Science and Environmental Law Collaboration Across the Double Helix

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Keywords: Science and environmental law scholarship, interdisciplinary collaboration, history of science and environmental law, science and judges, law and science, risk and precaution, science and policymaking, reflexive learning and interdisciplinary working

Abstract: Science engages both substantially and methodologically with environmental law more than with any other law subject. Collaboration between environmental lawyers and scientists is essential in the development of sustainable solutions to environmental problems. Law and science are distinct disciplines with their own autonomy and methodology Science claims objective facts as reality, while law seeks to reconcile different understandings or disputes about facts. Legal truth and scientific truth may seem to be at odds with each other. In the policy field scientific expertise can be in conflict with political or media perspectives; nevertheless effective legislation has to be based on sound science. Judicial opinion is often reliant on science but may struggle to accommodate it within legal doctrines. In this paper we put the intersection of law and science under scrutiny in an effort to address what is seen as one of the 'structural sources' of environmental law scholarship used in defining environmental problems. Our approach is interdisciplinary as the integration of science with law provides a normative influence over environmental law and has greatest potential to shape the future of environmental law scholarship. Interdisciplinarity requires recognition of differing methodologies but also the facility to collaborate across the disciplinary divide. This is illustrated by examples such as the influence of risk assessment and the precautionary principle; EU legislation such as REACH, the Water Framework Directive (WFD); and the demands of regulating new developments such as GMOs. We argue for a greater mutual dialogue and understanding between law and science that supports a reflexive learning approach that crosses disciplines and is based on the principles of evaluation and justification. Both inductive and deductive forms of reasoning contribute to the dialogue and science is regarded not as an autonomous and external input into law and environmental policy making, but as intrinsic to the regulatory process. In contemporary society science is embedded in the legal and administrative culture in which it is a partner more than in the past. Science helps establish the facts and data as well as the techniques of evaluation, which are essential for sustainable environmental regulation. We argue that the existing epistemological/methodological framework must shift to accommodate a different perspective that is sufficiently reflexive to promote effective learning specifically linked to solutions that correspond to identifiable environmental problems. Reflexive learning processes should engage with the changing and diverse approaches to regulatory styles of governance and the diffuse and complex nature of environmental problems.

INTRODUCTION

Environmental scholars' have been engaged in considerable debate about the future direction of environmental law scholarship. An important aspect of the debate is the relationship between environmental law and science interlinked in terms of both policy making and legislation. The focus of this paper is to place the relationship between law and science under scrutiny as the lynchpin on which much environmental law is organised.2 This paper offers a descriptive exposition of, and normative discourse about, science in the nature and content ol environmental law. Existing environmental law scholarship1 has recognised the importance of science and its formative role in legitimating environmental law and policy; the challenges of scientific uncertainty, including risk,4 and the politics and accountability of environmental decision making. New scientific advances constantly challenge the existing knowledge base in environmental science and the adequacy of environmental law and regulation. Responsive and flexible approaches are required to address environmental problems, both new and old. Inevitably responses will have to engage with the assessment of risk for environmental and human health. The focus for this paper is to propose collaboration between environmental law and science based on evaluation and justification. It is suggested that this should be based on an interdisciplinary relationship between law and science, supported by reflexive learning between the disciplines.5 This will require environmental lawyers to develop 'inter-actional expertise' with other disciplines,6 both scientific and social scientific, as articulated in 'Maturity and Methodology'. It is necessary to set priorities, and to recognise and admit difficulties when scientific solutions fail to mesh with legal outcomes, or where the law appears irrelevant or is ignored in policy making.

Striving for shared understanding sets a formidable challenge - and it has to be admitted that it may prove overambitious and unrealisable, but it is a necessary step to take if environmental scholarship is to reach a new maturity. Both disciplines have much to gain from the successful development of interdisciplinary working and the outcome may lead to better, proactive management of environmental problems. Law and science, however, offer contrasting styles of engagement with contested boundaries and fears about capture. This inevitably raises barriers to dialogue. It also has to be admitted that reflexive learning7 is ambitious and demanding. It can be facilitated through improvements in how environmental lawyers are trained and educated to foster the necessary collaboration with science. Lawyers have to accept that there are limitations to legal rules and their suitability.

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