The Role of Science in Environmental Protection: Is the Development of Environmental Law Toward More Protective and Productive Way, or Distorted to Inequality, Through the Involvement of Science?

55 Pages Posted: 13 Aug 2009

See all articles by Wen-Hsiang Kung

Wen-Hsiang Kung

Indiana University Bloomington, Maurer School of Law

Date Written: 2009

Abstract

Science can be used to restore the public confidence in the agency and provide good rational for its decisions. However, Rachel Carson had questioned the government’s manipulation of science to support the toxicological safety of pesticides, which therefore launched the beginning of the environmental movement in U.S.

Science has an important role in enacting, implementing, and enforcing environmental law. Congress enacted many statutes based on science-, technology-, and health/risk-standards. Regulatory discourse speaks more in terms of science, probabilities, and risk assessment. However, these issues are interdisciplinary in character and raise a variety of legal, social, economic, and ethical questions.

During the past several decades many areas of governmental policy associated with hazards to health, safety, and the environment have become increasingly contentious. Even today, the continuing debate on regulatory reform has not yet reached consensus on how governmental institutions and procedures should be structured to make decisions better and more broadly acceptable.

For example, risk assessment now is critical for determining the threshold triggering the regulation to protect the public from environmental harms. However, in the “sound science” campaign, people still claim that human lives are not abut probabilities or statistical calculation. Further, it might be anti-democratic to substitute science for democratic decision making.

Moreover, for its policy, the agency has incentives to use science as an effective shield against outside attacks. Hence, scholars are questioning the politicization of science. In the face of climate change, the policy the Bush administration had might be the most notorious example. Prof. Wendy Wagner also documented how administrators, in environmental regulation, can over-rely on science to implement statutory programs through which Congress demands public protection against the risk of serious harm even when the extent of the risk is highly uncertain. Further, she argued that the agency is engaging in a charade to camouflage the agency’s own failure to make the necessary “trans-scientific” policy judgments that the situation demands.

Science helped us establish current legal system of environmental protection. But it also causes environmental protection stayed away from the public and controlled by some few elites and agencies, even including industry interest groups. What should we do to right the wrongs of the pasts and better our perspective in the future for environmental protection?

Hence, in this paper, I would like to discuss the role science plays in environmental protection and its relationship with others such as the agency, Congress, and courts. And, I will answer the question: “Is the development of environmental law toward more protective and productive way, or distorted to inequality, through the involvement of science?”, and propose suggestions for its future development.

Keywords: Environmental Protection, Environmental Justice, Environmental Law, Science Integrity

Suggested Citation

Kung, Wen-Hsiang, The Role of Science in Environmental Protection: Is the Development of Environmental Law Toward More Protective and Productive Way, or Distorted to Inequality, Through the Involvement of Science? (2009). APSA 2009 Toronto Meeting Paper, Available at SSRN: https://ssrn.com/abstract=1450811

Wen-Hsiang Kung (Contact Author)

Indiana University Bloomington, Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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