(2) Environmental Law, Policies, and Protection

The Scientific Paradigm

(a) The role of science

The natural sciences have a crucial input to contemporary environmental law.

 

Many environmental problems cannot be perceived, let alone understood or addressed, without sophisticated scientific expertise: the depletion of stratospheric ozone, for example, was never likely to have been identified by simple intuition.

And science is Pmore than just a tool for the identification and resolution of environmental problems. Science has a central role in legitimating environmental law and policy: an appeal to the ‘facts’, as established by science, is used to pre-empt and undermine criticism. Although, as we shall see, there are inherent difficulties with relying on science in this area, the apparent objectivity and testability of science, seemingly above the fray of divided interests and political advantage, can be extremely attractive to politicians and to lawyers. The authority provided by an appeal to science extends of course to environmentalists.

Stephen Yearley, ‘Green Ambivalence About Science: Legal-Rational Authority and the Scientific Legitimation of a Social Movement’ (1992) 43 British Journal of Sociology 511, pp. 514–30

Is science an ideological friend of the Earth?

Despite the benefits, which ... flow from scientific conservation, many greens are uneasy about aligning themselves too closely with science. Such ambivalence about science systems in part from the role science and technology have played in bringing about our ecological problems. In some instances this connection is clear and direct.

Humans invented the CFCs which are threatening the ozone layer. Technological advance allowed humans to develop nuclear power, which in turn has brought us persistent environmental problems, such as those associated with the calamitous explosion at Chernobyl in 1986. It was scientists who developed the pesticides which in the last three decades have contaminated our food and our wildlife. In such cases we can trace environmental problems directly to specific products of science and technology. There is also a more diffuse connection: present-day industrial society is inseparable from the pollution caused by motor vehicles, power generation, and waste disposal. Many environmentalists are thus critical of technical progress and, at least, equivocal about science. Scientists may be viewed as active collaborators in our society’s ecological destructiveness.

Additionally, greens may distrust science because of the particular activities of sections of the scientific establishment: on account, for example, of scientists’ involvement in the development of nuclear power and weaponry or in the genetic engineering of food crops   and domesticated animals. Equally, greens may just be repelled by cases of the deliberate harming or mistreatment of laboratory animals.

In the face of these inherent problems with the scientific legitimating of   environmentalism, some of the ideologists of the movement have been attracted to versions of the green argument which are principally founded on non-scientific forms of authority. For example, it is possible to seek to underpin an ecological world view in conventionally religious or other spiritual ways. People can claim to gain knowledge of nature’s purposes and needs through this sort of inquiry ... But in secular Western societies these appeals can exercise only a limited attraction and the principal form of legitimating in the leading environmental organizations remains that of scientific expertise.

Legal-Rational Authority and the Sociology of the Science

Up to this point I have claimed that ‘establishment’ green groups embraced science early on and that there is evidence that – despite some ideological misgivings – the most radical groups are following suit. However, I wish to argue that the turn to science has been less straightforwardly beneficial than had been anticipated; in some respects the movement has even been confounded by science.

To understand the sociological implications of embracing science, we need to examine the special authority enjoyed by legal–rational forms of argument, an authority which has often been taken for granted by social scientists. Indeed, since social science itself appears to rest on this form of authority, to throw it into question might seem a self destructive pursuit. But in the last two decades there has been a re-assessment of this kind of authority among sociologists and philosophers of science who have studied decision making in what might be taken to be the temple of legal–rational thinking, natural science. What they have suggested is that the authority commonly associated with scientific beliefs is not as straightforward or as unequivocal as many people ... appear to have assumed. These sociologists and philosophers have argued that the public, policy makers, and more traditional philosophers of science have exaggerated the authority of science.

Characteristically, these analysts accepted an uncontentious definition of science ... What is radical is not their definition of science but their insistence that scientists’ judgments inevitably go beyond the evidence on which they are based, so that scientific authority cannot be justified by a simple appeal to its factual foundations ... Second, these analysts of science argue that even facts themselves are provisional. Factual claims cannot be legitimated by an unquestionable appeal to observation. Observations may themselves be affected by scientists’ assumptions or by their prior theoretical commitments.

Science as Unreliable Friend – Empirically

The first way in which science is an unreliable ally is a simply empirical one. Compared to social movements which appeal to an orthodoxy or to a charismatic leader, avowedly scientific movements face a number of pragmatic disadvantages. Scientists may not have an answer to every question. Similarly, they accept in principle that their knowledge is revocable and incomplete.

Science as Unreliable Friend – Epistemology

Up to this point we have examined ways in which in fact science may be a less good friend than conservationists might anticipate. It may not provide the answers on occasions when it would be politic to have them ... in some cases these deficiencies come close to endemic problems of scientific knowledge – to do with sciences as a way of knowing at all. Most nature conservationists would defend science as a form of knowledge by pointing to its observational basis and its methodic development. But ... the observational basis is open to discrepant interpretations. As soon as there arise competing and plausible accounts of what the observational facts are, then the basis which appears so secure becomes itself problematic. The empirical and provisional basis of scientific knowledge – its apparent strength – can readily be re-formulated as an uncertain basis.

Conclusion

To regard the green movement as profoundly anchored in science is surely correct. But, in practical terms, green campaigners have found it far harder to cash in on that scientific authority than might have been anticipated. In part, the explanation is philosophical. Scientific knowledge is inherently open to revision; it is intrinsically provisional. Particularly at the forefront of science, it is always possible that the truth is at odds with scientists’ current beliefs. Despite science’s cognitive power, it cannot offer transcendental support for particular substantive propositions. Moreover, the green movement is dependent on extra-scientific, moral considerations. Scientific studies indicating that the whale populations are declining to non-sustainable levels may well offer good grounds for not whaling. But when (as now may be the case for minke whales) populations begin to recover, science does not suffice to say whether hunting should be resumed.

The explanation is also sociological. The profession and practice of science mean that the research which greens desire or need may not be done. The social composition of green groups may not afford them the scientific expertise they require. Governments, firms, unions – even campaigners – may be far from disinterested in the uses they make of scientific information.

Finally, philosophical and sociological factors may overlap and interact. The social context of legal inquiries encourages the tendentious exploitation of science’s epistemological weaknesses; media conventions about ‘fairness’ encourage broadcasters to give ‘equal time’ to competing views even if the scientific credentials of those views are far from equal.

Many of the tensions that Yearley identifies prefigure the discussions below on scientific uncertainty and on the politics of environmental decision making. What Yearley  identifies as ‘ambivalence’ on the part of public interest groups is equally identifiable in other parts of environmental policy making and law; the difficulty of reconciling broader grounds for decision making with the continuing centrality of science (and related technical processes such as risk assessment and cost benefit assessment) is a recurring theme in contemporary environmental regulation.

The legacy of the ‘scientific paradigm’ is a type of ‘shallow’ environmentalism, primarily concerned with the exhaustion of natural resources and the implications of this for humankind (akin to the ‘second stage’ of environmental law identified by Emmenegger and Tschentscher. . Shallow environmentalists advocate so-called ‘environmental management’ (including methods such as risk assessment) and place their faith in technological advancement as a way out of environmental problems (‘cleaning up the earth’): the ‘planned management of nature’ according to Winter’s schema. Those adhering to ecological theories critique this branch of environmentalism as little more than a self-serving ideology legitimating the status quo- the ‘business as usual’ scenario.

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