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10 Penn St. Envtl. L. Rev. 135 (2001-2002)
Who Owns Science

handle is hein.journals/pensaenlar10 and id is 159 raw text is: Who Owns Science? A. Dan Tarlock* I. Introduction: Why the Ownership of Science is Contested Most environmental controversies have a significant scientific component because science has played a major role in identifying the problem and in suggesting appropriate remedies. Two common, interlocking issues often recur in environmental disputes: (1) What is the state of the available, relevant science and (2) When is it legitimate to substitute democratically arrived at political decisions for scientific judgment? Science seldom controls the final outcome of the dispute, but policy-makers must generally operate within the parameters of science. The story of the George W. Bush administration's initial rejection and subsequent re-acceptance of the Clinton administration's arsenic drinking water standards is a classic example of how closely the science * Professor of Law, Chicago-Kent College of Law. A.B., 1962, LL.B., 1965 Stanford University. The argument of this paper reflects my 30-plus-years service on various National Research Council-National Academy of Sciences committees, which were charged with applying state-of-the-art science to a wide range of environmental and water resources policy issues. My views of the role of science in public policy decisions and in informing legal rules continue to evolve, but I wish to thank all of the physical and social scientists and NRC staff who gave me the science and science policy education that I missed in college. All errors of fact and judgment remain mine alone. In particular, I would like to thank Chris Gordon, a Symposium Articles Editor, and Lauren Carothers, the Editor-in-Chief, for editing my article. I would also like to thank the faculty, student organizations, and all the symposium participants. The exchange of views helped me clarify many of my ideas and this article benefited substantially from the opportunity to present it at The Dickinson School of Law of the Pennsylvania State University on January 18, 2002. 1. For example, courts are most willing to reverse agency action as an abuse of discretion when it flies in the face of scientific consensus. E.g. Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988) (describing the Fish and Wildlife Service's decision to ignore internal and external scientific consensus inrefusing to list Northern Spotted Owl under the Endangered Species Act). Summing up the history of environmentalism, J. DONALD HUGHES, AN ENVIRONMENTAL HISTORY OF THE WORLD: HUMANKIND'S CHANGING ROLE IN THE COMMUNITY OF LIFE 239 (2001) writes, We must understand our.collective actions in terms of what science tells about the operations of the natural systems. But science is not a dogma; it is a search for understanding that always continues. Thus age, with its characteristic skepticism, tends only slowly its accept what science demonstrates, but it will not accept anything that does not seem to have a scientific basis. Id. 135

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