1 / 19

SCREENING KNOWLEDGE

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

kaoru
Download Presentation

SCREENING KNOWLEDGE

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. SCREENING KNOWLEDGE From harm to risk

  2. What does the move from harm to risk tell us about changes in cultural values?

  3. 3 phases in legal normsinfluenced 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

  4. Phase 1SOCIAL REGULATION • Proactively protect public health, safety, and environment • Diverse industries • Authorized to enact more burdensome regulations than predecessors

  5. PREVENTIVE POLICYMAKING • Policy must be made • On what basis? Mathematical models and extrapolation from animal studies • Public exposure of knowledge production process • Agency vulnerability

  6. 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

  7. PUBLIC INTEREST GROUPS • Activists also sued agencies on grounds agencies were not effective

  8. “substantive review of mathematical and scientific evidence by technically illiterate judges is dangerously unreliable” Judge David Bazelon

  9. 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

  10. 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

  11. Policymaking is normative, not factual Policymaking is about judgments about what should or ought to happen

  12. 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

  13. HARD LOOK CASE • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Unanimous Supreme Courtrejected “Monday a.m. quarterbacking” • But affirmed judges could scrutinize substantive record and ask agencies to reconsider

  14. 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”

  15. How to enforce the Clean Air Act (1970)

  16. What cultural values are at work in the move towards deregulation? What risks are worth regulating? Who gets to decide?

  17. 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

  18. “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

  19. 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

More Related