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Downloaded/Printed from Heinonline ( Wed Aug 10 06:37:09 2011 +(,121/,1( Citation: 95 Colum. L. Rev. 1613 1995 Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Aug 10 06:37:09 2011 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0010-1958 COLUMBIA LAW REVIEW VOL. 95 NOVEMBER 1995 NO. 7 THE SCIENCE CHARADE IN TOXIC RISK REGULATION Wendy E. Wagner* Introduction .................................................... 1614 I. The Science-Policy Nature of Toxic Risk Problems .......... 1618 A. The Mixture of Science and Policy .................... 1618 1. Limits of Science .................................. 1619 2. The Fragmented Contributions of Science .......... 1622 B. The Need for Experts in Separating Science and Policy ................................................. 1627 II. The Prevalence of the Science Charade .................... 1628 A. The Unintentional Charade ........................... 1631 B. The Irrtentional Charade .............................. 1640 C. The Premeditated Charade ............................ 1644 III. Political, Legal, and Bureaucratic Incentives for Agencies to Engage in the Science Charade ............................ 1650 A. Political Incentives .................................... 1651 B. Legal Incentives ....................................... 1654 1. Decreased Public Involvement ...................... 1654 2. Interest Group Oversight ........................... 1657 3. Judicial Review ..................................... 1661 4. Science-Based Legislative Mandates ................. 1667 C. Institutional Incentives ................................ 1669 1. Nonscientists ....................................... 1669 2. Scientists .......................................... 1671 IV. Consequences of the Science Charade ...................... 1673 A. Barriers to Democratic Participation ................... 1674 B. Impediments to Protecting Public Health .............. 1677 1. Inaction and Delay ................................. 1678 2. A Skewed Prioritization System ..................... 1681 3. Transaction Costs .................................. 1684 * Assistant Professor, Case Western Reserve University School of Law. BA., 1982, Hanover College; M.E.S., 1984, Yale School of Forestry and Environmental Studies; J.D., 1987, Yale Law School. I am extraordinarily grateful to Bert Black, Rebecca Dresser, George DentJon Entin, Peter Gerhart, Paul Giannelli, William Marshall, Andrew Morriss, Anne Park, Richard Pierce, Robert Strassfeld, and Michael Walker for their comments on earlier drafts, to Judy Reardon, James Drozdowski, Silvia Riechel, Martin Gelfand, and Rhonda Baker for their editorial and research assistance, and to Ellie Ettinger for her secretarial help. This research was supported by summer grants from Case Western Reserve University School of Law. HeinOnline -- 95 1613Colum. L. Rev. 1613 1995 1614 COLUMBIA LAWREVIEW [Vol. 95:1613 C. Adverse Impacts on Science ........................... 1685 1. Incomplete or Inaccurate Science .................. 1686 2. Disincentives for Research .......................... 1687 3. Public Alienation from Science ..................... 1688 V. Reform .................................................... 1689 A. The Inadequacy of Current Reforms ................... 1689 1. Reforms to Speed Promulgation of Regulations ..... 1689 2. Reforms to Enhance Public Participation ........... 1695 3. Reforms for Optimal Incorporation of Science ..... 1699 B. Proposed Reforms ..................................... 1701 1. Congress ........................................... 1703 2. The Agencies ...................................... 1706 3. The Courts ........................................ 1711 Conclusion ..................................................... 1719 Appendix ....................................................... 1720 Science has been the thorn in the side of environmental policy- makers since the dawn of environmental law.1 Sound environmental policy cannot be developed without some scientific basis; yet attempts to incorporate science into environmental regulations have met with failure. Reduced public participation, excessive regulatory delays, and the of science have plagued incomplete and inaccurate incorporation 2 science-based environmental regulation for nearly three decades. The first serious attempts to base environmental and public health policy on science began in the 1970s with a series of ambitious federal laws. In these statutes Congress directed that regulatory standards be based on levels determined by scientists to be protective of the public