Daubert and the Proper Role for the Courts in Health, Safety, and Environmental Regulation

Abstract

Assigning a Daubert-like gatekeeper role to courts engaged in judicial review of risk assessments prepared by federal agencies is a profoundly bad idea. I describe the role of courts in reviewing regulatory agency decisionmaking and explore the potential impact of incorporating Daubert principles into administrative law. A Daubert form of judicial review will prevent agencies from employing a weight of the evidence approach, forcing them to adopt a corpuscular approach that rewards efforts by regulatees to find and exaggerate flaws in individual scientific studies. Consequently, applying Daubert to federal agency decisionmaking will have a predictable impact on regulatory policy that runs directly counter to the precautionary policies that animate most health, safety and environmental statutes.

Keywords: Environmental law, Judicial Review, Weight of the evidence, Daubert

JEL Classification: G18, K23, K32