Law of Science and Sustainability: A Framework for Dialog

By Daniel J. Rohlf

“Paper or plastic?”

We’ve probably all heard this familiar question at the grocery store and silently launched into the mental debate it provokes (hopefully only on the rare occasion when we forget our reusable bags!). The City of San Francisco moved the paper versus plastic debate into the legal arena in 2007 by banning banned plastic shopping bags altogether, citing their petroleum origins and the fact that they are not readily recyclable and do not decompose. On the other hand, critics of this approach note that making paper bags requires cutting trees as well as using many harmful chemicals and about 50 times more water than in manufacturing their plastic counterparts. How should we make tradeoffs between overflowing landfills and clearcuts, oil spills and water pollution? And who should make such choices?

The humble grocery bag thus provides an example of a fundamental challenge in moving toward a more sustainable society. Even when people agree on a general policy goal – in this case reducing the environmental footprint of an everyday activity – achieving that policy aim first requires blazing a pathway through a tangle of scientific and legal questions.

At a larger scale, many crucial initiatives toward creating a more sustainable society raise similar issues at the intersec- tion of law and science. For example, if we wish to promote or even require increased production of “renewable” energy, what exactly should lawmakers do? Such a question raises both technical and legal issues that are much more challenging than they might first appear. Congress and state legislatures have passed laws to mandate or encourage domestic production of biofuels as an alternative to petroleum, but recent sophisticated assess- ments of this “renewable” resource indicate that its ability to reduce greenhouse gas emissions and provide other environmental benefits may be minimal when considering lifecycle impacts such as land use changes, fertilizer input, transportation and refining. At the same time, biofuels advocates question these studies’ reliability, point to the economic and national security benefits of finding alternatives to oil, and argue that land now used to grow biofuel crops would be farmed and fertilized regardless. How, then, should we decide whether biofu- els are indeed a more sustainable energy option, and by what criteria?

Scientific expertise alone cannot answer such a question. The net carbon impact of biofuels often depends on which assumptions and methodologies are used to make the calculations, and there is no technical formula for weighing tradeoffs between decreased reliance on fossil fuel imports and increases in the rate of decline of wildlife habitat n the United States due to more farming activity. Ultimately, therefore, decision-makers must integrate scientific knowledge with policy acumen to put in place economic and regulatory structures capable of creating a technically and socially optimal mix of energy resources. The same need for integration holds true in developing workable and acceptable approaches to greenhouse gas reductions, using and protecting natural resources, and even encouraging “green” businesses.

Society’s success in fostering sustainability thus depends to a significant degree on our ability to understand the interactions between science, law, and policy, as well as on successfully engaging decision-makers, regulators, the business community, and the public in a dialog about the choices and tradeoffs involved in moving toward a more sustainable economy and a more sustainable relationship between people and the planet. In order to foster such a dialog, it is useful to have a framework for understanding how law and science fit together. By using the following three-part framework for integrating science and law, those interested in advancing steps toward sustainability that are sound from both technical and public policy stand points can maximize opportunities for success.

Standards. A standard sets forth a measuring stick or threshold that governs a type of conduct or a set of decisions. For example, many proponents of sustainable agricultural practices often advocate growing and consuming organic crops. But what does it mean for a something to meet this standard – for example, what makes an apple “organic”?

In order to be useful in actually promoting organic practices and in providing the consumer products that are in fact organic, a standard must be both meaningful and enforceable. In other words, an organic apple should meet a minimum set of criteria for absence of manufactured fertilizers and pesticides, not simply what an individual grower decides can suffice as organic. Toward this end, the federal government has stepped in to regulate use of the term “organic” in fruits, vegetables, and processed foods. Significantly, however, regulations governing organic labeling illustrate that setting legal standards is rarely a purely technical, black and white exercise. For example, the U.S. Department of Agriculture allows up to 5% of foods labeled with the organic seal to contain conventional ingredients if those constituents are not readily available in organic form. Additionally, current regulations allow a product such as applesauce to be labeled “Made with Organic Apples” even though it contains up to 30% non-organic corn sugar or other ingredients in addition to organic apples.

