Required Reading

Technology-based regulation compared to health-based regulation

Houck, O. 2003. Tales from a troubled marriage: Science and law in environmental policy. Science 302: 1926.

Babich, A. 2005. Too much science. Environmental Forum. May/June 2005, pages 36-45. Page 315

Two mercury cases: Comparing claims

New Jersey v. EPA Read the "Statement of Facts."

Cement Kiln Recycling Coalition v. EPA 255 F.3d 855. See the final question below before reading this case.

Supplemental Reading

If you are not already familiar with Overton Park, please look at it:

Citizens to Preserve Overton Park vs. Vople. 1971. 91 S.Ct. 814.

Questions for Class Discussion

The role of science generally in promulgating and challenging agency environmental rules

1. As you read the Houck and Babich articles, consider whether their position is consistent with what has actually happened with respect to mercury regulation under the Clean Air Act.

2. In many circumstances, a plaintiff challenging the substantive basis for a rule promulgated under a federal environmental statute will face an arbitrary and capricious standard of review. Explain how this sharply limits a plaintiff's ability to challenge an agency decision with respect to scientific information.

3. Distinguish between substantive and procedural challenges to a rule. Give examples of each. What is the typical standard of review for each?

4. Procedural challenges are often a model for substantive challenges, in the same way that rats are often used as a model of humans. Explain.

Which claims succeed and which fail?

There is a strong tradition in evolutionary biology of comparative biology. For example one might compare the Artic fox to a desert fox, enumerating similarities and differences, thereby coming to an understanding of how foxes adapt to the Artic and the desert. Along this vein, we will compare the various claims in NJ v. EPA and Cement Kiln, with a goal of understanding why---in a setting where science and technology are everywhere---some claims succeed and some fail.

5. Were any claims litigated in New Jersey v. EPA related to alleged deficiencies in the scientific conclusions of any mercury risk assessment? Explain.

6. Compare and contrast the various claims in Cement Kiln. Which claims pertained, in some way or another, to a mercury risk assessment? What were the major differences between the claims that succeeded versus those that failed? What does this comparison of claims tell us more generally about how environmental cases are actually litigated, and the role of science in this litigation?