from scientific academia to environmental administrative law. These three scientific developments were chosen because although all three are relatively recent developments, each has had a unique journey and a varying degree of success being incorporated into the law.