Harnessing the power of science in environmental law: Why we should, why we don't, and how we can

Texas Law Review

Volumn 86, Issue 7, 2008, Pages 1527-1573

  Angelo, Mary Jane ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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[No Author keywords available]

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EID: 50049090581     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (248)

1. See Michael E. Soûlé et al., Strongly Interacting Species: Conservation Policy, Management, and Ethics, BIOSCIENCE, Feb. 2005, at 1, 1 (describing how environmental laws and regulations quickly become obsolete because they fail to keep up with new scientific developments).
2. 42 U.S.C. §§ 4321-4370e (2000).
3. MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A BIG DIFFERENCE (2000).
4. For analysis of some barriers separating law and science, see generally DAVID L. FAIGMAN, LEGAL ALCHEMY: THE USE AND MISUSE OF SCIENCE IN THE LAW (1999) (focusing on the law's impatience with the limitations of scientific methods); STEVEN GOLDBERG, CULTURE CLASH: LAW AND SCIENCE IN AMERICA (1994) (discussing the paradoxical contrast between the United States' vigorous support for scientific research and its slow and sporadic implementation of the results of that research); STEVEN GOLDBERG & LAWRENCE O. GOSTIN, LAW AND SCIENCE (2006) (evaluating the relationship between law and science, particularly with regard to genetics, nuclear energy, medicine, and computers); Joseph F.C. DiMento & Helen Ingram, Science and Environmental Decision Making: The Potential Role of Environmental Impact Assessment in the Pursuit of Appropriate Information, 45 NAT. RESOURCES J. 283 (2005) (reviewing alternative explanations of the sometimes troubled relationship between science and environmental decision making); Richard V. Pouyat, Science and Environmental Policy - Making Them Compatible, BIOSCIENCE, Apr. 1999, at 281, 281 (describing some of the most challenging barriers separating ecological and biological science and public policy); Carol M. Rose, Environmental Law Grows Up (More or Less), and What Science Can Do to Help, 9 LEWIS & CLARK L. REV. 273 (2005) (assessing the role of science in a maturing, modern environmental law).
5. See SHEILA JASANOFF, SCIENCE AT THE BAR: LAW, SCIENCE, AND TECHNOLOGY IN AMERICA 5-11 (1995) (contrasting the cultures of legal and scientific inquiry by noting that "fact-finding in the law is always contingent on a particular vision of...delivering social justice," while "science is ordinarily seen as set apart from all other social activities by virtue of its institutionalized procedures for overcoming particularity and context dependence and its capacity for generating claims of universal validity").
6. GOLDBERG, supra note 4, at 7; see Daniel J. McGarvey, Merging Precautions with Sound Science Under the Endangered Species Act, BIOSCIENCE, Jan. 2007, at 1, 1 (describing how hypothesis tests aim to minimize type I errors (false positives), whereas the goal of environmental decision making typically is to prevent type II errors (false negatives)).
7. GOLDBERG, supra note 4, at 7.
8. Id. at 8.
9. Id.
10. Id. at 13.
11. See id. at 14 ("Human history does not lend itself to the running of controlled experiments.").
12. Id. at 13-20.
13. Id.
14. See Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate, 34 ENVTL. L. 397, 438-39 (2004) (stating that uncertainty in science is unavoidable); Daniel A. Farber, Probabilities Behaving Badly: Complexity Theory and Environmental Uncertainty, 27 ENVIRONS ENVTL. L. & POL'Y J. 145, 148-52 (2003) (describing some of the uncertainties that exist in current environmental science); John M. Volkman, Managing Uncertainty in Species Conservation Policy, 74 WASH. L. REV. 719, 723-24 (1999) (stating that there is much uncertainty in species-conservation policy); Wendy E. Wagner, Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment, 53 DUKE L.J. 1619, 1625-33 (2004) (describing the lack of scientific research and data on environmental problems); Vern R. Walker, Keeping the WTO from Becoming the "World Trans-science Organization": Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, 31 CORNELL INT'L L.J. 251, 258-62 (1998) (describing the kinds of scientific uncertainty prevalent in risk assessments).
15. Wagner, supra note 14, at 1625-30.
16. Id. at 1631-33.
17. See Doremus, supra note 14, at 438 ("Choices of how to interpret equivocal data and what to do in the face of uncertainty are not 'scientific' as the public understands that term, although they are familiar to scientists and indeed are an unavoidable part of the scientific enterprise.").
18. See, e.g., Wagner, supra note 14, at 1631-32. ("[Private] actors vastly prefer ignorance over research because most documentation of externalities will ultimately affect them negatively. Thus, rather than contribute to enlightenment, actors seem more willing to contribute to, and even invest in, the perpetuation of ignorance.").
19. See, e.g., DAVID S. CAUDILL & LEWIS H. LARUE, NO MAGIC WAND: THE IDEALIZATION OF SCIENCE IN LAW, at xiii (2006) ("Our focus in this book is on the current use of science in the courtroom."); JASANOFF, supra note 5, at xiii ("My purpose is to explore how... science and the courts[] interact with each other....").
20. JASANOFF, supra note 5, at xiii.
21. 509 U.S. 579 (1993). A recent Westlaw search of law review articles containing the word "Daubert" in their titles found 547 such articles.
22. See Daubert, 509 U.S. at 593 n.10 (noting that, when determining the admissibility of scientific evidence, factual issues "should be established by a preponderance of proof"); JASANOFF, supra note 5, at 10 ("In order to prevail the plaintiff must prove his claim by a 'preponderance of the evidence' - in other words more than 50 percent of the evidence must be in the plaintiffs favor.").
23. See, e.g., JASANOFF, supra note 5, at 120 ("It is difficult to establish by a preponderance of the evidence that such commonly occurring complaints as leukemia, birth defects, loss of fertility, and neurological or psychological disorders resulted from contact with one or another toxic substance.").
24. Id. at 5.
25. Id. at 7.
26. Wendy E. Wagner, Importing Daubert to Administrative Agencies Through the Information Quality Act, 12 J.L. & POL'Y 589, 591-92 (2004).
27. See 5 U.S.C. § 706 (2000) (setting standards for judicial review of agency action); see also Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43-44 (1983) (requiring that agencies take a "hard look" at the data, arguments, and alternatives before making a final decision); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20 (1971) (requiring an agency to base its decision on the whole record, not on "merely post hoc rationalizations").
28. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEXAS L. REV. 525, 527-29 (1997); Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1410-12 (1992); see also Thomas O. McGarity & Wendy E. Wagner, Legal Aspects of the Regulatory Use of Environmental Modeling, 33 Envtl. L. Rep. (Envtl. Law Inst.) 10,751, 10,770 (2003) (analyzing thirty years of judicial challenges to EPA rulemakings to identify the types of constraints the court imposed under the Administrative Procedure Act).
