The Uses of Scientific Information in Environmental Decision Making

This Article explores the response of the legal system to the uncertainty which is inherent in the scientific analysis of environmental impact. The first principle of due process is that the assignment of responsibility correspond with the actor who did in fact cause the injury. We argue that existing concepts of cause-in-fact, the foundation of liability, place potentially severe constraints on the ability of the legal system to respond to the need to minimize the risks of future environmental injury. Further, these constraints exist to some degree regardless of whether the prohibitions or restrictions take the form of adjudication, administrative rulemaking or legislation. In any of these contexts a court or agency applying a standard or reviewing a regulation may respond to the claim that an activity should not be allowed because of its potential future adverse impact by deciding that it would be speculative to conclude that the activity might cause harm, or that the party seeking to assign responsibility has merely established a possibility rather than a probability of such impact. In short, an essential element of responsibility—cause-in-fact—may not have been established