36 Pages Posted: 19 Apr 2005
In this Article, the author assesses the role of science in a maturing modern environmental law. She describes this maturation process, beginning in the early 1970s with a first wave of "behavior-based" (BB) regulations. These regulations constrained the actions of resource-users, but generally they abandoned the very difficult task of linking the required constraints directly to an impact on environmental quality. BB regulations served a useful purpose in cutting back large pollution sources, but by the 1980s they came under increasing criticism for their lack of flexibility, including their inattentiveness to costs, to actual impact on quality, and to small and diffuse sources that could be cumulatively more damaging than large or easily controlled ones. In an attempt to remedy these problems, a now-maturing environmental law has turned increasingly but as yet incompletely to quality-based (QB) approaches. The QB regulations, which include market-based efforts, attempt to connect regulatory requirements to actual improvements in environmental quality. The newer QB approaches, however, entail much greater reliance on measurement of the relationship between resource uses and quality changes. This pattern in turn puts new demands on scientific knowledge, especially for ways to measure or model (a) small and scattered sources and their impacts, (b) marginal or cumulative effects of differing amounts of the same kinds of resource uses, and c) synergistic effects among different kinds of resource uses, particularly in connection with system-wide approaches. More generally, policymakers need the scientific community to be tolerant of the ways in which policy decisions are made under conditions of uncertainty. Finally, scientific study can be important to environmental policy simply by enhancing interest in the environmental questions.
Keywords: environmental law,environmental science
JEL Classification: K11, K32
Suggested Citation: Suggested Citation
Rose, Carol M., Environmental Law Grows Up (More or Less), and What Science Can Do to Help. Lewis & Clark Law Review, Vol. 9, 2005. Available at SSRN: https://ssrn.com/abstract=706651