William & Mary Environmental Law and Policy Review


Jan G. Laitos


This is an article about science and environmental law. More specifically, it is an article about two different versions of science, and how each has affected environmental law and the development of environmental policy. The emergence of science-driven environmental law has significantly affected how humans view and respond to the natural world that makes up the biosphere, which is the thin envelope surrounding the Earth that permits the human species to exist. This Article argues that humans, and law-makers, should embrace a different role for science. Instead of science answering “what is” questions, it should also explain the universal laws of the natural environment, so environmental laws can be consistent with those fundamental natural laws. Only then can environmental policy, and its laws, successfully ensure that the biosphere will continue to be a home for humans.

Environmental law was “invented” approximately fifty years ago. In the 1960s, the United States Congress reacted to the growing awareness of human-caused threats to the natural environment by enacting the Water Quality Act of 1965, and then the Natural Environmental Policy Act of 1969. These statutes were just the beginning of an enormous number of environmental laws and regulations, which were put in place to address the widely held perception that human behavior has been adversely affecting the natural environment, and the health and safety of humans living in that environment. Environmental policy has guided these many laws. This policy has been based on various assumptions about how the environment works and how humans behave. Science has provided law-makers with models about how the environment functions and the ways humans make choices about this environment. For much by a classical version of science—utilitarian science. That type of science became essential to the formulation of policy. Science became the critical informational input for environmental decision-making of the lifespan of environmental law, environmental policy has been aided by a classical version of science—utilitarian science. That type of science became essential to the formulation of policy. Science became the critical informational input for environmental decision-making.Utilitarian science is designed to help policymakers reach answers addressing “what is.” Those who make policy supply the “ought” answers. Utilitarian science helps to supply the legal requirements of empirical proof for environmental causation. In addition, environmental statutes call for policymakers to establish regulatory standards as tools for preventing pollution and human-made waste from creating environmental and human harm. Utilitarian science sets these standards. This class of science tells policymakers what is safe for human health and what is not.

But classical utilitarian science has several limitations that make it an imperfect fit for environmental law and policy. It often cannot provide the definitive answers to the questions that environmental policymakers ask. This failure to supply answers is due to the many uncertainties that surround environmental science. Moreover, environmental conclusions based on science can easily be attacked in court, and in the political arena, for being based on flawed or inadequate data. Due in part to these shortcomings in utilitarian science, commentators and scholars have increasingly suggested that environmental policymakers should instead consider using a different version of science—explanatory science.

Rather than only determining “what is,” in order to inform policymaking, explanatory science provides unifying principles necessary to understand the underlying structure and dynamics of nature and humans. Utilitarian science presumes a separation between science and the value judgments inherent in environmental policy. Explanatory science is more directly linked to policy; it embraces scientific “theories,” such as complexity theory and systems theory, as the best way to bring about successful policy reform. The scientific theories that underlie explanatory science are not separated from policy; they should be integrated into policy, and influence and shape policy.

This Article argues that explanatory science should do more than just “influence” environmental policy. The Article advances the proposition that, consistent with the Principle of Universality, science should direct and determine environmental policy. The Principle of Universality is a manifestation of explanatory science which holds that all laws of nature must work the same everywhere,and at every time. The Principle states that it does not matter who conducts the experiment testing nature’s laws, or where or when the test occurs; the results will be the same, regardless of whether the test involves biology, chemistry, physics, or the forces of the universe. From this generally recognized, but underappreciated, principle follows this realization: For environmental policy to succeed, it must conform to the demands of the Principle of Universality. And one of the demands of Universality is this: our laws about nature should be consistent with the laws of nature.

This Article makes the case that for environmental laws to succeed, they must reflect and conform to the universal scientific truths of nature. The mantra for policymakers is simple: successful environmental laws, as well as the policies that structure and cabin these laws, should adhere to the fundamental laws of the natural world and our biosphere. What are these universal truths? What laws, or rules, do physical, biological, and chemical systems all follow? Scientists have begun to unravel nature’s secrets, the principles which all natural phenomena obey, and which comprise nature’s master plan. This Article urges that our environmental policies should closely follow the basic workings that nature employs, which resonate throughout all the operating systems of the universe.

Part I discusses the two roles that science has played in the development of environmental policy—as a utilitarian tool to provide policymakers with evidence and data, and as an explanatory insight into the unifying principles that describe the behavior of both nature and humans. Part II addresses how utilitarian science has played a critical role in the development of environmental law throughout the twentieth century. Its primary function has been to inform the decision-making of policymakers. Utilitarian science has helped to define a view of how nature works and how humans make choices. These assumptions have become embedded in most of the environmental statutes that now comprise the bulk of environmental law.

Part III chronicles how, in the twenty-first century, explanatory science has sought both to alter the relationship between science and policy and to cause us to rethink our previous assumptions about the workings of nature and the behavior of humans. Explanatory science suggests that certain scientific theories, such as complexity theory, chaos theory, and even game theory, should directly influenceenvironmental policy. As a result of explanatory science, new environmental laws have been proposed that better reflect the reality of the natural environment as a nonlinear dynamical complex adaptive system. Environmental laws which embrace this reality opt for adaptive management rules and policies that protect biodiversity and ecosystem services. Similarly, explanatory science has yielded new and counter-intuitive empirical realizations about human behavior. As a result, more twenty-first century laws rely on bottom-up structures that “nudge” people to make better choices about the environment, instead of traditional top-down commands and prohibitions.

Part IV proposes a rethinking of environmental law in which science does more than inform decisions (Part II) or influence policy (Part III). Instead, science, particularly explanatory science, should directly determine policy. One central manifestation of explanatory science—the Principle of Universality—should be adopted by environmental policymakers so that environmental laws about nature are consistent with the laws of nature. Part IV identifies the two principal laws of nature, and offers a model of environmental policy which would conform to these universal laws. Environmental policy that satisfies the Principle of Universality stands a better chance of succeeding in establishing an environmental agenda that actually works.