Document Type

Article

Publication Title

Environmental Law

Publication Date

Spring 2007

ISSN

1075-8453

Page Number

1063

Keywords

environmental law, agency use of science, decision-making process

Disciplines

Environmental Law | Law

Abstract

The decision-making framework established by most environmental laws incorporates an outdated Einsteinian model of how science and policy should be positioned within administrative agencies. Laws such as the Endangered Species Act employ a linear model of science and policy in which science is portrayed as operating in a domain separate from policy, the two being separated by a "Wall of Virtue "preventing agency science and scientists from becoming tainted by engagement in the relevant policy context Far from protecting science from politics, however, this approach facilitates agency use of science as a cover for decisions based on social and economic policy agendas, and has equally exposed policy choices to the influence of scientists presenting themselves as practicing "pure science" but who in fact are pursuing issue advocacy The politicization of science and the scientization of policy decision making have become endemic and mutually reinforcing in environmental law.

Using the Endangered Species Act as an example, this Article contends that environmental law and environmental 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 Wall of Virtue should not separate science and policy-it should surround the two. The real question, therefore, is how best to design, build, and maintain it as a set of principles that foster the role of scientists as stakeholders in policy and protect the law-science process of environmental agencies as a transparent, credible, and honest undertaking.

The Article addresses that question in four stages. Part II briefly lays out the kind of law-science process transgressions that give rise to concern about the integrity of agency decision making. Part III introduces the ESA as a case study, showing how its administration involves a complex amalgam of law-science questions. Part IV outlines some general principles for agency decision-making processes designed to match the realities of the law-science process context. Using a recent example of a breakdown in ESA decision making, Part V grounds those general principles with several maxims for the exercise of agency policy discretion by agency officials responsible for the law- science interface.

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