As the moderator of this blog, I am the designated devil’s advocate. Read together, Rena’s and John’s entries make my assignment easy. Both write upbeat and insightful entries about their preferred approaches for the future, but they reach diametrically opposite conclusions. John suggests that the best solution for the manipulation of regulatory science is to base environmental policy on as little science as possible (or at least to be more self-conscious about whether we really need science to make environmental policy). Rena, by contrast, argues cheerfully that the answer lies in the scientific community. “You have only to look at” the work of a respected EPA Science Advisory Board – the CASAC (Clean Air Science Advisory Committee)” to see how the problems with regulatory science are being solved. “Scientists,” she concludes, “must simply step up to the challenge.”

So – at the big picture level -- who …

Reading Wendy’s rather gloomy assessment of the abuse of science in regulatory decisionmaking – which is to say, in political decisions – and Rena’s more upbeat reply, I find myself asking why we are so tied to science in the first place. If the science is so subject to bias and abuse, why are we relying on it as the basis for policy? Shouldn’t we find alternative, rational grounds for action?

The short answer, of course, is that science discovered the environmental problems in the first place. Science revealed the carcinogenic effects of pesticides and chemicals, and we rely on new, cutting-edge science to tell us whether pesticides and chemicals are endocrine disrupters and whether to worry about nanotechnology. And since science was fundamental to the founding of the field, it made of sense to follow the science as it told us more and more about …

I think Wendy paints far too black a picture of the current state of affairs, and that rays of sunshine are beginning to poke through this particularly cloudy sky. I rest my case for more optimism on the increasingly aggressive role that scientific advisory boards are playing when political appointees at the Environmental Protection Agency play fast and loose with the science. 

One can quickly become depressed by the problems afflicting the science used for regulation of public health and the environment, and CPR bears a substantial share of responsibility for painting a grim picture of a world where politics prevails over science. In a Cambridge-published book, Rescuing Science from Politics, and an accompanying white paper that summarizes the book, along with a second white paper on the problems of scientific secrecy, CPR offers a wide-ranging diagnosis of what ails the science used for regulation. It ultimately concludes that there is far too much manipulation of scientific research by industry; that there are far too few incentives for agencies and even interest groups who are honest about the limits of science and remaining scientific uncertainties; and that many of the processes that purport to support and nourish regulatory science (like peer review; data access; and scientific freedom) are filled …

There are three relevant actors in the preemption play: the courts, the executive, and the Congress. For various reasons, the mood of the Supreme Court at the present time is to limit tort actions generally. “Tort reform,” generally unsuccessful in state legislatures and Congress, is being implemented by the Supreme Court unilaterally. Daubert requirements for expert testimony, substantive due process limitations on punitive damages, and preemption of state tort law are three of the ways the Supreme Court is attempting to handcuff plaintiffs in tort actions. The present administration, despite its continuance in effect of Executive Order 13132 that attempts to limit preemption, has adopted a policy of having agencies assert preemption claims as amici in courts as well as in preambles to new regulations. Congress, the actor with the most power in this play, has been incapacitated by the lack of a filibuster-proof majority in the …