health or environment.3 By 1987, however, less than fifteen percent of 1. See, e.g., Carl F. Cranor, Regulating Toxic Substances: A Philosophy of Science and the Law 11 (1993) ("Because our present lack of scientific knowledge will probably extend for some time into the future, we are condemned to assessing and regulating toxic substances 'through a glass darkly.' ");J.D. Nyhart & Milton M. Carrow, Introduction in Law and Science in Collaboration 1, 1 (J.D. Nyhart & Milton M. Carrow eds., 1983) ("One of the more elusive problems of our times is the development of effective decision-making processes of regulatory agencies and courts where science and technology issues must be resolved."); Examining the Role of Science in the Regulatory Process: A Roundtable Discussion About Science at EPA, Environment, June 1983, at 6 (statement of Alan McGowan, executive editor of Environment) (of great concern "is how one turns science into regulation, or how one turns what is known or not known in the scientific community into regulations that protect the health and safety of individuals and the environment"). 2. Representative Charles Rangel (D-NY) and the Honorable Bella S. Abzug summarized this failure in explaining Congress's departure from a science-based approach to water pollution control. "[T]he history of our water pollution control program suggests that State and Federal governments will continue to founder on the staggering complexity of this control system, which requires working mathematically back from the permitted pollution levels in a waterway to the effluent limitations at the point source needed to achieve them." H.R. Rep. No. 911, 92nd Cong., 2d Sess. 396 (1972). See generally infra Part V. 3. For a list of science-based mandates, see infra note 15. HeinOnline -- 95 Colum. L. Rev. 1614 1995 1995] THE SCE1NCE CHARADE 1615 the necessary standards had been promulgated under science-based statutory mandates, 4 and the development of even these few standards suffered from limited participation by the general public5 and charges of 6 scientific incompetence against the implementing agencies. With the agencies' failure inevitable under science-based mandates, Congress has begun to abandon attempts to base environmental standards on science. 7 In the reauthorization of several major environmental laws, acceptable levels of toxic pollutants8 are determined 4. The 15 percent calculation was reached by dividing the total number of science- based standards or regulatory actions under the Clean Air Act, the Safe Drinking Water Act, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the Toxic Substances Control Act (TSCA), and the Occupational Safety and Health Act, see infra notes 240-241, by the total number of toxic substances considered by the Office of Technology Assessment to be significant candidates for regulation. See Office of Technology Assessment, U.S. Congress, Identifying and Regulating Carcinogens: Background Paper 20 fig. 1.2 (1987) (listing number of Annual Report chemicals for which there has been "action" and "no action") [hereinafter OTA Paper]. 5. See infra Part IVA_ 6. See infia Part IV.C.I. 7. In both the control of water and air toxics, Congress not only switched to a technology basis for initial toxics regulation, but expressly specified the initial list of toxic substances for which standards must be promulgated. See 33 U.S.C. § 1311 (b) (2) (C)-(D) (1988) (referencing House Committee Report for list of 126 toxic substances for which technology-based standards must be promulgated); 42 U.S.C. § 7412(b) (Supp. V 1998) (list of 189 air toxins for which technology-based standards must be promulgated). Congress was again indicating that it did not have faith in the agency to make expedient scientific determinations in any phase of standard setting. See Oliver A- Houck, The Regulation of Toxic Pollutants Under the Clean Water Act, 21 Envtl. L. Rep. (Envtl. L. Inst.) 10,528, 10,537 (Sept 1991). The agencies have also attempted on at least two occasions to "convert" science-based statutory mandates into mandates that allow standards to be based instead on technology. The first instance occurred through a court-entered settlement under the water toxics provision of the Clean Water Act. See Ridgway M. Hall, Jr., The Evolution and Implementation of EPA's Regulatory Program to Control the Discharge of Toxic Pollutants to the Nation's Waters, 10 Nat. Resources Law. 507, 519-25 (1977). In a relatively recent regulation, the Environmental Protection Agency (EPA) interpreted a mandate under the Resource Conservation and Recovery
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