Anthem EnviroExperts

Review by Masahiro Matsuura, University of Tokyo

Reviewing approaches to the use of scientific evidence in regulatory governance, this book provides a new perspective on the role of science in global environmental policies.

Science and Risk Regulation in International Law, by Jacqueline Peel, Cambridge University Press, 416pp

In recent policy-making processes, ‘science’ is often a crucial element of controversy that has to be resolved by decision-makers and stakeholders, not just by scientific experts. For instance, environmental policy problems are subject to controversy over the interpretation of scientific analysis; Ozawa and Susskind (1985) characterized them as “science-intensive policy disputes.” Nowadays, the significance of science in public policy has increased as strategic actors in policy processes submit ‘scientific evidence’ in order to promote their own preferred policy choices.

The trend of stressing the need for evidence before implementing new policies and regulations, which started in the field of medicine, has extended to a wide range of policy areas.International law is not an exception. Science and Risk Regulation in International Law, a recent publication by Jacqueline Peel, raises a question about the appropriate use of scientific information in risk governance on the global scale. The first half of the book provides a thorough review of approaches to regulatory governance and the use of science. Instead of simply criticizing strategic uses of sound science by industries and political parties, the author characterizes sound science and precautionary principle as competing risk regulatory paradigms.

By applying this framework to the analysis of disputes over World Trade Organization’s Sanitary and Phytosanitary Measures Agreement, and other controversies in the field of international law, the author reframes the issue from these competing paradigms to the democratization of science. Both sound science and precautionary principle rely on scientific information. The problem lies in how such information is produced and used. By drawing on literature in science, technology and society studies (STS), the author argues for different ways of incorporating scientific information in global regulatory governance. While its conclusion could be a little more empirical by drawing on practices of environmental policy in North America, such as joint fact-finding and negotiated rulemaking, the book provides a new perspective on the role of science in global environmental and regulatory governance.

Reviewed by Matthias van Maasakkers, MIT

Douglas Kysar exposes a critical flaw in the dominant environmental law and policy paradigm of risk assessment and cost-benefit analysis.

Regulating from Nowhere: Environmental Law and the Search for Objectivity, by Douglas Kysar, Yale University Press, 336pp

Cost-benefit analysis has become virtually inescapable in environmental decision-making. Yet, as Douglas Kysar points out in this nuanced yet profound critique of that method and the narrow assumptions of welfare maximization it is based upon, there are plausible alternative frameworks to inform decision-making in the environmental realm. This book moves beyond mounting ethical, theoretical and practical arguments to show the shortcomings of cost-benefit analysis, although it probably is the most detailed and sustained development of those arguments since Mark Sagoff’s The Economy of the Earth.

The book is most effective when describing the ways in which precaution is not only a viable alternative, it is also already embedded in many environmental laws and activities in the United States and elsewhere. In the appendix, a draft Environmental Possibilities Act is included, showing Kysar’s commitment and ability to translate precautionary philosophies into specific, if hypothetical, policies. The Yale Law School professor moves between practical examples and French philosophers like Derrida. He produces a sustained argument that cost-benefit analysis restricts informed decision-making as opposed to enabling it because of increasingly untenable restrictions on standing and the assumption of impermeability of national boundaries. Important questions regarding legal standing that are emerging in relation to new biological and genetic manipulation technologies are described in detail.

This book is important not so much because of its current and compelling critique of cost-benefit analysis, but mainly because of its impassioned and effective reframing of the precautionary principle as an active and effective idea in environmental decision-making. Kysar reclaims the centrality of morality in environmental law, without ignoring the need for practical engagement.