Environmental Law Grows Up (More or Less), and What Science Can Do to Help

In this Article, Professor Rose assesses the role of science in a maturing modern environmental law. She describes this maturation process, beginning in the early 1970s with a first wave of behavior-based (BB) regulations. These regulations constrained the actions of resource-users, but generally they put to one side the very difficult task of linking particular legal constraints to direct impacts on environmental quality. BB regulations served a useful purpose in cutting back large pollution sources, but by the 1980s they came under increasing criticism for their inflexibility, inattentiveness to cost-effectiveness, and failure to confront small and diffuse sources that could be cumulatively more damaging than large or obvious sources. To remedy these and other problems, a now-maturing environmental law has turned increasingly, although as yet incompletely, to quality-based (QB) approaches, which attempt to connect regulatory efforts directly to improvements in environmental quality. However, the newer QB approaches, including market-based programs, entail much greater reliance on measurement of the relationship between resource uses and quality changes. This pattern in turn puts new demands on scientific knowledge, especially for ways to measure or model (a) small and scattered sources and their impacts, (b) marginal or cumulative effects of differing amounts of the same kinds of resource uses, and (c) synergistic effects among different kinds of resource uses, particularly in connection with system-wide regulatory approaches. Policymakers need the Scientific community to take these seemingly unglamorous but critical measurement tasks to heart-and also to be tolerant of the ways in which conditions of uncertainty necessarily affect policy decisions