Harnessing the Power of Science in Environmental Law: Why We Should, Why We Don’t, and How We Can

Environmental Law was born out of the new scientific understandings of ecology in the mid-20th century. Although science has historically played a role in environmental law, its role has been more limited than may seem appropriate for an area of law that it so dependant on science to inform sound decision-making. Unfortunately, a number of factors have limited the ability of environmental law to adapt to and incorporate new scientific developments that could greatly improve environmental decision-making. This article will begin by reviewing the ways in which science is employed in environmental law and the barriers that often inhibit new scientific developments from being used in environmental law. While recognizing that barriers and opportunities exist in a number of legal fora, including in the judicial setting and the legislative setting, this article will focus on barriers and opportunities in the administrative rulemaking and policy development setting. To illustrate how legal scholars, lawmakers, environmental agencies, and practicing lawyers have attempting to incorporate new scientific developments into environmental law, particularly in the administrative context, this article will trace the journey of three distinct scientific developments: 1) risk assessment; 2) adaptive management; and 3) emergy synthesis, from scientific academia to environmental administrative law. These three scientific developments were chosen because although all three are relatively recent developments, each has had a unique journey and a varying degree of success being incorporated into the law. Risk assessment has been embraced by regulatory agencies and has become an integral part of environmental law. Adaptive management, on the other hand, while endorsed by scientists and legal academics, has not yet successfully found a home in the law. Finally, emergy synthesis, although in existence for more than thirty years, widely accepted in the scientific community, and having the potential to transform environmental decision-making, has been largely ignored by the legal community. This article will explore the reasons why the law has treated these different scientific developments in such dramatically different ways. The article will conclude by attempting to draw conclusions about what types of scientific developments are most likely to be incorporated into the law and suggesting ways for improving the likelihood that new beneficial developments will be adopted to inform the law.