from Tales from a Troubled Marriage: Science and Law in Environmental Policy
sciencemag.org
Abstract: Early environmental policy depended on science, with mixed results. Newer approaches continue to rely on science to identify problems and solve them, but use other mechanisms to set standards and legal obligations. Given the important role that science continues to play, however, several cautionary tales are in order concerning "scientific management," "good science," the lure of money, and the tension between objectivity and involvement in important issues of our time.
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Science still, however, plays lead roles. One is to sound the alarm, as it has done for decades and done recently regarding ozone thinning, climate change, and the loss of biological diversity. It is up to science as well to provide a rationale (for example, heavy metals are bad for you) for the requirement of BAT; we cannot BAT the world. It also falls to science to identify substances that are so noxious (bioaccumulative toxins, for example) that they need to be phased out completely, BAT be damned (31). Science-based standards play a similar role in federal air and water quality programs: a safety net in situations where, even with the application of BAT or MACT, air and water quality remain unsafe for human health and the environment (32). Scientists play the same, and in this case dispositive, role under the ESA, defining a baseline—jeopardy—above which no further impacts will be allowed (33). Last but not least is the job of restoration, be it the cleanup of contaminated aquifers, the recovery of the endangered Palila, or the reassembly of ecosystems the size of the Chesapeake Bay and the Louisiana coastal zone.
Four Cautionary Tales
With such power and so much riding on the opinions of scientists, however, four notes of caution are in order.
The first is beware the lure of a return to "scientific management." The technology standards that brought environmental programs out of their stalemate toward success were criticized from day one, and remain criticized today, as "arbitrary," "one size fits all," "inflexible," and "treatment for treatment's sake," outmoded in today's world. What we need, goes the song, is "iterative," "impact-based," "localized" management focused on the scientifically determined needs of this river, that airshed, this manufacturing plant, or that community. It sounds as attractive and rational as it did 40 years ago, but we have tried that for decades and failed. The largest loss leaders of the federal air and water quality acts are the science-based TMDL (total maximum daily load) (34) and SIP (state implementation plan) (35) programs, which eat up heroic amounts of money, remain information-starved, feature shameless manipulation of the data, face crippling political pressure, and produce little abatement (11, 36). On the natural resources side of the ledger, the most abused concept in public lands management is "multiple use" and the most obeyed is the no-jeopardy standard of the ESA. One is a Rorschach blot; the other is law.
The second caution is the lure of "good science." Every lawyer knows what "good science" is: the science that supports his or her case. All of the other science is bad. If you are opposed to something, be it the control of dioxin or of global warming, the science is never good enough (37). See political strategist Frank Luntz's recent advice on climate change: "The scientific debate is closing [against us] but not yet closed. There is still a window of opportunity to challenge the science" (1). Is this a quest for "good science" or is it "any old excuse will do" (38)? Granted, there have been some colossal whoppers posing as science over the years; the optimistic "rainfall follows the plough" idea led thousands of homesteaders to misery on the Western plains, and Sir Thomas Huxley announced that the world's fishery was so abundant that it was inexhaustible (39). Even today one hears voices maintaining that DDT was maligned (40). Adding it up, however, most junk science has come from boosters and developers and has erred on the side of unreasonable optimism. When, on the other hand, scientists have said that the ozone layer was thinning, the planet warming, and the fishery disappearing, they were usually ahead of their time, vilified, and on target. With this understanding as background, we see today, in the name of "good science," a proposal for "peer review" of all science-based agency decisions (41). The primary targets are decisions made by the Environmental Protection Agency (EPA) and the Department of the Interior. If the EPA proposes an environmentally protective action, it will likely be stalled for lack of consensus among "independent" peers. More studies will be commissioned, years will pass. Administrations will change. The opponents win. If, on the other hand, the EPA decides that TCE does not pose a significant risk to human health, or the Department of the Interior decides not to protect the Preeble's beach mouse as an endangered species, there is no peer review, because no action is being proposed. What you have, then, is a knife that cuts only one way: against environmental protection. All in the name of "good science." Beware of being so used.
The third caution is the lure of money, which works like the pull of the Moon. One knows where lawyers are coming from; they speak for their clients. For whom does the scientist speak? Apparently truth and wisdom, but who pays for the work? Most academics in the sciences receive their salaries and technical support through grants and outside funding, nearly a third of it from industry. Their promotions and tenure are based on the amounts of money they bring in. In 1998, the New England Journal of Medicine published an article with the unremarkable but statistically documented conclusion that there was a "significant difference" between the opinions of scientists who received corporate funding and those who did not, on the very same issues (42). Hearing this, do we fall over with surprise? To put it crudely, money talks, and among scientists, the money is too often hidden. Even the conclusions can be hidden, if they are unwelcome to the sponsors. On important public issues, the public never knows.
A final caution is the lure of the "safe" life, the apolitical life, free from the application of what scientists know to the issues around them. One must respect anyone's liberty to choose to be a player or not, and the additional need of the profession for the appearance and fact of objectivity. The question is, notwithstanding: Given the pressure of environmental issues today and their dependence on science, can scientists afford to sit it out? As we speak, an increasing number of scientists are being pulled off of studies, sanctioned, and even dismissed for conclusions that contradict the ideology of their bosses (43). This question does not concern who pays for what conclusions. It concerns a duty to act and to defend your own.
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BAT: Best Available Technology
BADT: Best Available Demonstrated Technology
MACT: Maximum Available Control Technology |