29. Lynn E. Blais & Wendy E. Wagner, Emerging Science, Adaptive Regulation, and the Problem of Rulemaking Ruts, 86 TEXAS L. REV. 1701, 1706 (2008); see also Wagner, supra note 26, at 603-04 (stating that placing stricter scientific burdens on agencies will cause them to avoid promulgating new regulations). Scholars have also identified the increased oversight role of the Bush Administration's Office of Management and Budget (OMB) and its "sound science" crusade as a major factor in regulatory ossification. See, e.g., Roni A. Neff & Lynn R. Goldman, Regulatory Parallels to Daubert: Stakeholder Influence, "Sound Science, " and the Delayed Adoption of Health-Protective Standards, 95 AM. J. PUB. HEALTH (SUPPLEMENT I) S81, S87 (2005) (describing how the charade of "sound science" hampers the government's ability to safeguard the public's health and well-being).
30. See HOWARD T. ODUM, ENVIRONMENTAL ACCOUNTING: EMERGY AND ENVIRONMENTAL DECISION MAKING 15-21 (1996) (introducing the concept of emergy and citing to Lotka's maximum power principle); Alfred J. Lotka, Contribution to the Energetics of Evolution, 8 PROC. NAT'L ACAD. SCI. 147, 147-49 (1922) (presenting the maximum power principle).
31. See generally EUGENE P. ODUM & HOWARD T. ODUM, FUNDAMENTALS OF ECOLOGY (1953).
32. Mark T. Brown & Sergio Ulgiati, Energy Quality, Emergy, and Transformity: H.T. Odum's Contributions to Quantifying and Understanding Systems, 178 ECOLOGICAL MODELLING 201, 201-02 (2004). Energetics is "a branch of mechanics that deals primarily with energy and its transformations." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 413 (11th ed. 2003).
33. Brown & Ulgiati, supra note 32, at 202-03.
34. Id. at 203.
35. Id. at 205 ("Emergy is the availability of energy (exergy) of one kind that is used up in transformations directly and indirectly to make a product or service.").
36. A partial list of Dr. H.T. Odum's emergy publications includes H.T. ODUM, ENERGY, ENVIRONMENT AND PUBLIC POLICY: A GUIDE TO THE ANALYSIS OF SYSTEMS (1988); HOWARD T. ODUM ET. AL., ENVIRONMENT AND SOCIETY IN FLORIDA (1998); HOWARD T. ODUM, ENVIRONMENTAL ACCOUNTING: EMERGY AND ENVIRONMENTAL DECISION MAKING (1996); HOWARD T. ODUM & ELISABETH C. ODUM, A PROSPEROUS WAY DOWN: PRINCIPLES AND POLICIES (2001); Howard T. Odum, Embodied Energy, Foreign Trade and Welfare of Nations, in INTEGRATION OF ECONOMY AND ECOLOGY - AN OUTLOOK FOR THE EIGHTIES 185-99 (A.M. Jansson ed., 1984); Howard T. Odum, Folio #2: Emergy of Global Processes, in HANDBOOK OF EMERGY EVALUATION: A COMPENDIUM OF DATA FOR EMERGY COMPUTATION ISSUED IN A SERIES OF FOLIOS (2000); Howard T. Odum, Self-Organization, Transformity, and Information, 242 SCIENCE 1132 (1988).
37. The emergy Web site at the University of Florida alone lists more than 300 publications by University of Florida faculty and graduate students related to emergy synthesis. See Emergy Systems.org, Publications, http://www.emergysystems.org/ publications.php (last updated Jan. 26, 2008).
38. Mark T. Brown & Sergio Ulgiati, Emergy Evaluation of the Biosphere and Natural Capital, 28 AMBIO 486, 487 (1999).
39. Id.
40. Jorge L. Hau & Bhavik R. Bakshi, Promise and Problems of Emergy Analysis, 178 ECOLOGICAL MODELLING 215, 216 (2004).
41. During the early years of emergy research, at least one lawmaker considered using emergy in environmental or energy decision making. For example, in his book, ENVIRONMENTAL ACCOUNTING, Odum states: In 1975 our initiatives through Senator M. Hatfield of Oregon caused a federal law to be introduced requiring "net energy analysis" of new projects. Because the words "energy" and "embodied energy" were not clearly defined, the implementation of the law became confused and its purpose of preventing wasteful projects was circumvented. While noting the illegal substitution of economic analysis for energy analysis, the U.S. General Accounting Office (GAO, 1982) reviewed energy analysis methods describing three approaches: process analysis; input-output analysis; and our approach, which they called "ecoenergetics." They wrote: Ecoenergetics has broad appeal in its emphasis on the fullest possible measurement of the embodied energy of labor, environmental systems, and solar energy, but its analytical boundaries are more extensive than seems appropriate for the analysis of alternative energy technologies, as we explain at greater length [elsewhere]. Moreover, a set of consistent quantitative methods has yet to be developed for it. Therefore we chose not to use ecoenergetics. ODUM, supra note 30, at 277-78 (alteration in original) (emphasis omitted); see also U.S. GEN. ACCOUNTING OFFICE, GAO/IPE-82-1, DOE FUNDS NEW ENERGY TECHNOLOGIES WITHOUT ESTIMATING POTENTIAL NEW ENERGY YIELDS, at summary (1982), available at http://archive.gao. gov/f0102/119139.pdf ("GAO recommends that the Congress require DOE to consider the potential net energy yields of proposed technologies and to provide the analytic support needed to implement net energy analysis.").
42. See, e.g., DANIEL A. FARBER, ECO-PRAGMATISM: MAKING SENSIBLE ENVIRONMENTAL DECISIONS IN AN UNCERTAIN WORLD 9 (1999) ("I argue for a pragmatic approach to environmental problems, in which economic analysis is useful, but not controlling.... [T]he dichotomy between economics and value judgments turns out to be a false one."); SIDNEY A. SHAPIRO & ROBERT L. GLICKSMAN, RISK REGULATION AT RISK: RESTORING A PRAGMATIC APPROACH 1-2 (2003) (describing U.S. environmental, health, and safety laws as historically based on preventative risk regulation and noting the many critics who find risk regulation irrational because it often leads to solutions whose economic costs are much greater than their economic benefits).
43. See FARBER, supra note 42, at 7 (noting that President Reagan issued an order in 1981 requiring all government agencies to base their decisions on cost-benefit analysis except when prohibited from doing so by statute); see also id. at 119 (noting that feasibility analysis is employed in certain EPA regulations that direct a particular firm to achieve the specific level of pollution control it considers feasible).
44. See, e.g., NAT'L CTR. FOR ENVTL. ECON., EPA, ENVIRONMENTAL ECONOMIC RESEARCH AT EPA § 3.4 (2008), http://yosemite.epa.gov/ee/epalib/ord1.nsf/ 77e34926d19d5664852565a5005 01ed6/6f63dca022f9544585256625006ccdc8!OpenDocument ("When economic information cannot be used to set the regulatory goal, policy makers at a minimum would like that their regulations achieve the goal at least cost. In a great many cases, [EPA] does have the discretion to select the most cost-effective approach from among regulatory approaches that yield equivalent outcomes.").
