Thursday, May 10, 2012
Scientific uncertainty is one of the most challenging realities for environmental law. As many have noted, uncertain science requires policy choices, but policymakers too often claim their decisions are dictated by science. In addition--as we have seen with climate change as well as Bisphenol A--scientific uncertainty is a frequently-used reason for failing to regulate.
The Wall Street Journal recently ran an interesting article on analytical trends in medical research. It describes the increasing prevalence of observational studies, which typically involve large analyses of already-existing data (as opposed to randomly controlled experimental studies). There is nothing wrong with observational studies in general, but the results can be hard to interpret if researchers aren't very clear about their methodologies; indeed, they have very low replicability rates.
This is just one example of how scientific uncertainty can cause confusion even among researchers in a given field. How can law respond if scientists aren't even sure what the data mean? It comes back to policy, of course. The FDA recently decided to deny a rulemaking petition to regulate BPA, reasoning there is still too much scientific uncertainty about its health effects. If we'd prefer our regulators to take a more cautionary approach, are there ways to structure that into authorizing statutes? And does anyone have an example of that kind of structural constraint working?