Science, law, and the environment: the making of a modern discipline.

• Author: Brosnan, Deborah M.
• Position: Symposium

1. INTRODUCTION A. The Endangered Species Act: Intertwining Science and Law II. THE CONVERGENCE OF SCIENCE AND LAW I: SCIENCE-DRIVEN LAW AND POLICY-DRIVEN SCIENCE III. CONVERGENCE OF SCIENCE AND LAW II: BLURRING THE LINES AND ROLES OF SCIENCE AND LAW IV. UNCERTAINTY AND SCIENCE A. What is Science and What are Scientific Standards? B. Imposing Standards: The Data Quality Act V. CONCLUSIONS AND RECOMMENDATIONS I. INTRODUCTION

   All sides are calling for greater integration of science, law, and policy. (1) Those who attempt it recognize the path is a challenging one. There are often misconceptions as to the nature of science and policy, and about what does or should happen when the disciplines intersect. This Article examines some of these issues and suggests ways to deal with them.

   The principles and practices of science and law have evolved over centuries, each in relation to their specific roles and interests. Scientists seek knowledge though a formal process known as the scientific method. Science seeks to expand our understanding of the world, and scientific "truth" is subject to revision. Law also conducts an open-ended search for understanding but demands a definite finding of facts at a given point in time. Law is built on the idea that the best way to find the truth is for advocates on each side to argue it vigorously in front of an impartial judge or jury. Courtroom law in particular is characterized by an adversarial approach. Science, by contrast, involves a cooperative sharing of information so that others can test and refine hypotheses and theories. As noted by the National Academy of Sciences, in science and law "even the search for truth does not serve the same aims" and is not always governed by the same constraints and requirements. (2) Science seeks to understand and predict the natural world, while law seeks current truth about science and other facts in order to serve justice between parties and other societal goals. (3) Environmental policy is defined as a "broad category and includes all the ways that society tries to address environmental problems, including laws and regulations." (4) Policy is based on values and biases. We expect it to be fair and reasonable but not necessarily objective. Thus the distinctions seem clear. Scientists objectively carry out science and produce research results, while lawyers and policy makers use that information to help formulate fair and reasonable policies.

   For the most part we believe the closer the integration of these disciplines, in ways that still preserve their distinctiveness, the better the decisions and policies will be for the environment and people. Practitioners in the different disciplines may vary in the specific imbalances that they seek to redress by bringing science and policy together. Scientists, for instance, may feel that science is poorly treated in the courtroom, or that it is abused by agencies, and seek a greater role for science. They may be driven by a desire to have laws and policies that are more reflective of current scientific thinking and even seek to have scientific standards be legal ones. At the same time, lawyers are often frustrated by what they perceive as fuzzy standards and uncertainties that do not contribute to the fact finding necessary for good law. Indeed, lawyers often view the scientific community as one which believes its methods and procedures are above legal scrutiny and questioning.

   Thus it appears that all we have to do is bring the sides together in ways that maintain the boundaries and uphold the respective roles of scientist, lawyer, and policy maker. But in the rough and tumble of environmental decision making this is naive. Despite the many calls for better integration and hundreds of discussions, we are still no closer to the goal. This is largely because we have failed to recognize that when science and law intersect, definitions and roles change. In the way that eggs and milk make batter when mixed, so too science and law create something new when put together. While it is crucial to recognize the discreteness of each, their integration presents opportunities that are largely ignored because we are compelled to focus only on maintaining the differences. This Article supports the call for better integration between science and law, but argues that we need a stronger model than simply "bridging the gap." Our societal and environmental needs would be better met by recognizing that science and law not only overlap, but at times blend. (5) We would benefit from the creation of an integrated discipline of modern trained professionals who are fluent in their understanding of science and law, and who can adequately address the full complexity of issues we face today. There is not only a practical need for professionals in this arena, but the convergence of law and science itself leads to many questions that are worthy of scholarly pursuit. Individual lawyers and scientists are beginning to publish on these topics. (6) To date their work is largely limited to journals in their own professions and rarely seen by colleagues outside. Academic journals and other systems are needed to encourage those individuals who today straddle the worlds of science and law, and who often find themselves with few opportunities for publishing or discourse among like-minded professionals. Universities, law schools, and other institutions should respond to this need that is both scholarly and vocational (many who work in ecological and natural resources science find themselves dealing with policy and legal mandates that are new to them).

   A closer examination of the science-law interface illustrates how they impact each other, and why we may fail to recognize how deeply they are embedded in each other's domain. The juxtaposition of science and law in the Endangered Species Act (ESA) (7) offers a good illustration, and this Article uses several examples from the ESA.

   1. The Endangered Species Act: Intertwining Science and Law

   Enacted in 1973, the federal ESA is a powerful piece of legislation that protects species and their habitats, (8) It has been called the pitbull of environmental legislation. (9) The ESA is administered by two agencies: the Fish and Wildlife Service (FWS or The Service) and the National Marine Fisheries Service (NMFS). (10) Section 4 of the ESA requires these agencies to list species that are "in danger of extinction, or likely to become so within the foreseeable future." (11) The listing decision must be made "solely on the basis of the best scientific and commercial data available." (12) Potential economic or social consequences that may result from granting a species federal protection must be ignored. (13) In theory, a law based explicitly on objective science should be the poster-child for how science and law can remain separate but work side-by-side. But more often than not it seems to illustrate the opposite.

   Not long after the ESA was enacted, lawyers, politicians, and interest groups, who beforehand had little interest in the species concept, suddenly developed strong opinions on what constitutes a species and indeed what constitutes science itself. (14) A couple of decades later, many scientists were shocked to discover the science and scientific standards they considered their private domain were being debated and decided by judges and lawyers in the courtroom. It was only with the emergence of "conservation biology" in the early 1990s (15) that academic scientists began to engage more formally in the policies and decisions that affect the fate of studied organisms and habitats. Despite this, many scientists remain ill-equipped and untrained in the regulations and rules that govern legal decisions and how these in turn impact science. For instance, the majority of academic scientists are unaware of the conventional rules of judicial review which tilt the balance in favor of agency decisions in litigation that challenges the substantive merit of the decision. (16) Because agencies base many natural resources decisions (in addition to listing decisions) on science, this convention plays a major role on what constitutes science and what standards are set and accepted. Conventions like these are rarely if ever discussed in conservation biology classes. Consequently, many scientists enter the policy arena or courtroom believing the normal rules and standards of the science process apply and are shocked to find they do not.

   Integrating science and law in the ESA and broader environmental policies means more than simply doing what we have always done but with different colleagues. The ramifications extend to the ways we think about scientific questions and standards as well as legal ones. This Article discusses four main topics to illustrate why treating science and law as if they are entirely separate rarely works---and why that may be remedied by a new discipline and more formal training. Section II argues that policy-driven science is a reality when science and law converge. Section UI discusses how the definitions of science and law, and the roles of scientists and lawyers, blur when science and law intersect. Unless we are willing to deal with these consequences as realities rather than things we can absolutely avoid, we will spend longer calling for integration and may fail to get there. Finally, this Article discusses how differences in the standards of uncertainty and what constitutes science impact policy decisions and the application of science to law. (17)

2. THE CONVERGENCE OF SCIENCE AND LAW I: SCIENCE-DRIVEN LAW AND POLICY-DRIVEN SCIENCE

   The Endangered Species Act was drafted using population biology that was current in the early 1970s, influenced by the work of scientists like Robert May and others, (18) From a scientific perspective this represents one of the great strengths of the Act (although the science has since moved on). But the most obvious outcome of a law that...