Judith Jones

What kind of science is being used by our political leaders and law makers when they assess things like environmental impact? How could the seemingly disparate worlds of science and the law be better integrated? Judith Jones, a senior lecturer in law from the ANU College of Law surveys the scene.
 
What happens when law and science meet in the context of public administration?

When our legal and policy decision-makers use science to assist with making a choice, they are informed by what might be called the ‘best available science’ or ‘regulatory science’. But this is often not science as the scientific community would recognize it. The time frames for making decisions are legally constrained, so the information gathering process is not equivalent to the idealized process of scientific inquiry, which, in theory, is never finished. Once a legally binding decision is made, it is rarely open to revision or reinterpretation in light of new evidence, as scientific inquiry dictates. While there may be some avenues of appeal against some types of judicial decisions should new evidence come to light, the decisions of public administrators relating to environmental assessments are much harder to reverse. Once a development is approved and constructed, a license issued, a forest logged and biodiversity diminished, it is usually impossible to put things back the way they were.

The problem of grappling with science in regulatory, political and administrative contexts is not new. Typically, regulatory science is regarded as inadequate. For example, in September 2007 an expert panel chaired by Dr Jim Peacock, Chief Scientist to the Australian Government, assessed the documentation and public comment relating to the Gunns Limited proposal for a new pulp mill in Tasmania. The panel found that the mill “poses some residual risks and uncertainties” and that aspects of the assessments “were inadequate”. This scientific assessment of regulatory science is typical and could be applied to almost any environmental or health risk assessment report in Australian regulatory affairs. Australian regulatory science is generally proponent-produced under short time frames, determined by commercially oriented budgets, with minimal scrutiny from scientific peers. This results in all kinds of inadequacies and uncertainties when judged against standards of science.

Juggling factors

Science may not be the only factor in an environmental approval. Neither the scientists who produce the information, nor the decision-makers who receive it, are immune from economic, social and political considerations. An important feature of Australian legislation governing environmental impact assessment is that it expressly authorizes decision-makers to take economic and social considerations into account when approving projects. Although environmental impact assessment is frequently perceived to be about evidence-based public administration, the reality is that a decision can legally be based on just about anything other than environmental considerations.

But while there may be public and policy debate on appropriate levels of environmental protection, there is more general agreement on the importance of transparency in public administration. In Australia, public administrators are not generally obliged by law to provide reasons for their environmental approvals. Although occasionally governments might volunteer reasons for approving a project, generally the public is kept in the dark as to the exact basis for an approval.

What kind of scientific information on predicted harm was accepted or rejected by the decision-maker? What level of uncertainty or risk of environmental and other harm is the government accepting when approving a project? These are important questions for opponents to a development and for an understanding of a government’s environmental policy. Yet because there is no legal obligation to provide reasons, they usually have no clear answer. Further, there are limited avenues through the courts for appeal or review of the scientific or factual basis of the decisions – and there are many administrators, judges and legal academics who argue that judicial deference to fact finding and policy-driven decision-making by public administrators is entirely appropriate.

What is the role of science?

Whether regulatory science is indeed adequate for its purpose depends on what one sees as its regulatory role. A negative view of our environmental approvals legislation suggests that the law simply requires that the environment minister be fully informed about the harmful environmental consequences of a project before it is approved. A more positive approach recognizes that the scientific information within the environmental impact assessment process can be used to modify and develop proposals to the point where the environmental risks are adequately monitored and managed.

Regardless, if one assumes that governments do need to be adequately informed about the environmental consequences of risky proposals, and that they are looking to scientists for information to assist with assessing and minimizing those consequences, what then ought environmental regimes say about the quality of science that is to be relied upon? How can regulatory regimes be designed to enhance the quality of scientific information that public administrators receive?

Regulatory tools for scientific uncertainty

A number of regulatory tools and techniques adopted by parliaments for handling science and risks in regulatory contexts have been identified. The starting point is usually an express acknowledgement of the potential for scientific uncertainty. Here, more recently, ‘precautionary’ approaches have had limited success when combined with legislative attempts to shift the burden of scientific proof onto applicants - a legal concept more familiar in the criminal law than in public administration. Going against the trend and somewhat in denial about definitional difficulties and other practicalities, regulators in the US have also sought to mandate a ‘sound science’ approach within some regimes. Parliaments in Australia have also sought to avoid complexities with risk estimation by simply regulating ‘worst things first’, relying on a consensus approach or an estimation of risk. Finally, although underused, some types of developments lend themselves to an adaptive management approach, where activities can be progressively approved and subject to mandatory monitoring and reporting prior to expansion.

Interestingly, none of these diverse approaches dominate regulatory design, each having been used separately or in combination with each other, with varying degrees of appropriateness and success depending on the circumstances. When it comes to regulatory design, there has never been any conscious articulation of the role of science in public administration and environmental decision-making. Rather, the regulatory approaches that currently exist for informing decisions and addressing scientific uncertainty are the result of ad hoc legislative design. Nonetheless, we have sufficient regulatory mechanisms upon which to build to be able to respond not only to science but also to regulatory science.

Can science and law meet?

In the media, the scientific literature and IPCC reports, there are scientists who point to global and local environmental consequences associated with global warming that must be avoided. Whether this is called ‘science’ or ‘regulatory science’ is really of no importance. What must be recognized is that public administrators can only make decisions consistent with laws passed by parliament, and at present there is an enormous gulf between what this science is saying about the need for environmental protection and what the law requires public administrators to decide. If law and science are going to meet in the context of public administration, then one of them has to change. Somehow I don’t think it is going to be the science.