SCREENING KNOWLEDGE
From harm to risk
What does the move from harm
to risk tell us about changes in
cultural values?
3 phases in legal norms
influenced by national politics
• 1970s expansion of judicial power to hold
regulatory agencies accountable
• Early 1980s limits on administrative
discretion took form of deregulation
• Late 1980s return to judicial deference
Phase 1
SOCIAL REGULATION
• Proactively protect public health, safety,
and environment
• Diverse industries
• Authorized to enact more burdensome
regulations than predecessors
PREVENTIVE
POLICYMAKING
• Policy must be made
• On what basis? Mathematical models
and extrapolation from animal studies
• Public exposure of knowledge production
process
• Agency vulnerability
INDUSTRY RESPONSE
• Risk assessments were vulnerable or at
least open to interpretation
• Opposed mathematical models
• Opposed animal studies on grounds that
MTDs produced false positives
PUBLIC INTEREST GROUPS
• Activists also sued agencies on grounds
agencies were not effective
“substantive review of
mathematical and scientific
evidence by technically illiterate
judges is dangerously
unreliable”
Judge David Bazelon
HARD LOOK DOCTRINE
•
•
•
•
•
•
•
•
Assumptions spelled out
Inconsistencies explained
Methodologies disclosed
Contradictions rebutted
References solidly grounded
Guesswork eliminated
Conclusions supported
In a manner capable of judicial understanding
Problems with the “hard look”
• In practice the boundary between
procedure and substance is hard to find
• Courts had no authority to impose
procedures on agencies beyond
Constitutional due process or
Congressional mandates
• Effects: agencies more careful but also
slower and indecisive
Policymaking is normative,
not factual
Policymaking is about judgments
about what should or ought to
happen
1970s SCIENCE POLICY
PARADIGM CASES
• 1. Decisions could be made on basis of
suggestive not conclusive evidence
• 2. Interpretations could be valid even if
not backed by expert consensus
• 3. Within purview of agency to select
among disputed data or methodologies
HARD LOOK CASE
• Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council
• Unanimous Supreme Court rejected
“Monday a.m. quarterbacking”
• But affirmed judges could scrutinize
substantive record and ask agencies to
reconsider
SCIENCE POLICY
PARADIGM CASE
• Ethyl Corp. v. EPA
• Agencies could rely on suggestive—not
yet conclusive--evidence
• Less than certain knowledge could justify
action against extreme risks
• Opens door to accusations of “bad
science” and “too much power”
• How to enforce the Clean Air Act (1970)
What cultural values are at work
in the move towards
deregulation?
What risks are worth regulating?
Who gets to decide?
RETURN TO DEFERENCE
• Baltimore Gas and Electric v. NRDC
• Capstone citizen suit against nuclear
power was about longterm storage
• Supreme Court deferred to regulatory
agency (NRC) and did not allow the
“zero-release” assumption to be
questioned by NRDC
“our court now applies [hard
look] not to tell an agency that
its methodology or procedures
were wrong…but to tell an
agency that it has not sufficiently
explained why it chose the
course that it did…. [and] its
departure from prior precedent”
Judge Patricia Wald
TURN TO FORMALISM
• Vermont Yankee, Baltimore Gas, Chevron
deferred to agencies
• At a time when credibility was weak
• Formalism demonstrated in NRDC v. EPA,
Public Citizen v. Young
• No court-agency partnership as in “hard look”
era
• Legislators would not get guidance from courts