AuthorAdler, Robert W.
  1. INTRODUCTION 704 II. THE EVOLVING PRACTICE OF TRANSLATIONAL ECOLOGY 707 A. Principles of Translational Ecology 709 B. Relationship to Earlier Concepts of the Law-Science 715 Interface 1. Conservation Biology 715 2. Adaptive Management 717 3. Resilience Theory 719 4. Ecosystem and Watershed Management 721 5. What Does Translational Ecology Add? 723 III. OPPORTUNITIES FOR TRANSLATIONAL ECOLOGY IN 725 ENVIRONMENTAL LAW A. The Clean Water Act 726 1. Defining the CWA's Objective and Scope 726 a. What is "Chemical, Physical, and Biological 726 Integrity?" b. What are the "Nation's Waters"? 728 2. Implementing CWA Statutory Programs 733 a. Nonpoint Source Pollution Control 734 b. Total Maximum Daily Loads 735 c. Implementing Water Body Restoration 738 and Protection Programs B. The National Environmental Policy Act 740 1. The Timing of Environmental Impact Analysis 744 2. Uncertainty Analysis and "Incomplete or 747 Unavailable Information" 3. EIS Scope and Cumulative Impacts Analysis 748 C. The Endangered Species Act 750 1. Listing Species and Designating Critical Habitat 752 2. Recovery Plans and Monitoring 754 3. Interagency Consultation 755 IV. BROADER IMPLICATIONS OF TRANSLATIONAL ECOLOGY FOR 756 ENVIRONMENTAL LAW A. Collaborative Science in Public Environmental Law 757 B. Translational Ecology and the Administrative Process 761 V. CONCLUSION 763 I. INTRODUCTION

    In 2010, Dr. William H. Schlesinger published an editorial in Science advocating for a new approach to the science of applied ecology. (1) Borrowing from the concept of translational medicine (2) and other efforts to promote "usable science," (3) Schlesinger argued that ecologists need to transcend pure science and to become more actively involved in communicating the implications and application of their research for environmental policy. (4) That effort, he argued, required a "constant two-way communication between stakeholders and scientists," and efforts to synthesize existing scientific knowledge to articulate its relevance to policy. (5) Schlesinger's seminal plea led to additional work by interdisciplinary teams of scientists to explicate, develop, and promote the concept of translational ecology. (6)

    Schlesinger's core idea is that ecologists should not remain aloof from the public policy implications of their work, and should conduct policy-relevant research rather than work that is interesting or important solely from a scientific perspective. (7) This assertion parallels a broader discussion about the responsibility of scientists to engage in important public policy conversations, (8) if not to play an active advocacy role where they believe that existing law and policy run afoul of important scientific information. (9) Some scientists, however, believe that advocacy can compromise the appropriate role of scientists and the objectivity that is fundamental to scientific inquiry. (10)

    Translational ecologists seek to increase the relevance of their research to environmental policy, and environmental policy is necessarily guided or directed by environmental law. (11) The existing literature, however, addresses the relationship between translational ecology and environmental law only in passing (12) Environmental lawyers are not yet a significant part of the translational ecology discussion, and they have not yet participated in the interdisciplinary teams exploring this new approach. This Article seeks to begin the process of bridging that gap.

    Part II describes the evolving practice of translational ecology in more detail. In addition to explaining the goals and methods of translational ecology, it identifies key principles of that process that may be relevant to environmental law. It also distinguishes translational ecology from other concepts of applied ecology that were identified in the past as relevant to environmental and natural resources law. (13) Part II asks: What new ideas are added by translational ecology, the legal implications of which have not been explored through the lenses of these other practices?