45. See J.B. Ruhl, Ecosystem Services and the Common Law of "The Fragile Land System," NAT. RESOURCES & ENV'T, Fall 2005, at 3, 69 (describing an ecosystems approach based on proof of economic harm); James Salzman, A Field of Green? The Past and Future of Ecosystem Services, 21 J. LAND USE & ENVTL. L. 133, 135-36 (2006) (discussing the economic problems associated with public goods and collective action as one barrier to creating markets in ecosystems services); James Salzman, Creating Markets for Ecosystem Services: Notes from the Field, 80 N.Y.U. L. REV. 870, 870 (2005) ("In recent years, an increasing number of initiatives around the world have sought to create markets for [ecosystem] services, some dependent on government intervention and some created by entirely private ventures."); James Salzman, The Promise and Perils of Payment for Ecosystem Services, 1 INT'L J. INNOVATION & SUSTAINABLE DEV. 5, 5 (2005) (identifying different types of ecosystems-service markets and examining the challenges posed by each).
46. See, e.g., FARBER, supra note 42, at 6-8 (describing the argument over how best to protect the environment between proponents of cost-benefit analysis and proponents of environmental values).
47. John M. Heyde, Is Contingent Valuation Worth the Trouble?, 62 U. CHI. L. REV. 331, 332 (1995); see also HERMAN E. DALY & JOSHUA PARLEY, ECOLOGICAL ECONOMICS: PRINCIPLES AND APPLICATIONS 24-26 (2003) (describing the circular flow model - the pre-analytic vision of standard economics-and its shortcomings); FARBER, supra note 42, at 52-53 (noting criticisms of basing environmental policy on market preferences that highlight the "stark division between the interests people have as private consumers and those they have as citizens").
48. See FARBER, supra note 42, at 35 (noting that "[m]uch of the environmental scholarship of the past twenty years has been dominated by the struggle between" political and economic approaches).
49. Because there are no significant markets for most environmental services, cost-benefit analyses, preparation of environmental impact statements, wetlands mitigation banking, Superfund remediations, and oil-spill cleanups often ignore these services. James Salzman, Barton H. Thompson, Jr. & Gretchen C. Daily, Protecting Ecosystem Services: Science, Economics, and Law, 20 STAN. ENVTL. L.J. 309, 311-12 (2001).
50. See FARBER, supra note 42, at 49 (noting that "some economists advocate the use of 'contingent valuation' studies to measure how much people are willing to pay for nonuse values"); Heyde, supra note 47, at 339 ("Contingent valuation is a public opinion surveying technique: surveyors ask members of a sample group how much they would be willing to pay to restore a resource to its undamaged state. The results are then aggregated...to provide a statistical picture of how much society as a whole values the resource in question.").
51. See FARBER, supra note 42, at 49 ("There is a great deal of dispute about whether contingent valuation, even if done carefully, provides a genuine measure of preferences.... [C]ritics doubt that people actually have preferences about specific environmental sites or that their responses reflect considered efforts to assess such preferences."); Heyde, supra note 47, at 333 ("Courts and natural resource trustees should abandon contingent valuation.... [O]bsession with the 'perfect' damages figure tends to commodify our understanding of natural resources, thereby undermining the proper relationship that society should have with these resources.").
52. FARBER, supra note 42, at 99-101.
53. Id. at 100.
54. Brown & Ulgiati, supra note 38, at 493.
55. See, e.g., DALY & FARLEY, supra note 47, at 29 (arguing that consideration of the linear throughput of resources in an economy should be added to the traditional circular flow model).
56. Brown & Ulgiati, supra note 38, at 486.
57. CHARLES O. HOLLIDAY, JR. ET AL., WALKING THE TALK: THE BUSINESS CASE FOR SUSTAINABLE DEVELOPMENT 83-85 (2002) (describing the benefits of "eco-efficiency," a methodology similar to emergy synthesis in that eco-efficiency recognizes the inherent value of natural resources and seeks to minimize the amount of that value used in producing goods and services). For discussions of the benefits of other concepts that comprise emergy synthesis, see Kenneth Arrow et al., Economic Growth, Carrying Capacity, and the Environment, 268 SCIENCE 520, 521 (1995) (arguing that traditional economic policy is not an adequate substitute for environmental policy that takes into account the planet's carrying capacity); Bhavik R. Bakshi, A Thermodynamic Framework for Ecologically Conscious Process Systems Engineering, 24 COMPUTERS & CHEMICAL ENGINEERING 1767, 1767-68 (2002) (arguing that traditional process engineering considers environmental objectives as secondary to economic objectives but that emergy theory properly accounts for both objectives); Paul Ekins et al., A Framework for the Practical Application of the Concepts of Critical Natural Capital and Strong Sustainability, 44 ECOLOGICAL ECON. 165, 166 (2003) (stating that traditional economic models do not properly account for nonpriced, common-property environmental resources).
58. See Bakshi, supra note 57, at 1767 (stating that emergy combines the benefits of both economic and ecological analysis).
59. Hau & Bakshi, supra note 40, at 218.
60. Id.
61. Id.
62. Id. at 223 (reviewing criticisms of emergy and concluding that many of the criticisms apply not just to emergy analysis but to all methods that employ a holistic view). Publications that provide criticism of emergy analysis include: DANIEL T. SPRENG, NET ENERGY ANALYSIS AND THE ENERGY REQUIREMENTS OF ENERGY SYSTEMS 289 (1988); Cutler J. Cleveland et al., Aggregation and the Role of Energy in the Economy, 32 ECOLOGICAL ECON. 301, 313 (2000) (stating that econometric analysis of energy use reveals a strong correlation between energy use and economic output and demonstrates that economic performance is not decoupled from energy use); B.Å. Mansson & J.M. McGlade, Ecology, Thermodynamics and H.T. Odum's Conjectures, 93 OECOLOGIA 582, 588-92 (1993) (criticizing the use of energy as a currency to describe ecology).
63. Mary Jane Angelo & Mark T. Brown, Incorporating Emergy Synthesis into Environmental Law: An Integration of Ecology, Economics, and Law, 37 ENVTL. L. 963, 974 (2007).
64. Id. at 984-85.
65. Id. at 974-75.
66. Id. at 981.
67. Id.
68. Id.
69. U.N. ENV'T PROGRAMME, AN ECOSYSTEM APPROACH TO RESTORING WEST AFRICAN DRYLANDS AND IMPROVING RURAL LIVELIHOODS THROUGH AGROFORESTRY-BASED LAND MANAGEMENT INTERVENTIONS 8-9 (2005), available at http://www.worldagroforestry.org/ wadrylands/resources/ West%20African%20Drylands%20Project.pdf.
