Reconstructing the wall of virtue: maxims for the co-evolution of environmental law and environmental science.

• Author: Ruhl, J.B.
• Position: Symposium

1. INTRODUCTION II. DEFINING THE MANAGEMENT CHALLENGE: GUARDING AGAINST PROCESS TRANSGRESSIONS III. THE ENDANGERED SPECIES ACT AS A CO-EVOLVING LAW-SCIENCE PROCESS SYSTEM IV. MANAGING THE STABLE DISEQUILIBRIUM OF LAW-SCIENCE PROCESSES A. Integration of Science and Law as an Emergent Property B. Exercising Professional Judgment at the Edge of Chaos C. Regulatory Peer Review as a Disturbance Regime V. DID JULIE MACDONALD CROSS THE LINE, OR WAS SHE JUST DOING HER JOB?--MAXIMS FOR OPERATING WITHIN THE WALL OF VIRTUE VI. CONCLUSION--TOWARD A NEW GENERATION OF PROFESSIONALS [P]ursuit of scientific truth, detached from the practical interests of everyday life, ought to be treated as sacred by every Government, and it is in the highest interests of all that honest servants of the truth should be left in peace. (1)

1. INTRODUCTION

   In the early hours of the morning, tucked under the covers in a cozy home not far from an elite university campus, a scientist dreams sweet dreams of life in Scienceland. There, within a compound encircled by the mighty Wall of Virtue, scientists frolic in a candy shop of labs, databases, and high speed computers, churning out research on whatever interests them. Outside the Wall of Virtue lies Policyland, a vast, verdant landscape where simple farmers grow food for the scientists, who are too busy to do so for themselves. Policyland's farmers are overseen by the policy makers, who, while being just as ignorant of science as the farmers, have learned to trade food to the scientists in return for black boxes containing findings of science the farmers need to navigate their simple lives in Policyland. Having no other source of guidance, the policy makers have instructed the farmers to follow every detail of the scientists' wisdom. While this alone brings a smile to our slumbering scientist, the topping to the sweet dream is that the scientists in Scienceland get all this while never needing to venture into Policyland.

   Far from the university campus where our scientist rests, in a suburb not far from a seat of government, the head of a regulatory agency dreams a much different version of Scienceland and Policyland. In this Policyland, policy makers guide a fast, efficient society of businesspeople with wise, benevolent policies they devise in password-protected rooms deep in the basements of very large modern buildings. The policy makers have scientists as their personal assistants, whom they pepper all day long with questions about this and that. The policy makers demand immediate answers in the form of written reports the policy makers staple to their policies so that the bnsinesspeople believe in the wisdom of the policies. The scientists are educated at the University of Sound Science behind the ivy-covered walls of Scienceland, where policy makers instruct them on such matters as the best available science and the quality of data. Best of all, when a policy maker's personal assistant scientist starts giving answers the policy maker does not like, a new graduate of the University is sure to apply for the job. This way--and this is what makes the dream so soothing--there is always a report to staple to a new policy.

   Clearly, these two dreams cannot both come true in the real world, at least not at the same time. The essence of their incompatibility is this: scientists wish for policy makers to follow the findings of science, but do not wish to sully themselves with the mess of policy making; whereas policy makers wish for scientists to give them findings of science that facilitate and support policy making, but to stay out of the actual business of policy making. On one hand, there appears to be harmony between these two ideals: scientists and policy makers agree that science and policy are separate domains--that the Wall of Virtue divides Scienceland and Policyland. But here and there along the wall peep holes appear, and like workers watching the big machines at a construction site, the scientists and policy makers cannot help peering into each others' domains. Scientists seeing policy makers not following the findings of science become indignant, and policy makers seeing how scientists do their work begin to wonder whether the scientists have an "agenda." Suspicion grows on both sides of the wall, and increasingly scientists and policy makers start putting their noses into each others' business. Scientists speak out about policy. Policy makers speak out about science. Each side ponders how to put a trap door in the Wall of Virtue.

   Much has been written lately in legal scholarship about the two central topics around which this saga has unfolded--the role of science in policy and the role of policy in science and perhaps in no field of law has more been said about them than environmental law. (2) Yet asking the question, "What is the proper role of science in environmental policy?" is utterly misguided, in that it suggests that science operates on the other side of the Wall of Virtue from policy. Nathan E. Hultman, reviewing the discussion of this question found in The Honest Broker, (3) by Roger Pielke, Jr., refers to this as the "linear model" of science in society, "whereby knowledge is created in the lab, packaged by scientific experts, and then handed off to politicians to do what they will." (4) The end result of this vision of science, however, is that "science has come to be viewed as simply a resource for enhancing the ability of groups in society to bargain, negotiate, and compromise in pursuit of their special interests." (5) But in many ways science has asked for this by demanding to be "left in peace." In contrast to Einstein's vision, Pielke outlines a "stakeholder model" in which "scientists-as-experts work to understand the interests of different groups and the users of knowledge themselves have some role in its production." (6)

   Environmental law, in particular, is well-suited to Pielke's stakeholder model. As a body of law it is defined by an intersection between policy and science. The two are so entangled that it is impossible to unravel a "proper role" of one without considering the "proper role" of the other. Using the Endangered Species Act (ESA) (7) as an example, I contend that law and 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. (8) Alas, I am afraid for our slumbering scientist and policy maker that the Wall of Virtue does not separate Scienceland and Policyland--it surrounds the two. The real question, therefore, is how best to design, build, and maintain it as a set of principles that foster and protect the law-science process of environmental agencies.

   This 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 HI introduces the ESA as a case study. Part IV outlines some general principles for agency decision-making processes designed to match the realities of the law-science process context. 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. The consequence of this Article's approach is that, while Einstein's honest servants of the truth are not left in peace, they can remain committed to serving the truth as stakeholders in the agency's law-science process.

2. DEFINING THE MANAGEMENT CHALLENGE: GUARDING AGAINST PROCESS TRANSGRESSIONS

   Most people are neither lawyers nor scientists, and cannot reasonably be expected to fully appreciate the inner workings and outer merits of agency decisions about the environment. But people generally do expect certain qualities to be maintained in science and in law, and seem to have a good sense of when they have been violated. (9) People generally expect the law to be fair when it must exercise discretion subjectively, and they expect science to be objective and rigorous. (10) And people expect both law and science to be administered through transparent procedures that ensure the public can "watch" how law and science reach decisions, even if most people do not have the expertise to evaluate the merits of those decisions in strictly legal or scientific terms. (11) Process matters.

   The problem that is at the core of the law-and-science debate in environmental policy--that is, what leads to concern when agency policy decisions about the environment inevitably depend at least in part on science---is the opportunity that exists for participants in one of the two disciplines, namely the lawyers or the scientists, to fulfill the expectations people have of their discipline while using that to justify bending the rules of the other discipline. People fear that lawyers will use the fairness virtue of law to dispense with the objectivity and transparency of science, or that scientists will use the objectivity virtue of science to dispense with the fairness and transparency of the law. (12) Nobody really wants to live in either version of the Scienceland/Policyland dream worlds.

   One premise of environmental law (and of administrative law in general) is that we can reduce the chances of one discipline hijacking the other through a "checks and balances" approach: (13) environmental laws instruct the policy people to use science in their decisions, then crowd the science people and the policy people into the same tent, called an agency, where each side will keep the other honest. What this strategy falls to account for, of course, is the worst of all possible worlds, which is when the lawyers and the scientists get together and decide to dispense with the virtues of both disciplines to advance their mutually chosen agenda.

   Hence three kinds of law-science process violations can surface in the merged law-science process...