Thinking legally, about Science

An interesting paper, by Jonathan Remy Nash, which hypothesizes that the precautionary principle may have legal standing, based on current case law. Not at all an insignificant issue, considering the refusal of the present US administration to give adequate credence to environmental concerns, and that many environmental issues will therefore be tried in the courts. Recent Scientific evidence, however, has established that human-generated Global Warming is having a detrimental effect on the climate, so the precautionary principle hardly has to be invoked for that issue. There also may be applicability to nano-technology and genetic engineering developments, once the risks of those technologies are more fully understood.

Presumably, though the lack of concern about the environment will be a short state of affairs, until the next administration. More than 2 out 3 Americans believe GWB isn’t doing enough to address Global Warming, so almost certainly the next administration will be more responsive on this issue. (See “Americans Chide Bush on Climate Change Efforts” August 08, 2007 – Angus Reid Global Monitor for more)

But what if it isn’t? We may be back to relying on the courts…

One item I noticed on the abstract, and I question: “Its application would be limited, and could further be limited to cases brought by a sovereign.” Why limit it thus? By sovereign, presumably it is meant state, as the case mention is Massachusetts v. EPA? I’m not sure, and it appears a subscription is required to get at the paper itself, so I can’t really read it and find out.  Too bad, and all the more reason to make such papers available.

One of the things I like very much about this, (at least as it is expressed in the abstract) is that the linkage between science and the law is seen as a two way street: .”importation and application of the precautionary principle to questions of standing will provide a logical and stable setting in which the precautionary principle might develop and flourish.” Further more, the application of this principle is seen as guiding future evolution of case law: “precautionary-based standing would be available to address future environmental crises where scientific understanding that the threat is real may lag.”

Seems like really cutting edge cross-disciplinary and systems-based thinking.

Hat Tip: University of Chicago Law School Faculty Blog

Standing and the Precautionary Principle

Abstract:

In Massachusetts v. EPA, the Supreme Court upheld Massachusetts’ standing to challenge EPA’s refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputed whether the science of global warming was sufficient to establish standing. Absent from both opinions was discussion of whether there would be standing if the science were uncertain but the potential harms large and irreversible. This Paper argues that “precautionary-based standing” – grounded upon a fundamental principle of environmental law, the precautionary principle – should apply in such cases.

Precautionary-based standing would not upset existing standing doctrine. First, its application would be limited, and could further be limited to cases brought by a sovereign. Second, there already are less stringent standing requirements in areas where society has deemed precaution to be appropriate. Third, the catastrophic and uncertain nature of the injury in a precautionary-based standing would satisfy Article III.

The argument here is important in several ways. First, reliance upon the precautionary principle might attract the support of people who question the certainty of the science but recognize the large risks associated with global warming. Second, precautionary-based standing would be available to address future environmental crises where scientific understanding that the threat is real may lag. Third, precautionary-based standing eventually may generate a broader evolution of standing jurisprudence. Fourth, importation and application of the precautionary principle to questions of standing will provide a logical and stable setting in which the precautionary principle might develop and flourish.

JONATHAN REMY NASH
University of Chicago Law School
1111 E. 60th St.
Chicago, IL 60637
United States

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Thinking legally, about Science

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