Volume 1999    Issue 1

Congress, Science, and Environmental Policy

Wendy E. Wagner^*

Attempts to legislate solutions to environmental problems have been unsatisfactory in a number of important ways. Most commentators have attributed the environmental laws' poor track record to failures of agencies and the judiciary that frustrate the administration of the laws. In this article, however, Professor Wendy Wagner shifts the focus to those who write the laws establishing environmental policy, the members of Congress. As Professor Wagner explains, the development of effective environmental legislation poses unique scientific challenges to Congress. Rather than failing to appreciate the importance of scientific data to solving environmental problems, however, Congress has put too much emphasis on scientific data--operating under the mistaken belief that science, alone, can provide the solutions to environmental puzzles.

Professor Wagner begins by defining the limited usefulness of scientific findings to the development of effective environmental legislation and by explaining the reasons such limits exist. She then explains the reasons Congress has, to this point, failed to recognize these limits. The author examines the three prevailing models of congressional decisionmaking and explains that under each theory Congress has political reasons to overrely on science.

Professor Wagner explains that Congress's continued dependence on science imposes a variety of costs on society and acts as a significant hindrance to effective environmental legislation. To avoid these problems in the future, she offers two suggestions for reform. The first reform proposal is designed to attack the problem from within Congress by educating legislators as to the existence of scientific uncertainties and the problems created by these knowledge gaps. The second reform, to be pursued concurrently with the first, attempts to lessen the courts' insistence, in review of agency rulemakings, on scientific evidence, especially when such evidence is not available.

* Associate Professor, Case Western Reserve University School of Law. B.A. 1982, Hanover College; M.E.S. 1984, Yale School of Forestry and Environmental Studies; J.D. 1987, Yale Law School.

I am grateful to Margaret Caldwell, Rebecca Dresser, Melvyn Durchslag, Jonathan Entin, Eric Fingerhut, Michael Gerhardt, Richard Lazarus, Andrew Morriss, Robert Rabin, Steven Shimberg, Barton Thompson, and Michael Walker for comments on earlier drafts. I am also grateful to participants at the Environmental Law Research Workshop at Georgetown Law School, the Environmental and Natural Resource Workshop Seminar at Stanford Law School, and to participants at faculty workshops at Hofstra Law School and Washington University School of Law for their lively commentary and suggestions. Maura Brozovic, Martin Gelfand, Christina Tuggey, and James Walsh provided valuable research assistance. This research was supported by a congressional research grant from The Dirksen Congressional Center and a summer research grant from CWRU School of Law.