70. In one case, researchers evaluated three alternative sources of water supply for Windhoek, Namibia: aquifer water, Okavango River water, and desalination. See Andrés A. Buenfil, Emergy Evaluation of Water Supply Alternatives for Windhoek, Namibia, in INT'L INST. FOR APPLIED SYS. ANALYSIS, POPULATION- DEVELOPMENT-ENVIRONMENT IN NAMIBIA: BACKGROUND READINGS 187 (Ben Fuller & Isolde Frommer eds., 2000), available at http://www.iiasa.ac.at/Research/POP/ pde/docs/IR-00-031.pdf. The study demonstrated that the use of aquifer water was the preferable alternative primarily due to the environmental and economic costs of desalination and the downstream environmental impacts to the Okavango Delta wetlands and wildlife should water from the Okavango River be diverted. Id. In another case study, researchers evaluated three effluent treatment alternatives for wastewater discharge from an existing pulp and paper mill in Florida: constructing a pipeline to pipe wastewater from the mill to the Gulf of Mexico; piping water to the headwaters of an existing wetland for treatment by the existing wetland system; or constructing a new wetland strand between the mill and the Gulf of Mexico, through which wastewater would be discharged. EMERGY EVALUATION OF ENVIRONMENTAL ALTERNATIVES 6-35, http://www.emergy systems.org/downloads/PowerPoints/ Lecture10_EnvEvaluation.ppt. Finally, Dr. Odum conducted an emergy synthesis evaluating two alternatives for cooling-water disposal from a nuclear power plant in Crystal River, Florida: (1) the construction and operation of cooling towers, and (2) discharging the hot waters to the adjacent estuarine ecosystem. Taking into account a number of factors - including the ecological costs of impacts to zooplankton and juvenile fish, and reduction in ecological metabolism - and comparing these to the emergy costs of construction, maintenance, and operation of the cooling tower, the emergy analysis demonstrated that direct discharge of cooling water into the bay was the better alternative. Id. at 36-39.
71. ATL. ECOLOGY DIV., EPA, EMERGY, http://www.epa.gov/aed/html/collaboration/emergy course/presentations/index. html.
72. DANIEL E. CAMPBELL & SHERRY L. BRANDT-WILLIAMS, EPA, ENVIRONMENTAL ACCOUNTING USING EMERGY: EVALUATION OF THE STATE OF WEST VIRGINIA (2005), available at http://epa.gov/nheerl/publications/files/wvevaluationposted.pdf.
73. COMM. ON RISK ASSESSMENT OF HAZARDOUS AIR POLLUTANTS, NAT'L RESEARCH COUNCIL, SCIENCE AND JUDGMENT IN RISK ASSESSMENT 25-26 (1994) [hereinafter SCIENCE AND JUDGMENT IN RISK ASSESSMENT] (defining risk assessment).
74. Keith J. Jones, Endocrine Disruptors and Risk Assessment: Potential for a Big Mistake, 17 VILL. ENVTL. L.J. 357, 370 (2006) ("Environmental risk assessment is usually described in terms of two components - hazard and exposure."). See also MARY O'BRIEN, MAKING BETTER ENVIRONMENTAL DECISIONS 17-25 (2000) (describing hazard and exposure in further detail).
75. COMM. ON THE INSTITUTIONAL MEANS FOR ASSESSMENT OF RISKS TO PUB. HEALTH, COMM'N ON LIFE SCIS., NAT'L RESEARCH COUNCIL, RISK ASSESSMENT IN THE FEDERAL GOVERNMENT: MANAGING THE PROGRESS (the "Red Book") 19-20 (1983) [hereinafter RED BOOK] (dividing risk assessment into four major steps). Alternatively, some approach risk assessment as a three-step process. Nicklas A. Akers, New Tools for Environmental Justice: Articulating a Net Health Effects Challenge to Emissions Trading Markets, 7 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 203, 214 (2001) ("Risk assessment can be conceived of as a three-part process."); see also Elaine M. Faustman & Gilbert S. Omenn, Risk Assessment, in CASARETT & DOULL'S TOXICOLOGY: THE BASIC SCIENCE OF POISONS 107 (Curtis D. Klaassen ed., 7th ed. 2008) (discussing risk assessment generally).
76. RED BOOK, supra note 75, at 19.
77. See id. at 20, 22-23 (discussing epidemiological data, animal-bioassay data, short-term studies, and comparisons of molecular structure in hazard identification).
78. Id. at 19-20.
79. See id. at 23-24 (discussing analysis of chemical exposure in dose-response assessment).
80. Id.
81. Id.
82. Id.
83. See SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, 29-30 (discussing the historical roots of risk assessment).
84. See id. (noting that the origins of risk assessment are found in the practices of toxicologists in the 1940s and that the concept was then adopted by FDA scientists in the 1950s).
85. 21 U.S.C. §§ 301-397 (2000).
86. See, e.g., SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 30 (noting two FDA scientists' work to establish "acceptable daily intakes (ADIs)[] for dietary pesticide residues and food additives").
87. Id. at 29.
88. Id.
89. Id. at 30. For example, threshold limit values (TLVs) were first published by the American Conference of Governmental Industrial Hygienists in the 1950s. Id. In the early 1950s, a procedure known as acceptable daily intakes (ADIs) for dietary pesticide residues and food additives was proposed by two FDA scientists, O.G. Fitzhugh and A. Lehman. Id. This procedure is based on the above stated threshold hypothesis and - originally - on identification of a chemical's no-observed-effect level (NOEL). Id. The response levels used today are no-observed-adverse-effect level (NOAEL) and lowest-observed-adverse-effect level (LOAEL). Id. The FDA scientists established the safety factor of 100 when they cited data "suggesting that 'average' human sensitivities might be up to 10 times those of laboratory animals and that some members of a large and diverse human population might be up to 10 times more sensitive than the 'average' person." Id. A chemical-specific ADI was derived by dividing the experimental NOEL by 100. Id. However, the FDA scientists who established this safety-factor method of risk assessment never claimed that an ADI was risk-free, but that it carried "reasonable certainty of no harm." Id. (citation omitted). Margin of safety, which is a variation of the safety-factor approach, involves a judgment of whether an estimated ratio of the NOEL to actual exposures is acceptable. Id. The procedure for setting ADIs is still the basic procedure for establishing exposure limits today. Id. at 31. This method was recommended by National Resource Council committees in 1970, 1977, and 1986 and adopted by the Joint Food and Agriculture Organization and World Heath Organization expert committees on food additives and pesticide residues in 1965 and 1982. Id. at 30-31.
90. Id. at 29-30.
91. Id. at 32.
92. Id. at 33.
93. Id. at 31. The National Research Council promoted these models in its series of reports entitled Biological Effects of Ionizing Radiation. Id. The Nuclear Regulatory Commission later incorporated these models into its regulatory decision making. Id. The earliest legislative acknowledgment of the possibility that carcinogens may act through nonthreshold mechanisms was the "Delaney clause" of the Food Additive Amendments of 1958. Id.
94. Id.
95. Id. at 32. Carcinogenicity testing began increasing rapidly in the late 1960s, regulators began dealing with many newly identified carcinogens in commercial products in the 1970s, and analytic chemists began identifying carcinogens at lower and lower concentrations. Id.
96. Id.
97. Id.; see also Work Group on Risk Assessment, Interagency Regulatory Liaison Group, Scientific Bases for Identification of Potential Carcinogens and Estimation of Risks, 63 J. NAT'L CANCER INST. 241, 258-65 (1979) (describing mathematical models and analytical methods for quantifying human cancer risk).
98. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 32; Work Group on Risk Assessment, Interagency Regulatory Liaison Group, supra note 97, at 245.
99. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 33.
100. 448 U.S. 607 (1980).
101. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 33.
102. Id. at 33; see RED BOOK, supra note 75. This study, known as the "Red Book," continues to be the basis for EPA's risk-assessment paradigm. See, e.g., 1 U.S. PRESIDENTIAL/CONG. COMM'N ON RISK ASSESSMENT AND RISK MGMT., FRAMEWORK FOR ENVIRONMENTAL HEALTH RISK MANAGEMENT 23-28 (1997) (detailing current risk-assessment strategy at EPA).
103. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 33.
104. Id. at 34.
105. Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1319 (describing Ruckelshaus's push for EPA "to formulate a set of agency-specific generic cancer guidelines" and his support for standardized, science-based risk-assessment assumptions); see also William D. Ruckelshaus, Risk, Science, and Democracy, ISSUES SCI. & TECH., Spring 1985, at 19, 28-29 ("The explicit and open codification suggested by the NRC will .. . offer[] the possibility that one day all the protective agencies of government will speak with one voice when they address risks, so that estimates of risk will be comparable among agencies and the public at last will be able to make a fair comparison of the individual risk-management decisions of separate agencies."); Interview by Dr. Michael Gorn with William D. Ruckelshaus, Adm'r, EPA (Jan. 1993), available at http://www.epa.gov/history/ publications/ruck/21.htm (last updated Sept. 21, 2007) ("To the extent I began the process of risk-based decisionmaking within the agency, I consider this a major achievement. I believe it started when we embraced the [1983 NRC Report]. We began to use its principles in establishing priorities in the agency, and in managing the major risks society faced and EPA attempted to regulate.").
106. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 34.
107. Id.
108. Guidelines for Carcinogen Risk Assessment, 51 Fed. Reg. 33,992 (Sept. 24, 1986); SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 34.
109. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 34-35; see Guidelines for Mutagenicity Risk Assessment, 51 Fed. Reg. 34,006 (Sept. 24, 1986); Guidelines for the Health Risk Assessment of Chemical Mixtures, 51 Fed. Reg. 34,014 (Sept. 24, 1986); Guidelines for the Health Assessment of Suspected Developmental Toxicants, 51 Fed. Reg. 34,034 (Sept. 24, 1986); Guidelines for Estimating Exposures, 51 Fed. Reg. 34,042 (Sept. 24, 1986).
110. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 35; see Proposed Guidelines for Assessing Female Reproductive Risk, 53 Fed. Reg. 24,834 (June 30, 1988); Proposed Guidelines for Assessing Male Reproductive Risk and Request for Comments, 53 Fed. Reg. 24,850 (June 30, 1988); Proposed Guidelines for Exposure-Related Measurements and Request for Comments, 53 Fed. Reg. 48,830 (Dec. 2, 1988).
111. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 35; see Guidelines for Developmental Toxicity Risk Assessment, 56 Fed. Reg. 63,798 (Dec. 5, 1991); Guidelines for Exposure Assessment, 57 Fed. Reg. 22,888 (May 29, 1992).
112. See SCI. ADVISORY BD., EPA, REDUCING RISK: SETTING PRIORITIES AND STRATEGIES FOR ENVIRONMENTAL PROTECTION (1990).
113. National Center for Environmental Assessment, EPA, NCEA Basic Information, http://cf pub.epa.gov/ncea/cfm/aboutncea.cfm?ActType=AboutNCEA (last updated June 18, 2007). For a listing of current risk-assessment guidelines, see National Center for Environmental Assessment, EPA, Risk Assessment Guidelines, http://cipub.epa.gov/ncea/cfm/recordisplay.cfm? deid=55907 (last updated Aug. 23, 2006).
114. National Center for Environmental Assessment, EPA, NCEA Basic Information, supra note 113.
115. See SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 35-36 (highlighting EPA's adoption of risk assessment as a guide to decisions under various statutory schemes); Matthew D. Adler, Against "Individual Risk": A Sympathetic Critique of Risk Assessment, 153 U. PA. L. REV. 1121, 1156-59 (2005) (noting the use of risk assessment under CERCLA and FIFRA); see also Federal Insecticide, Fungicide, and Rodenticide Act of 1976, 7 U.S.C. §§ 136-136y (2000); Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692 (2000); Resource Conservation and Recovery Act of 1980, 42 U.S.C. §§ 6901-6992k (2000); Clean Air Act, 42 U.S.C. §§ 7401-7671q (2000); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (2000).
116. See SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 73, at 39-40 (noting that once a chemical is found to be potentially hazardous, the next step is to use risk assessment to establish dose-response relationships).
117. J.B. Ruhl, Regulation By Adaptive Management-Is It Possible?, 7 MINN. J. L. SCI. & TECH. 21, 28 (2005).
118. Id. at 30.
119. Wikipedia, Adaptive Management, http://en.wikipedia.org/wiki/ Adaptive_Management (last modified Mar. 1, 2008).
120. See generally INT'L INST. FOR APPLIED SYS. ANALYSIS, ADAPTIVE ENVIRONMENTAL ASSESSMENT AND MANAGEMENT (C.S. Holling ed., 1978); CARL WALTERS, ADAPTIVE MANAGEMENT OF RENEWABLE RESOURCES (1986).
121. See generally INT'L INST. FOR APPLIED SYS. ANALYSIS, supra note 120 (exemplifying Holling's work on adaptive management while at IIASA).
122. Warren T. Coleman, Legal Barriers to the Restoration of Aquatic Systems and the Utilization of Adaptive Management, 23 VT. L. REV. 177, 186 (1998); see also INT'L INST. FOR APPLIED SYS. ANALYSIS, supra note 120, at 1-2 (proposing adaptive environmental assessment and management as an alternative to traditional environmental assessment); WALTERS, supra note 120; Bradley C. Karkkainen, Adaptive Ecosystem Management and Regulatory Penalty Defaults: Toward a Bounded Pragmatism, 87 MINN. L. REV. 943, 948-56 (2003) (identifying a number of distinct variants on the concept of adaptive management, including scientific-hypothesis testing, macro-adaptation, and adaptive management as used by federal agencies).
123. 19 PUB. ADMIN. REV. 79 (1959) (advocating the successive limited comparisons method as an alternative to the rational comprehensive method of decision making by public administrators).
124. INT'L INST. FOR APPLIED SYS. ANALYSIS, supra note 120, at 19-20. The concept of resilience, as an overall criterion for policy design, embraces variability: The more that variability in partially known systems is retained, the more likely it is that both the natural and management parts of the system will be responsive to the unexpected. The very process and techniques we recommend, while aimed in part at reducing uncertainty, are designed as a changing adaptive process of policy design. Id.
125. Id. at 1.
126. Id.
127. WALTERS, supra note 120, at vii.
128. Id. at 2.
129. Id. at 2-3.
130. Timothy H. Profeta, Managing Without a Balance: Environmental Regulation in Light of Ecological Advances, 7 DUKE ENVTL. L. & POL'Y F. 71, 71 (1996); see also A. Dan Tarlock, The Nonequilibrium Paradigm in Ecology and the Partial Unraveling of Environmental Law, 27 LOY. L.A. L. REV. 1121, 1122-23 (1994) ("[T]he equilibrium paradigm has been rejected in ecology and replaced with a complex, stochastic nonequilibrium one.").
