Much has been written lately in legal scholarship about the role of science in policy and the role of policy in science - and perhaps in no field of law has more been said about them than environmental law. Yet asking the question, "What is the proper role of science in environmental policy?" is utterly misguided, in that it suggests that science operates on the other side of a Wall of Virtue from policy. In The Honest Broker, Roger Pielke, Jr. refers to this as the "linear model" of science in society, "whereby knowledge is created in the lab, packaged by scientific experts, and then handed off to politicians to do what they will." The end result of this vision of science, however, is that "science has come to be viewed as simply a resource for enhancing the ability of groups in society to bargain, negotiate, and compromise in pursuit of their special interests." But in many ways science has asked for this by demanding, as Einstein once put it, to be "left in peace." In contrast to this vision, Pielke outlines a "stakeholder model" in which scientists-as-experts work to understand the interests of different groups and the users of knowledge themselves have some role in its production. Environmental law, in particular, is well-suited to Pielke's stakeholder model. As a body of law it is defined by an intersection between policy and science that entangles the two so much so that it is impossible to unravel a "proper role" for either without considering the "proper role" of the other. Rather, using the Endangered Species Act (ESA) as an example, I contend that law and science co-evolve in a law-science process that is continually in flux and often under stress, with the relevant question being how to manage them in unison so the process leads to sensible decisions. The real question, therefore, is how best to design, build, and maintain it as a set of principles that foster and protect the law-science process of environmental agencies. This paper addresses that question in four stages. Part I briefly lays out the kind of law-science process trangressions that give rise to concern about the integrity of agency decision making. Part II introduces the ESA as a case study. Part III outlines some general principles for agency decision making processes designed to match the realities of the law-science process context. Part IV grounds those general principles with several maxims for the exercise of agency policy discretion by agency officials responsible for the law-science interface. The consequence of my approach is that, while Einstein's honest servants of the truth are not left in peace, they can remain committed to serving the truth as stakeholders in the agency's law-science process.
Reconstructing the Wall of Virtue: Maxims for the Co-Evolution of Environmental Law and Environmental Science, 37 Environmental Law. 1063
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/498