Notice & Comment

Unbent Science, by Peter Strauss

Peter StraussA fraught area in recent times has been the unwillingness of the political executive to accept scientific findings generated in the civil service or in the academy in the face of controversy over regulatory matters on which they bear. Issues about “bending science” became particularly acute during the second Bush presidency, when political refusals to accept scientific findings and political controls over the manner in which some scientific issues were addressed disheartened the civil service, produced strident objections from the science community,[1] and made restoring the integrity of governmental science both a campaign issue for candidate Obama and a pursuit he made prominent in the first years of his presidency.[2]  Yet his presidency, too, was marked by prominent refusals to accept the scientific judgments of responsible civil servants on “hot” issues.[3]

It is important, in considering this matter, to distinguish between the strongly scientific activity of assessing a given risk and its uncertainties — an activity that might be influenced by a scientist’s personal preferences, but only at the cost of departure from her own professional norms — and the irreducibly political judgment how identified risks should be managed.  What former OIRA Administrator and noted administrative law scholar Cass Sunstein identified as “the most knowledgeable branch,”[4] the executive branch, develops both knowledge — that is the science side — and policies for acting on it.  The difficulties lie in the temptation to obscure or distort what is known in the service of what one wants to do.

Among the ABA’s recommendations in its bi-partisan Report to the President-Elect sent to both candidates before the election was this one concerning the integrity of the science underlying governmental rulemaking:

Fifth, we urge you to support the use of sound scientific risk assessment. Many  agencies are responsible for regulating risks to health, safety, or the environment. In order for them to implement these missions, they must have adequate expertise in state‑of‑the­ art risk and benefit assessment methods to support optimal risk management. Under the sponsorship of our Section, the ABA has developed a detailed recommendation containing principles for the use of risk assessment in the regulatory process.  The recommendation urges, for example, that risk assessments should be based on a careful analysis of the weight and quality of the scientific evidence, including such site‑specific  and substance‑specific information as may be available, as well as information about the range and likely distribution of risk. It also emphasizes that scientific findings and professional judgment in risk assessments should be explicitly distinguished from the policy judgments in risk management. In addition, the recommendation provides that the process should be kept as free as possible from political bias, and that risk assessments should explicitly acknowledge and explain the limitations of their methodology, data, and assumptions. As your incoming administration undertakes to familiarize itself with the challenges of risk assessment and risk management, we commend the ABA principles to its attention.

Developments since the election have underscored the stakes on this issue for the new administration and the American people.  One could point to a number of issues in this regard, for which, it is apparent, stakes are high.  Do E-cigarettes pose significant health hazards? Should the coal industry be revived, in the face of the risks it poses to public health, to the immediate environment in which it operates, and to rising sea levels? Should the new administration withdraw from executive commitments made to international efforts to reduce carbon emissions that virtually all scientists believe contribute to global warming threatening irreversible and substantial sea level rise, heightened extreme weather events, and other changes? Going forward, relatedly, how should the government balance its attention to energy initiatives that will, and those that will not, contribute to those emissions?  Or act in consideration of the degree to which activities consuming energy (e.g., automobile manufacture and use) contribute to those emissions?

The integrity of government science, then, in informing necessarily political decisions about appropriate government actions and commitments, and the importance of open governmental discussion and explanation of the risk management decisions based upon that science, remain vital concerns for the years ahead.  One may hope the ABA’s bipartisan recommendations in this respect will be accepted.

Peter L. Strauss is the Betts Professor of Law at Columbia Law School.

[1] See, e.g., Thomas McGarity and Wendy Wagner, Bending Science: How Special Interests Corrupt Public Health Research (2010); Kathryn Watts, Controlling Presidential Control, 114 Mich. L. Rev. 683, 693-98 (2016).

[2] Memorandum from Office of the Press Sec’y for the Heads of Exec. Dep’ts and Agencies (Mar. 9, 2009),; Exec. Order No. 13,497, 3 C.F.R 218 (2010).

[3] See, e.g., see Lisa Heinzerling, The FDA’s Plan B Fiasco: Lessons for Administrative Law, 102 Geo. L.J. 927 (2014); Watts, note 1 supra, at 698-700, 705, 707-716.

[4]  Cass R. Sunstein, The Most Knowledgeable Branch, 164 U. PA. L. REV. 1607, 1608‑11 (2016).

This is post is part of the Symposium on the ABA AdLaw Section’s 2016 Report to the President-Elect. An introduction to the symposium is here, and all of the posts are collected here. The views in this post, which expand upon the recommendations set forth in the Report, are the author’s own and do not necessarily reflect the views of the ABA AdLaw Section. The full Report is available here.

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