131. Thomas T. Ankersen & Richard Hamann, Ecosystem Management and the Everglades: A Legal and Institutional Analysis, 11 J. LAND USE & ENVTL. L. 473, 493 (1996) ("The law tends to encourage regulatory inaction in the face of uncertainty."). Adaptive management is being recognized and adopted in varying degrees by federal government agencies responsible for managing natural resources, including the National Forest Service, the Fish and Wildlife Service (FWS), the Department of the Interior, the Bureau of Reclamation, the Army Corps of Engineers, and the Bureau of Land Management. Coleman, supra note 122, at 187. Federal agencies have been using adaptive management for the restoration of critical ecosystems, such as the Pacific Northwest Forests, the Colorado River, and the Everglades. Id.
132. Profeta, supra note 130, at 86.
133. Id.; see also Coleman, supra note 122, at 178 ("The legal challenge is to maintain enough flexibility for institutions to manage systems that are in a constant state of flux, while providing the legal certainty required to satisfy procedural and substantive due process.").
134. Ankersen & Hamann, supra note 131, at 492.
135. J.B. Ruhl, Taking Adaptive Management Seriously: A Case Study of the Endangered Species Act, 52 U. KAN. L. REV. 1249, 1250 (2004). Edward Grumbine provided the following working definition of ecosystem management: "Ecosystem management integrates scientific knowledge of ecological relationships within a complex sociopolitical and values framework toward the general goal of protecting native ecosystem integrity over the long term." R. Edward Grumbine, What is Ecosystem Management?, 8 CONSERVATION BIOLOGY 27, 31 (1994) (emphasis omitted).
136. Ankersen & Hamann, supra note 131, at 492.
137. J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 999 (1997). "[V]irtually every collection of domestic ecosystem management principles, however varied, explicitly incorporates adaptive management as a guiding principle." Ankersen & Hamann, supra note 131, at 494. Grumbine found that adaptive management was one of the dominant themes emerging from a review of ecosystem-management articles in peer-reviewed journals up to 1993. Grumbine, supra note 135, at 29-31.
138. Ankersen & Hamann, supra note 131, at 495.
139. Kai N. Lee & Jody Lawrence, Adaptive Management: Learning from the Columbia River Basin Fish and Wildlife Program, 16 ENVTL. L. 431, 431-33 (1986). See generally John M. Volkman & Willis E. McConnaha, Through a Glass, Darkly: Columbia River Salmon, the Endangered Species Act, and Adaptive Management, 23 ENVTL. L. 1249 (1993) (discussing the proposal and implementation of adaptive management principles in the Columbia River Basin Fish and Wildlife Program).
140. Profeta, supra note 130, at 91.
141. Pub. L. No. 96-501, 94 Stat. 2697 (codified as amended at 16 U.S.C. §§ 839-839h (2000)).
142. 16 U.S.C. § 839b(a) (2000); Lee & Lawrence, supra note 139, at 435. See generally Northwest Power Planning Council, http://www.nwcouncil.org/Default.htm (describing the mission and purpose of the Northwest Power Planning Council and providing updates on its progress).
143. 16 U.S.C. § 839b(h)(1)(A).
144. Lee & Lawrence, supra note 139, at 436-37; see 16 U.S.C. § 839b(h)(11)(A)(i) (providing that fish and wildlife protected by the Act receive equitable treatment from the federal agencies responsible for operating or regulating hydroelectric facilities on the Columbia River or its tributaries).
145. 16 U.S.C. § 839b(h)(6)(B).
146. Lee & Lawrence, supra note 139, at 436-37; see 16 U.S.C. §§ 839b(h)(11)(A) ("Federal agencies responsible for managing, operating, or regulating Federal or non-Federal hydroelectric facilities located on the Columbia River or its tributaries shall...tak[e] into account at each relevant stage of decisionmaking processes to the fullest extent practicable, the program adopted by the Council....").
147. Volkman & McConnaha, supra note 139, at 1255.
148. Lee & Lawrence, supra note 139, at 435. Another example of the use of adaptive management is with the Glen Canyon Dam. The Glen Canyon Dam serves to store water and generate power. Tarlock, supra note 130, at 1143. The construction of the dam altered the flow of the river below the dam, resulting in decreased sediment deposits that build canyon beaches; decreased river temperature; and fluctuating releases of water - all of which threaten listed indigenous fish. Id. The resulting political pressure forced the Bureau of Reclamation to prepare $88 million worth of scientific studies, which then forced the Departments of the Interior and Energy to prepare environmental impact statements (EISs) for the operation of the dam. Id. The operating agencies have adopted adaptive management in order to be able to experiment with flow regimes and satisfy the NEPA EIS requirement. Id. (citation omitted).
149. SEE COMM. ON RESTORATION OF AQUATIC ECOSYSTEMS, NAT'L RESEARCH COUNCIL, RESTORATION OF AQUATIC ECOSYSTEMS: SCIENCE, TECHNOLOGY, AND PUBLIC POLICY 357-58 (1992) [hereinafter RESTORATION OF AQUATIC ECOSYSTEMS] (describing the adaptive-management methodology); Tarlock, supra note 130, at 1140 ("A recent National Research Council-National Academy of Sciences study captures the essence of adaptive management....").
150. See, e.g., Coleman, supra note 122, at 187 (citing a description of adaptive management from the 1992 NRC study).
151. RESTORATION OF AQUATIC ECOSYSTEMS, supra note 149, at 345.
152. Id. at 357.
153. Id. at 358. Concerns over declining fisheries and rising pollutants in the bay arose in the 1970s. Profeta, supra note 130, at 89. In 1975, Congress authorized a five-year study of threats to the Bay, and in 1983, Congress formed a structure to govern the ecosystem. Id. at 89-90. These efforts to protect the Bay eventually evolved to incorporate adaptive management in order to fill informational gaps. Id. at 90. The program had some success but failed to identify the exact relationship between water-quality levels and habitat health. Id.
154. RESTORATION OF AQUATIC ECOSYSTEMS, supra note 149, at 358.
155. Id.
156. Profeta, supra note 130, at 91. The goal of the plan was to resolve the conflicts arising between the protection of the spotted owl as an endangered species and timber harvesting. Id.; see also Ankersen & Hamann, supra note 131, at 495 (describing many efforts to reconcile biodiversity protection with industry in the Pacific Northwest). The plan designates adaptive management areas (AMAs) and regulates on the basis of ecosystem units. Profeta, supra note 130, at 91-93. The governance of the AMAs eventually evolved into a decentralized system in order to address ecosystem complexity and allow public input. Id. at 93.
157. Ankersen & Hamann, supra note 131, at 492.
158. Id.
159. Ankersen & Hamann, supra note 131, at 498. "The 1984 legislation authorized the Corps, in conjunction with the water management district, to experiment with deliveries of water to the Everglades National Park based on a concept referred to as the 'rainfall plan.'" Id. The goal of the experiment was to develop an optimum water-delivery plan for the Everglades National Park. Id. at 498-99. The Army Corps selected a "modified rain-driven plan" and initiated consultation with FWS under § 7 of the Endangered Species Act. Id. at 499. FWS authorized the Army Corps of Engineers' preferred alternative through an incidental-take permit. Id.
