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This article was published in 57 Kansas Law Review 251 (2009)

Abstract

Proponents of environmental regulation have catalogued various strategies used by takeholders to delay or weaken regulatory efforts, including (1) manufacturing or magnifying uncertainty; (2) demanding “sound science” (and thereby imposing unreasonable standards of evidence); and (3) data quality initiatives that permit deconstruction of credible studies by highlighting inevitable assumptions, funding sources, and areas for further research. Such strategies can be termed “idealizations” of science insofar as they rely on an unrealistic image of good science as somehow capable of avoiding tentative conclusions, institutional interests, consensual assumptions, and the need for further research.

The question remains, however, when does an argument based on scientific uncertainty reflect a valid concern, and when is such an argument merely strategic?

This Article is based on a study that was structured to identify whether and how arguments and challenges based on idealizations of science were used in the initial (pre-litigation) stages of several Philadelphia-area water quality controversies. The purpose of this Article is to describe the results of our study, including our sense that idealized arguments, at least in the early stages of TMDL disputes, are not very effective.

Disciplines

Environmental Law | Water Law

Date of this Version

May 2009

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