| Bar Bulletin |
June,
2004 |
BAR BULLETIN FOCUS
June 15, 2004 |
Environmental Law |
CONFERENCE TACKLES CLEAN SCIENCE
IN REGULATION
By Joanna B. Goger
On April 16, 2004, the University of
Maryland School of Law and the Center for Progressive Regulation co-hosted
the 2004 Ward, Kershaw Environmental Law Symposium. The topic of this
year’s symposium – Clean Science in Regulation – was chosen because of
growing concerns about the manipulation and misuse of science in the
regulatory arena, particularly with respect to decisions affecting public
health and the environment where scientific uncertainty has increasingly
been used to rollback essential protections. The conference highlighted
these abuses and provided an opportunity for collaboration on potential
solutions. The University of Maryland School of Law’s Environmental Law
Program, recently ranked fourth in the country among environmental law
programs by U.S. News and World Report, hosts the conference
annually with funds provided by the Baltimore law firm of Ward, Kershaw,
P.A.
This year’s conference harnessed the
expertise of several leading environmental law scholars, each of whom is a
member scholar of the Center for Progressive Regulation (CPR), a
non-profit research and educational organization of nearly 30
university-affiliated academics with expertise in the legal, economic and
scientific issues related to health, safety and the environment. CPR
launched its Clean Science in Regulation initiative last summer with the
development of a set of Clean Science Principles designed as an
affirmative response to the current politicization of science in
regulation. The principles highlight the concepts of scientific freedom
and independence, honesty and transparency and attempt to codify good
practice norms for science in regulation.
Rena Steinzor, Professor of Law and
Director of the Environmental Law Clinic at the University of Maryland
School of Law and a founder of CPR, brought the group to Maryland for this
year’s symposium to further the group’s Clean Science in Regulation
project. In addition to assembling these CPR scholars, the conference also
featured several prominent scientists from local institutions with
expertise on the role of science in regulation, including Dr. Katherine
Squibb, a professor and toxicologist at the University of Maryland School
of Medicine, and Dr. Lynn Goldman, a professor and epidemiologist with the
Johns Hopkins Bloomberg School of Public Health.
Together, the conference panelists plan to
co-author a book centered on the Principles of Clean Science for
publication in late 2004 or early 2005. The conference provided an
opportunity for these scholars to assemble and collaborate on the
principles and the contents of the book.
Several conference presentations
highlighted some of the current tools used to manipulate and slow the
process of developing and applying credible science in the regulatory
context. Presenters explored the many ways that credible science is
manipulated and attacked by industry, including examples from the tobacco
industry. Two case studies highlighted some of these problems in practice.
Dr. Jennifer Sass, a senior scientist at the Natural Resources Defense
Council, discussed attempts by the Department of Defense and perchlorate
manufacturers to discredit the science showing the serious public health
effects associated with perchlorate. Perchlorate, which is a fuel used in
munitions and rockets, has been detected in the groundwater at Aberdeen
Proving Ground and other areas around the country and is known to inhibit
the production of thyroid hormones necessary for normal fetal growth and
development. Professor Rena Steinzor highlighted similar attempts by
industry to discredit the science regarding the dangerous effects of
mercury exposure on pregnant women and fetuses.
Several conference presenters also
discussed the use of a recent appropriations rider, the Information
Quality Act, to bring challenges to scientific information disseminated by
federal agencies. The speakers discussed how this statute and others are
currently being used to curtail the dissemination of information relevant
to the protection of the environment and public health. The rider has also
been used by the Office of Management and Budget as the basis for proposed
peer review guidance that would require federal agencies to conduct peer
review of influential scientific information they disseminate. The
problems with applying such a process – usually reserved for the review of
science submitted to journals and grant proposals – to science used in
regulation, were topics of interest to many panelists.
The morning panels also explored the issue
of scientific independence. Dr. Katherine Squibb outlined several
situations that jeopardize scientific independence including the placement
of restrictions on experimentation and the suppression of research
results. Squibb emphasized that a loss of scientific independence can
allow for manipulation of regulatory decisions and can cause scientific
uncertainty to become a target of controversy rather than a basis for
better science. Many scientists that deal with regulatory issues have been
targets of such restrictions and suppression in recent years.
To highlight some of the mistaken
conceptions of science in the tort context, Carl Cranor, Professor of
Philosophy at the University of California Riverside, explored how the
U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals
and cases applying Daubert have perpetuated the inaccurate
application of good scientific principles by requiring epidemiological
studies and by categorically excluding scientific evidence developed from
use of such techniques as animal studies and human case studies.
To learn more about the University of
Maryland’s Environmental Law Program, visit
www.law.umaryland/environment.
For more information about the Center for Progressive Regulation and its
Clean Science project, visit CPR’s website,
www.progressiveregulation.org.
Joanna B. Goger is on the adjunct faculty at the University of Maryland
School of Law and is the chief policy analyst for the Center for
Progressive Regulation. She also participated as a panelist at this year’s
symposium.