160. John H. Davidson & Thomas Earl Geu, The Missouri River and Adaptive Management: Protecting Ecological Function and Legal Process, 80 NEB. L. REV. 816, 819 (2001). The Master Manual is a system of written instructions for the operation of the Missouri River Basin. Id. at 834. The Master Manual was originally prepared in 1960. Id. In 1989, the Corps agreed to revise the Master Manual. Id. This was the first time the Master Manual would be subject to review under NEPA. Id. During the NEPA review process, the Corps of Engineers asked the FWS for formal consultation under the Endangered Species Act. Id. at 841. It is important to note that in 1994 FWS had announced a policy change that all of its regulatory and other functions would be guided by the concept of ecosystem management. Id. at 837. One of the Reasonable and Prudent Alternatives suggested by FWS in its biological opinion was the recommendation to adopt adaptive management. Id. at 842. FWS recommended two components of this new adaptive management process: establishment of an interagency coordination team, and implementation of a monitoring program. Id. All five alternatives in the RDEIS were to be "buttressed by a process known as adaptive management." Id. at 843. The Army Corps of Engineers planned to refine the adaptive management process in the RDEIS after it received the NRC report entitled Missouri River Ecosystem: Exploring the Prospects for Recovery. Id. at 844.
161. See, e.g., Samuel P. Hays, The Future of Environmental Regulation, 15 J.L. & COM. 549, 579 (1996) (discussing the use of adaptive management in the Clinton forest program in the Pacific Northwest as a new direction for public-land management); Volkman & McConnaha, supra note 139, at 1255-56 (describing the introduction of adaptive management into fisheries management in the mid-1980s).
162. Southwest Forest Health and Wildfire Prevention Act of 2004, 16 U.S.C. §§ 6701-6707 (Supp. V 2005); Estuaries and Clean Waters Act of 2000, 33 U.S.C. § 2903 (2000); Water Resources Development Act of 2007, Pub. L. No. 110-114, § 2031, 121 Stat. 1041, 1082 (to be codified at 42 U.S.C. § 1962-3); Energy Independence and Security Act of 2007, Pub. L. No. 110-140, § 633, 121 Stat. 1492, 1686 (to be codified at 42 U.S.C. § 17212).
163. Environmental Analysis of Army Actions, 32 C.F.R. § 651.5(d)(10)(v) (2008); National Forest System Land Management Planning, 36 C.F.R. § 219.3 (2008); Programmatic Regulations for the Comprehensive Everglades Restoration Act, 33 C.F.R. § 385.3 (2008); Criteria and Standards for the National Pollutant Discharge Elimination System, 40 C.F.R. § 125.93 (2006) (suspended by 72 Fed. Reg. 37,107 (July 9, 2007)).
164. GLADWELL, supra note 3.
165. See, e.g., id. at 282 endnote (listing several sociological studies of diffusion and collective behavior).
166. See id. (noting that the Tipping Point model has been described in several classic works of sociology).
167. See id. at 21 (introducing the concept of social epidemics).
168. See id. at 14 (describing the variety of phenomena covered by the Tipping Point concept).
169. Id. at 9.
170. Id. at 29.
171. Id. at 22.
172. Id. at 25.
173. Id. at 28-29.
174. Id. at 29.
175. Id. at 33.
176. Id. at 19-22.
177. Id. at 32.
178. Id. at 33.
179. Id. at 34.
180. Id. at 38.
181. Id. at 67.
182. Id. at 70.
183. See supra subpart IV(B).
184. See supra note 105 and accompanying text.
185. See supra note 105 and accompanying text.
186. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U.S. 607, 653-55 (1980).
187. See David Michaels & Celeste Monforton, Scientific Evidence in the Regulatory System: Manufacturing Uncertainty and the Demise of the Formal Regulatory System, 13 J.L. & POL'Y 17, 25 (2005) (stating that in order to meet the Supreme Court's mandate in Benzene, OSHA had spent considerable time preparing detailed quantitative risk assessments related to its health standards); Charles F. Mills III, Global RBCA: Its Implementation, Foundation in Risk-Based Theory, and Implications, 22 J. LAND USE & ENVTL. L. 101, 110-11 (2006) (discussing judicial affirmation of OSHA's use of quantitative risk assessment post-Benzene).
188. See supra notes 102-04 and accompanying text.
189. See supra notes 30-37 and accompanying text (discussing the origins of emergy synthesis); supra notes 120-29 and accompanying text (discussing the origins of adaptive management).
190. Sholto Maud & Dino Cevolatti, Realising the Enlightenment: H.T. Odum's Energy Systems Language qua G.W.v Liebniz's Characteristica Universalis, 178 ECOLOGICAL MODELLING 279, 283 (2004) (referring to H.T. Odum as the "'father' of systems ecology"); Ari L. Goldman, Eugene P. Odum Dies at 88; Founded Modern Ecology, N.Y. TIMES, Aug. 14, 2002, at A21 (referring to Eugene Odum as "the father of modern ecology").
191. GLADWELL, supra note 3, at 91.
192. Id. at 25.
193. CHIP HEATH & DAN HEATH, MADE TO STICK: WHY SOME IDEAS SURVIVE AND OTHERS DIE 12-13 (2007).
194. Id. at 8-10.
195. See id. at 14-18 (introducing the six principles of sticky ideas).
196. RED BOOK, supra note 75, at 48-49.
197. See id. (noting the "clear disadvantage" of animal studies in risk assessment due to species differences between animals and humans, and further acknowledging that "[differences among animal species...can account for toxicity differences").
198. See id. at 60-62 (describing the extrapolation of threshold-level doses eliciting toxic responses in lab animals to humans in dose-response models for noncancer toxic effects); see also Work Group on Risk Assessment, Interagency Regulatory Liaison Group, supra note 97, at 260-62 (describing mathematical models "proposed to deal with the problem of low-dose extrapolation").
199. See id. at 62-63 (describing the use of the "uncertainty- factor" approach to estimate "safe" exposure).
200. See David E. Adelman, The False Promise of the Genomics Revolution for Environmental Law, 29 HARV. ENVTL. L. REV. 117, 124-27 (2005) (discussing multiple critiques of risk assessment).
201. See, e.g., Jeffrey J. Hayward, The Same Mold Story?: What Toxic Mold Is Teaching Us About Causation in Toxic Tort Litigation, 83 N.C. L. REV. 518, 550 (2005) (distinguishing between "[s]cientifically determined threshold effect levels" resulting from risk assessment and the "regulatory standards" of risk management, "which incorporate[s] significant policy considerations such as the notion of 'acceptable' exposure levels") (citing 2 PRESIDENTIAL/CONG. COMM'N ON RISK ASSESSMENT AND RISK MGMT., RISK ASSESSMENT AND RISK MANAGEMENT IN REGULATORY DECISION-MAKING 55, 84-85 (1997)).
202. See, e.g., RISK ASSESSMENT FORUM, EPA, FRAMEWORK FOR CUMULATIVE RISK ASSESSMENT 92 (May 2003), available at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm? Deid =54944 (providing guidance for assessing risk from environmental stressors).
203. See INT'L INST. FOR APPLIED SYSTEMS ANALYSIS, supra note 120, at 33 ("Ecological systems are not static but are in continual change...and this dynamic change determines part of the structure, diversity, and viability of ecological systems.").
