Resolving Conflict in Non-Ideal, Complex Systems: Solutions for the Law-Science Breakdown in Environmental and Natural Resource Law

48 NATURAL RESOURCES JOURNAL, 257 (2008)

Posted: 19 Jan 2016

See all articles by Barbara A. Cosens

Barbara A. Cosens

University of Idaho - College of Law

Date Written: January 18, 2016

Abstract

In 2006, the U.S. Supreme Court decided a consolidated case concerning the scope of the U.S. army Corps of Engineers’ jurisdiction to require permits for dredge and fill of wetlands under section 404 of the Clean Water Act, issuing a plurality, two concurrences, and two dissents. Each opinion has a solid legal foundation, yet none truly makes sense if the science of the resource in question is considered. The opinions in Rapanos v. United States illuminate the struggle at the law-science interface. The problem is not due to either a failure in legal reasoning or a failure in scientific methodology if each is viewed in isolation. Instead, the difficulty lies in the complexity that results when the human system is overlain on the environment and in our failure to account for that complexity in the methods that govern natural resources dispute resolution. The primary purpose of this article is to shift the dialogue from its current bifurcated focus on better science or better laws to a focus on the need for a new, integrated approach at the law-science interface. The article concludes by recommending one such approach that would involve the designation of specialized federal district courts with scientists on staff.

Keywords: law and science, Clean Water Act, waters of the United States

Suggested Citation

Cosens, Barbara A., Resolving Conflict in Non-Ideal, Complex Systems: Solutions for the Law-Science Breakdown in Environmental and Natural Resource Law (January 18, 2016). 48 NATURAL RESOURCES JOURNAL, 257 (2008), Available at SSRN: https://ssrn.com/abstract=2717798

Barbara A. Cosens (Contact Author)

University of Idaho - College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States
208 885-6298 (Phone)
208 885-2859 (Fax)

HOME PAGE: http://www.uidaho.edu/law/people/faculty/bcosens

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
163
PlumX Metrics