Outsourcing science and engineering

• Author: Craig M. Pease
• Position: Ph.D., a research scientist, teaches at the Vermont Law School Environmental Law Center
• Pages: 18-18

Page 18 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2010

By Craig M. Pease

Outsourcing science

and engineering

In a recent review of the book Gov-

ernment by Contract, Edward Rubin

characterizes Ronald Reagan’s regu-

latory revolution as standing on the

twin pillars of cost-benef‌it analysis

and privatization. At least within the

environmental law academy, there has

been a disproportionate focus on the

former. ree recent events highlight

the thorny and complex issues that

arise when the government relies on

private corporations to conduct the

science and engineering underlying

environmental protection ef‌forts.

Although the Fourth Circuit’s deci-

sion late this spring in Columbia Ven-

ture v. Dewberry & Davis will not sur-

prise lawyers, this case is nevertheless of

considerable interest to scientists and

engineers. e National Flood Insur-

ance Act charges the Federal Emer-

gency Management Agency with map-

ping f‌loodplains. In this case, FEMA

contracted with the environmental

engineering f‌irm Dewberry & Davis

to do critical hydrological modeling

that FEMA needed to produce some

f‌loodplain maps of the Congaree River

in South Carolina. Columbia Venture

owns property near the Congaree that

it wants to develop, and which FEMA

mapped within the f‌loodplain in a deci-

sion that relied heavily on Dewberry &

Davis’s hydrological modeling.

Columbia Venture launched a

two-pronged challenge. First, it sued

FEMA, alleging procedural violations

in promulgating the f‌loodplain maps,

and challenging the scientif‌ic and tech-

nical basis of the maps (now pending

in South Carolina District Court, after

a remand from the Fourth Circuit).

Second, it sued Dewberry & Davis,

alleging professional malpractice and

other South Carolina state law claims.

Not surprisingly, the Fourth Circuit

recognized that Columbia Venture’s

lawsuit against Dewberry & Davis was

ef‌fectively a collateral attack on FEMA’s

f‌loodplain map, and ruled that the

NFIA preempted Columbia Venture’s

lawsuit against Dewberry & Davis.

In essence, Columbia Venture v.

Dewberry & Davis was a SLAPP lawsuit

directed at an engineering company,

albeit a rather unconventional one in

terms of its claims and the defendant.

Dewberry & Davis did eventually pre-

vail. But defending this lawsuit never-

theless placed real and substantial de-

mands on its scarce f‌inancial, time, and

management resources. It is no wonder

that this case prompt-

ed a rare amicus brief

from the American

Society of Civil Engi-

neers, no less on the

side of environmental

protection.

Government out-

sourcing of science and engineering

raises a whole host of issues, quite apart

from the susceptibility of private con-

sulting f‌irms to litigation such as that

faced by Dewberry & Davis. In theory,

a scientist’s or engineer’s analysis should

not depend on who they work for —

the laws of nature are universal, and do

not change depending on whether the

scientist or engineer is employed by the

government, a university, a non-prof‌it,

or a private corporation.

In practice, a scientist’s answer can

depend critically on whether or not

he or she works for a private corpora-

tion with a pecuniary interest in the

outcome of their research. is was il-

lustrated rather dramatically by Joel de

Vendômois and colleagues’ December

2009 paper in the International Jour-

nal of Biological Sciences, wherein they

reanalyzed some data originally gath-

ered and analyzed by Monsanto and

its contractors on the health ef‌fects of

genetically modif‌ied corn. Monsanto’s

original analysis found no dif‌ferences

in liver and kidney function in rats fed

genetically modif‌ied corn as compared

to control rats fed conventional corn.

With the assistance of Greenpeace at-

torneys, various court actions, and Eu-

ropean governments, de Vendômois

obtained Monsanto’s original data.

Where Monsanto scientists had found

no ef‌fects, de Vendômois found sub-

stantial and consistent ef‌fects.

Information is power. ose who

control the technical information un-

derlying environmental protection

inevitably exert considerable inf‌lu-

ence over environmental policy. As a

third example, observe that essentially

all the key engineering and manage-

ment expertise relevant to preventing,

mitigating and halting the Deepwater

Horizon disaster is inextricably tied to

knowledge of how to drill a deep-water

oil well. As such, the

relevant environmen-

tal knowledge resides

primarily in private

corporations, includ-

ing British Petroleum

and others. e U.S.

government simply

lacks the relevant technical expertise.

Moreover, deep-water oil drilling is

not a static technology. Rather, it is an

ongoing, real-time engineering research

project, continually pushing limits.

Given regulatory lags, it is hard to see

how any government could ef‌fectively

regulate such a cutting-edge and ever-

changing technology.

At its core, environmental protec-

tion entails protecting the commons.

ere is more than a bit of irony, and

considerable opportunity for conf‌lict,

when the government obtains the sci-

ence and engineering expertise needed

to protect the public commons from a

private company.

Craig M. Pease, Ph.D., a research scien-

tist, teaches at the Verm ont Law School En-

vironmental L aw Center. He can be reached

at cpease@ve rmontlaw.edu.

S   L

When goernme nt

obtains expertise to

protect the commons

om a private company

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