204. Id. at 8-9.
205. GLADWELL, supra note 3, at 139.
206. Id.
207. See ISI Web of Knowledge, http://portal.isiknowledge.com.
208. Interview by Dr. Dennis Williams with William K. Reilly, Adm'r, EPA (Sept. 1995), available at http://www.epa.gov/history/publications/ reilly/20.htm (last updated Sept. 21, 2007).
209. Id.
210. See, e.g., Jamie A. Grodsky, Genetics and Environmental Law: Redefining Public Health, 93 CAL. L. REV. 171, 243 (2005) (contending that the current regulatory scheme is broadly ignorant of the effect of multiple-pollutant interaction); Thomas O. McGarity, A Cost-Benefit State, 50 ADMIN. L. REV. 7, 27 (1998) (arguing that single-chemical risk assessments may understate risk in some cases).
211. Interview by Dr. Dennis Williams with Douglas M. Costle, Adm'r, EPA, in Vt. and McLean, Va. (Aug. 4-5, 1995), available at http://www.epa.gov/ history/publications/reilly/20.htm (last updated Sept. 21, 2007).
212. See, e.g., CHRIS MOONEY, THE REPUBLICAN WAR ON SCIENCE 26 (2005) (decrying the substitution of political considerations over scientific considerations); Juliet Eilperin, Ozone Rules Weakened at Bush's Behest: EPA Scrambles to Justify Action, WASH. POST, Mar. 14, 2008, at Al (describing how EPA recently had to justify a decision of the Bush Administration weakening ozone rules); Robert F. Kennedy, Jr., The Junk Science of George W. Bush, THE NATION, Mar. 8, 2004 (describing several instances where EPA was forced to justify some of its decisions).
213. See, e.g., Grumbine, supra note 135, at 28-29 (indicating a need for a more inclusive ecosystem-management approach); Profeta, supra note 130, at 71-75 (arguing that ecosystems are complex and interconnected).
214. See, e.g., Profeta, supra note 130, at 84-85 (arguing that environmental regulation must address the dynamic uncertainties present in ecosystems).
215. See, e.g., Pouyat, supra note 4, at 281-84 (noting legislative reluctance to incorporate biological and ecological scientific developments into laws).
216. Wendy E. Wagner, The "Bad Science" Fiction: Reclaiming the Debate over the Role of Science in Public Health and Environmental Regulation, 66 LAW & CONTEMP. PROBS., Autumn 2003, at 63.
217. Holly Doremus, Scientific and Political Integrity in Environmental Policy, 86 TEXAS L. REV. 1601, 611-617 (2008); see also Stephen M. Johnson, Junking the "Junk Science" Law: Reforming the Information Quality Act, 8 ADMIN. L. REV. 37, 40-41 (2006) (suggesting that the perception that the government was using "junk science" led to the passage of the Information Quality Act); Linda A. Malone, What Do Snowmobiles, Mercury Emissions, Greenhouse Gases and Runoff Have in Common?: The Controversy Over "Junk Science," 9 CHAP. L. REV. 365, 365-77 (2006) (describing the recent trend to use science to support political preferences with regard to the use of snowmobiles in national parks, greenhouse gases, and mercury emissions from power plants); Kennedy, supra note 212.
218. MARK R. POWELL, SCIENCE AT EPA: INFORMATION IN THE REGULATORY PROCESS 64 (1999).
219. See William Sanjour, In Name Only, SIERRA, Sept. 1992 (contrasting the early years of EPA, which attracted true environmental enthusiasts to the organization, with more recent challenges of staff crossover between EPA and the very industries it aims to regulate).
220. One of the worst examples of the trend away from science during the Reagan Administration was when EPA Administrator Anne Gorsuch fired most of the scientists on EPA's Scientific Advisory Board to replace them with scientists who were "good, solid Republicans." E. Donald Elliott, Strengthening Science's Voice at EPA, 66 LAW & CONTEMP. PROBS., Autumn 2003, at 45.
221. See POWELL, supra note 218, at 57 ("The long-term trend for EPA's science has been downward.").
222. See id. at 61 ("[B]ecause much of their time is devoted to contractor management, many of EPA's scientists are unable to practice their craft.").
223. Id. at 57.
224. Id.
225. Id.
226. Id. at 57-58.
227. Id.
228. Id.
229. Id.
230. Id. It should be noted that looking only at the ORD's budget may not fully capture EPA's science budget because scientific resources are also devoted to scientific work in the various program offices. However, it is difficult to separate out which portion of program resources are devoted to science. Id. at 60.
231. Id. at 60.
232. Id. at 60-61.
233. Id. at 61.
234. Id. at 61-62.
235. Id. at 62.
236. Id. at 61-64. Another criticism of contracting out science is that it can result in agency resources being spent to hire like-minded cronies who will manipulate their work to fit the political agenda of those who are writing their paychecks. Id. at 38.
237. See POWELL, supra note 218, at 63 tbl.3.5 (analyzing the breakdown of EPA employees with doctorates, which as of 1993 equaled less than 10% of those with college degrees).
238. See, e.g., U.S. Researchers Fear Job Losses from Privatization Drive, 424 NATURE 478, 478 (2003) (describing the Bush Administration's proposal to contract out federal scientific projects at EPA, National Park Service, and National Institutes of Health); Press Release, Pub. Employees for Envtl. Responsibility, U.S. Army to Contract out Environmental Staff (June 20, 2007), available at http://www.peer.org/news/ print_detail.php?row_id=875 (describing the U.S. Army's attempt to privatize its environmental, natural, and cultural-resource functions).
239. POWELL, supra note 218, at 63.
240. See Jon D. Miller & Rafael Pardo, Civic Scientific Literacy and Attitude to Science and Technology: A Comparative Analysis of the European Union, the United States, Japan, and Canada, in BETWEEN UNDERSTANDING AND TRUST: THE PUBLIC, SCIENCE AND TECHNOLOGY 81, 81 (Meinolf Dierkes & Claudia von Grote eds., 2000) (noting the widespread "public awe and admiration" at scientific advances).
241. See id. at 82 (chronicling growing institutional cynicism and public awareness of environmental damage).
242. See supra note 218 and accompanying text.
243. Although an evaluation of EPA's existing Scientific Advisory Board (SAB) is beyond the scope of this Article, in theory the SAB could fill the role of connector. Historically, however, the SAB has had only limited success as a connector. First, SAB members are full-time researchers at universities, companies, and other institutions and therefore have only limited time to devote to EPA activities. Moreover, SAB has been criticized as being overly politicized. For a further discussion of EPA's SAB, see generally JOHN D. GRAHAM, HARNESSING SCIENCE FOR ENVIRONMENTAL REGULATION (1991) (evaluating the SAB's regulatory science activities through 1988), and Elliott, supra note 220, at 45 (arguing for an increased role for science in policy making at EPA).
244. Interview by Dr. Dennis Williams with Douglas M. Costle, supra note 211.
245. Id.
246. See Elliott, supra note 220, at 53-62 (outlining three proposals to improve and strengthen the role of science at EPA).
247. Doremus, supra note 217, at 1626 (describing USGS as a nonregulatory agency that provides the Department of Interior with its primary source of scientific advice).
248. Id.