    Part III of this Article explores ways in which translational ecology might be helpful in improving implementation of some of the major U.S. federal environmental statutes, but it also probes its potential limitations in that regard. This analysis begins with the Clean Water Act, (14) both because of the ecological focus of that statute, and because my exploration of those possibilities for the annual meeting of the Society for Freshwater Science (15) began and inspired the rest of this analysis. Other statutes that will be explored as examples include the National Environmental Policy Act (16) and the Endangered Species Act, (17) but translational ecology could also be applicable to many other federal environmental and natural resource management statutes. (18)

    Using these examples as a foundation, Part IV explores the broader implications of translational ecology for the relationship between environmental law and environmental science. As I have suggested elsewhere, that relationship is neither static nor unidirectional. (19) It reflects a dynamic process rather than one in which science simply serves informational needs in the legal process or in which law effectuates information and knowledge produced by science. (20) Part IV suggests that the collaboration and trust building advocated by proponents of translational ecology could help to shift the focus of environmental law and policymaking to consideration and balancing of legitimate competing values rather than adversarial disputes about the science needed to inform the policy discourse.

    Part V concludes that translational ecology shares some of the attributes of earlier efforts to apply ecological science to environmental law and policy in a dynamic, interdisciplinary, and participatory way. It shares their limitations in addressing some of environmental law's most intractable issues but adds some important new ideas and mechanisms to those earlier practices. Those innovations could facilitate more productive partnerships between applied environmental scientists, environmental lawyers, environmental policymakers, and affected stakeholders.


    Lawyers and scientists often see the world very differently, leading to what some commentators have referred to as a "culture clash" between the two disciplines. (21) Scientists and lawyers use language in different ways, approach problems differently, and seek different goals. (22) Scientific language tends to be descriptive and explanatory; (23) legal language tends to be normative and prescriptive. (24) Scientists form plausible hypotheses and collect data to determine how well the data fit the hypothesis or the hypothesis explains the data, (25) in an iterative process. (26) Lawyers use data to prove or disprove a particular fact or circumstance, with judges applying different burdens of proof depending on the nature of the process. (27) Scientists accept doubt and uncertainty (28) and remain open and flexible to accommodate evolving hypotheses and new or more robust or reliable data; lawyers and their clients seek some degree of certainty and stability to support new or existing institutions, business relationships, etc. (29)

    These differences can affect the relationship between lawyers and scientists in environmental law (30) and in other areas of law. (31) Lawyers often look to scientists to help them achieve a particular legal outcome, such as adoption of a regulation, issuance of a permit, or successful prosecution or defense of a lawsuit. (32) Scientists expect the legal process to reflect and respond to changes in scientific knowledge and understanding, particularly in rapidly evolving fields of science such as ecology and other environmental sciences. (33)

    As one potential way to explain the relationship between law and science, in previous work I differentiated between "scientific knowledge" and "regulatory knowledge," noting that they serve different but overlapping functions. (34) Scientific knowledge improves our understanding of the world around us, and may have utilitarian or non-utilitarian value. (35) Regulatory knowledge is knowledge or understanding with legal or regulatory significance. (36) Regulatory knowledge includes scientific knowledge relevant to regulatory decisions. (37) It also transcends pure scientific knowledge, however, to include other forms of knowledge relevant to regulatory decisions, such as law, policy, economics, and social values. (38)

    This relationship between scientific knowledge and regulatory knowledge also suggests that each kind of knowledge feeds off the other in an iterative way. Law responds to advances in scientific knowledge by determining the degree to which that new knowledge is relevant to regulatory decisions and uses that knowledge to advance legal objectives. (39) Science responds to new or evolving legal theories and requirements, such as a new or amended statute or regulation, by developing the scientific or technical basis or support for regulatory approaches or decisions. (40)

    Translational ecology is one of several methods of applied science suggested to address these issues in the context of environmental policy. (41) Predecessor practices have included conservation biology, adaptive management, ecosystem management, and watershed management. (42) The discussion below first explains the basic principles of translational ecology as they have evolved thus far. It then compares and contrasts those principles with those developed through existing modes of interdisciplinary collaboration.

    1. Principles of Translational Ecology

      Schlesinger's seminal editorial in Science proposed several basic principles to encourage ecologists to make their research more relevant to pressing environmental issues such as climate change, oil spills, and invasive species. (43) His most basic plea was for ecologists to communicate...

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