The Interface of Science and Law in Resource Management

The law-driven nature of regulatory science Research relevant to regulatory requirements Research relevant to regulatory requirements Must try to predict impacts despite high levels of scientific uncertainty Must try to predict impacts despite high levels of scientific uncertainty Legal and political pressure for quick answers Legal and political pressure for quick answers Accountable to non-science “watchdogs” (courts and public) Accountable to non-science “watchdogs” (courts and public) Sometimes difficult to distinguish policy component of research questions from scientific component Sometimes difficult to distinguish policy component of research questions from scientific component Traditionally less emphasis on peer review Traditionally less emphasis on peer review (Jasanoff 1995)

Comparison of science and law SCIENCE Seeks verifiable fact Develop professional consensus gradually Generate and test hypotheses Technocratic, insulated Importance of peer review Do not address social value conflicts Seeks to understand world’s complexity LAW Seeks justice, normative goals Need to resolve disputes quickly, conclusively Use rhetoric to promote client’s views Public-oriented, adversarial Importance of localized notoriety, reputation Geared towards addressing social value conflicts Seeks to simplify, categorize

Science: A necessary but not sufficient ingredient for environmental decisionmaking  Most resource management questions are “trans-scientific”  Scientific uncertainty cannot be completely eliminated  Many environmental resource decisions require value and policy judgments to fill the gap

The “good science” reforms Examples:  Data Access Amendment  Data Quality Act  Increase judicial scientific gatekeeper role  Strict definitions of “best available science”

How about trying to eliminate scientific uncertainty?  Impossible in most cases  Does not address underlying value conflicts  More data may make controversies worse by providing more “ammunition” for competing definitions and views of the problem  The more polarized the parties and the higher the stakes, the less likely that more information will conclusively resolve the issue  More science is not likely to solve the dilemma without a clarification of values and goals ( Sarewitz 2004) ( Sarewitz 2004)

How about strict separation of scientists from managers?  Perpetuates notion that problems can be solved by science alone  Creates false impression that resulting management decision is pure and unassailable  If value choices are not well articulated, insulation may simply pass these choices to scientists  Missed opportunities to translate management issues into questions that can be answered by science

Potential roles for research scientists  Reporting scientific results that others use  Reporting and interpreting scientific results  Working closely with managers to integrate scientific results into management decisions  Actively advocating for specific outcomes  Making management decisions (Lach et al. 2003)

Will science reforms reduce litigation?  Courts tend to defer to agency expertise  When agencies lose science cases, it’s usually because of a failure of explanation, not the underlying science  Litigation has multiple goals -- science reforms are not likely to address them all

NRDC v. Daley, 209 F.3d 747 (C.A.D.C. 2000) Issue: Did NMFS’ recommended catch limit, which had an 18% likelihood of achieving the target level, satisfy the conservation goals of the MSA, the FMP, and NMFS’ own regulations? Held: No. A management measure with only an 18% chance of meeting the management goal is manifestly unreasonable. NMFS should choose a catch limit that has at least a 50% chance of attaining the target. “Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the Service reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a ‘fairly high level of confidence.’”

Real problems?  Complex, conflicting, and/or vague statutory mandates  Law’s inflexibility and adherence to precedent  The “rebuttal problem” (Wagner 2004)  The “science charade” (Wagner 1995)  Communication problems between scientists, lawyers and decisionmakers  Good old fashioned political pressure

Alternative Solutions  Regulatory science involves facts and values and it is undesirable to pretend otherwise  Lawmakers should clearly separate science and policy choices, and provide clear guidance  If Congress won’t do that, agencies should attempt to do so. If not, courts will step in  Reduce litigation pressure by focusing on clear explanations  Don’t expect science to end political disputes. Use science as a means of focusing discussion on choices and risks.

More alternatives  Move past “good science” vs. “junk science” debate.  Scientists can help translate management questions into science questions; clarify uncertainty and risk  If concerned about credibility, refrain from advocating a policy outcome