Developing legal standards that govern many aspects of sustainability, therefore, involves making policy choices about where to draw specific technically-based lines in the sand. The USDA could have outlawed all non-organic ingredients from products using the term organic, or it could have allowed products with an even greater percentage of non-organic ingredients to use the organic label; the agency simply made a policy call as to how “pure” it believed a product should be to qualify as organic. It is important to recognize that establishing legal standards almost always involves making these sorts of important value choices.

Regulators may not always explicitly acknowledge that standards involve making both technical and policy judgments. This is because regulatory decisions typically get more deference from affected parties, the public, and reviewing courts if everyone believes that only scientific experts can make important standards decisions. Therefore, carefully identifying the policy elements of a standard, who makes those value-based decisions, and the process through which those decisions are made can help an interested party understand – and participate in – the policy choices that go into the process of formulating the thresholds that govern the sustainability of a wide variety of activities.

Science Process. Even determinations that are primarily scientific in nature still raise a host of important issues at the law/ science intersection. For example, many landowners and a host of other entities are interest in selling carbon credits. Carbon offsets are a key element of most regulatory strategies to tackle climate change, and may allow society to efficiently reduce greenhouse gas emissions at relatively low cost by facilitating trades between emissions producers and entities whose actions can capture or store carbon. However, carbon offsets aid in the fight against climate change only to the extent that the amount of carbon credits on paper equals the actual amount of carbon captured or carbon releases prevented as the result of the credited action. Determining whether this is indeed the case for a given carbon credit or class of credits requires scientific calculations. However, significant policy choices are embedded in the manner in which we choose carry out these scientific calculations. For instance, who should calcu- late the carbon credits associated with a given activity – the entity carrying out action? A third party certification entity? A regulatory agency? What methodology should the scientists cal- culating carbon credits employ and what assumptions can they make in the face of uncertainties? Should scientists’ conclusions be subject to peer review? Should their findings be subject to appeal by those who disagree with the answers?

These sorts of questions – sorting out who makes scientific de-terminations, the methods used to make these determinations, and what happens in the case of disputes about them – raise issues of science process. Designing a workable science process for a given set of determinations nearly always involves a mix of science calls and value judgments. For example, subjecting a regulator’s decisions about carbon credits to scientific peer review would almost certainly produce a more accurate system for including carbon offsets as part of a greenhouse gas reduction strategy. However, peer review is often both time-consuming and expensive. Is the marginal increase in accuracy of carbon crdit calculations worth this extra time and cost? Answering this question requires a value-based science process decision.

Millions of dollars, as well as the effectiveness of efforts to combat climate change, hinge on the answers to such science process questions involving carbon credit schemes. The same holds true for many other science process ises in other contexts affecting sustainability. Effective participants in these sorts of decisions will understand the mix of science and policy issues in designing and implementing science processes.

Implementation. This is perhaps the most obvious – but ironically often most overlooked – element of a law/science framework. At its core, the element of the framework is based on a very simple idea: even brilliantly designed standards and effective science processes to carry out those standards will be ineffective if they are not faithfully implemented. For example, a state or local government may decide to provide generous tax breaks to encourage use of green building techniques. However, unless that jurisdiction also invests in inspectors or other methods of ensuring that builders receiving tax breaks actually employ the green techniques they are supposed to use, it is likely that the tax incentives will fall short of producing their intended energy efficiency benefits when careless or unscrupulous builders cut corners.

In addition to enforcement, effective implementation also involves monitoring and adaptation. For instance, a government that provides tax breaks for green buildings should continually monitor results to determine whether targeted strategies produce expected energy saving over time, and adjust its program to account for new information and advances in technology.

Finally, implementation considerations should also inform decisions about standards and science process. A regulatory scheme may include sophisticated standards and a meticulously-designed science process, but if these standards and process are too complicated or too expensive to successfully implement over time in the real world, they will merely be paper tigers.

Such implementation strategies are not conceptually difficult, but they require qualities sometimes in short supply: planning, attention to detail, follow-through, willingness to change or make adjustments, and self evaluation. A challenge indeed.

Conclusion. Law and science both play crucial roles in efforts to craft a more sustainable society, but perhaps most important in making the decisions and tradeoffs involved in this transition is an understanding of the ways in which these two disciplines interact. Using a simple but effective framework to understand the integration of science and law can assist any interested party in participating making the choices that shape our world.

Daniel J. Rohlf is a professor of law at Lewis and Clark Law School.
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