William H. Rodgers, Jr., Giving Voice to Rachel Carson: Putting Science into Environmental Law, 28 J. Land Use & Envtl. L. 61 (2012), https://digitalcommons.law.uw.edu/faculty-articles/236
Journal of Land Use and Environmental Law
Rachel Carson, science, U.S. Supreme Court
Certainly, the most pressing issue of modern times is to develop a body of environmental law (that includes climate change) that is highly responsive to science. Without demeaning the many distinctions between the exercise of science and the practice of law, let me cut to the chase and declare that science is mostly about the “pursuit of truth” and law is mostly about “who wins.” Anybody who doubts this proposition should examine the radical differences between the “Supreme Court of Science” in the United States and the Supreme Court of Law.
The Supreme Court of Science, the National Research Council, is not even an “agency” of the United States. It is a mad-cap collective of boards, councils, committees, and advisors. It has its own administrative structure, of course, but in behavior, output, and reputation, it does display a decidedly non-structured “pursuit-of-truth” personality.
The Supreme Court of Law hardly could be more different. In its practices of secrecy, isolation, choice of cases, in-house politicking, and selection of members, this club is all about control. The discipline of the legal system is quite remarkable when compared to the non-discipline of the scientific system. Instantly, upon utterance, all courts must fall in line with the latest word or directive. The same is true for attorneys who as officers of the court must implement that which is said without objection, quibbling, or scorn.
Of the two, the Supreme Court of Science and the Supreme Court of Law, the one that looks like the “clique of geniuses” at work in the Planet of the Apes is the Supreme Court of Law. They are “Keepers of the Word.” Thus, in ironic fashion, the rise of environmentalism has brought with it the rise of science in law. The rise of science has buoyed hopes and expectations for addressing the “pressure cooker” of climate change.
Yet, typical of the times, the largest obstacle to fulfillment of these higher ends is the strongest voice on today’s high court—a bullying, intimidating presence that has no discernible interest in the sweetest corners of science and no obvious commitment to its values. So far, the “best available science” has been shouted down, done away with by the snarling intemperance of the moment.
Can we do better? Almost certainly, we can. The district courts are doing much better. In the longer run, the “pursuit of truth” is an odds-on favorite to defeat “the pursuit of advantage.” Lawyers have been attempting to fix the science now for several centuries, but they have come up short. Rachel Carson will again have her day.