Harnessing the Power of Science in Environmental Law.
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Harnessing the Power of Science in Environmental Law.
ABSTRACT
In the mid-20th century, new scientific understandings of ecology led to the development of environmental law. Although science has historically played a part in environmental law, it has been more limited than one might expect for a field of law that relies so heavily on science to inform informed decision-making.
Unfortunately, a number of reasons have hindered environmental law’s ability to adapt to and incorporate new scientific advances that have the potential to significantly improve environmental decision-making.
This article will begin by covering the manner in which science is used in environmental law, as well as the impediments that frequently prevent new scientific advances from being applied.
While acknowledging that barriers and possibilities occur in a variety of legal forums, including the judicial and legislative branches, this article will concentrate on barriers and opportunities in the administrative rulemaking and policy formulation context.
To demonstrate how legal scholars, legislators, environmental agencies, and practicing lawyers have attempted 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) emergency synthesis, from scientific academia to environmental administrative law. These three scientific advances were chosen because, while they are all very recent, each has had a distinct journey and various degrees of success in being adopted into law.
Risk assessment has been adopted by regulatory agencies and has become an essential component of environmental law. While scientists and legal academics support adaptive management, it has yet to find a place in the law.
Finally, emergy synthesis, while having been around for over thirty years, being widely acknowledged in the scientific community, and having the capacity to alter environmental decision-making, has received little attention from the legal community.
This article will investigate why the law has regarded these various scientific breakthroughs in such significantly diverse ways. The article will conclude by seeking to make conclusions regarding what types of scientific advances are most likely to be incorporated into the law and offering measures to increase the possibility that new beneficial developments will be accepted to influence the law.
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