Bar Bulletin

June, 2004

 BAR BULLETIN FOCUS
 June 15, 2004

Environmental Law  

CONFERENCE TACKLES CLEAN SCIENCE IN REGULATION
By Joanna B. Goger

On April 16, 2004, the University of Maryland School of Law and the Center for Progressive Regulation co-hosted the 2004 Ward, Kershaw Environmental Law Symposium. The topic of this year’s symposium Clean Science in Regulation was chosen because of growing concerns about the manipulation and misuse of science in the regulatory arena, particularly with respect to decisions affecting public health and the environment where scientific uncertainty has increasingly been used to rollback essential protections. The conference highlighted these abuses and provided an opportunity for collaboration on potential solutions. The University of Maryland School of Law’s Environmental Law Program, recently ranked fourth in the country among environmental law programs by U.S. News and World Report, hosts the conference annually with funds provided by the Baltimore law firm of Ward, Kershaw, P.A.

This year’s conference harnessed the expertise of several leading environmental law scholars, each of whom is a member scholar of the Center for Progressive Regulation (CPR), a non-profit research and educational organization of nearly 30 university-affiliated academics with expertise in the legal, economic and scientific issues related to health, safety and the environment. CPR launched its Clean Science in Regulation initiative last summer with the development of a set of Clean Science Principles designed as an affirmative response to the current politicization of science in regulation. The principles highlight the concepts of scientific freedom and independence, honesty and transparency and attempt to codify good practice norms for science in regulation.

Rena Steinzor, Professor of Law and Director of the Environmental Law Clinic at the University of Maryland School of Law and a founder of CPR, brought the group to Maryland for this year’s symposium to further the group’s Clean Science in Regulation project. In addition to assembling these CPR scholars, the conference also featured several prominent scientists from local institutions with expertise on the role of science in regulation, including Dr. Katherine Squibb, a professor and toxicologist at the University of Maryland School of Medicine, and Dr. Lynn Goldman, a professor and epidemiologist with the Johns Hopkins Bloomberg School of Public Health.

Together, the conference panelists plan to co-author a book centered on the Principles of Clean Science for publication in late 2004 or early 2005. The conference provided an opportunity for these scholars to assemble and collaborate on the principles and the contents of the book.

Several conference presentations highlighted some of the current tools used to manipulate and slow the process of developing and applying credible science in the regulatory context. Presenters explored the many ways that credible science is manipulated and attacked by industry, including examples from the tobacco industry. Two case studies highlighted some of these problems in practice. Dr. Jennifer Sass, a senior scientist at the Natural Resources Defense Council, discussed attempts by the Department of Defense and perchlorate manufacturers to discredit the science showing the serious public health effects associated with perchlorate. Perchlorate, which is a fuel used in munitions and rockets, has been detected in the groundwater at Aberdeen Proving Ground and other areas around the country and is known to inhibit the production of thyroid hormones necessary for normal fetal growth and development. Professor Rena Steinzor highlighted similar attempts by industry to discredit the science regarding the dangerous effects of mercury exposure on pregnant women and fetuses.

Several conference presenters also discussed the use of a recent appropriations rider, the Information Quality Act, to bring challenges to scientific information disseminated by federal agencies. The speakers discussed how this statute and others are currently being used to curtail the dissemination of information relevant to the protection of the environment and public health. The rider has also been used by the Office of Management and Budget as the basis for proposed peer review guidance that would require federal agencies to conduct peer review of influential scientific information they disseminate. The problems with applying such a process usually reserved for the review of science submitted to journals and grant proposals to science used in regulation, were topics of interest to many panelists.

The morning panels also explored the issue of scientific independence. Dr. Katherine Squibb outlined several situations that jeopardize scientific independence including the placement of restrictions on experimentation and the suppression of research results. Squibb emphasized that a loss of scientific independence can allow for manipulation of regulatory decisions and can cause scientific uncertainty to become a target of controversy rather than a basis for better science. Many scientists that deal with regulatory issues have been targets of such restrictions and suppression in recent years.

To highlight some of the mistaken conceptions of science in the tort context, Carl Cranor, Professor of Philosophy at the University of California Riverside, explored how the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals and cases applying Daubert have perpetuated the inaccurate application of good scientific principles by requiring epidemiological studies and by categorically excluding scientific evidence developed from use of such techniques as animal studies and human case studies.

To learn more about the University of Maryland’s Environmental Law Program, visit www.law.umaryland/environment. For more information about the Center for Progressive Regulation and its Clean Science project, visit CPR’s website, www.progressiveregulation.org.

Joanna B. Goger is on the adjunct faculty at the University of Maryland School of Law and is the chief policy analyst for the Center for Progressive Regulation. She also participated as a panelist at this year’s symposium.

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