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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — February 2015


Communicating Scientific Uncertainty: A Lawyer’s Perspective

by Michael Traynor

Scientific uncertainty is both inevitable and the source of communication challenges: science, law, and journalism each have different views of and uses for uncertainty. When dealing with uncertainty on policy issues such as climate change, these differing perspectives can lead to misunderstanding, controversy, and gridlock. The author offers his reflections on the legal process and legal ethics as applied to issues of scientific uncertainty. He concludes that lawyers can strengthen their ability to serve clients and the public if they enhance their understanding of scientific uncertainty and obstacles to communication and learn ways to communicate more effectively.

Environmental Assessments: Guidance on Best Practice Principles

by Ron Deverman, P.E. Hudson, Karen Johnson, Ronald E. Lamb, Daniel R. Mandelker, Stephen Pyle, and Dr. Robert Senner

In response to a 2011 solicitation by the Council on Environmental Quality, the National Association of Environmental Professionals developed best practice principles (BPPs) for preparing effective environmental assessments (EAs) under NEPA. After extensive survey research and literature review, the Association’s report identified seven Priority One BPPs as focus areas for improving EAs. These proposed BPPs are intended to be applicable across all federal agencies that prepare EAs and are designed to improve the quality, usefulness, and timeliness of EAs while reducing the risk of challenge.

SLAPP 2.0: Second Generation of Issues Related to Strategic Lawsuits Against Public Participation

by Lori Potter and W. Cory Haller

This Article updates a July 2001 ELR News & Analysis article on Strategic Lawsuits Against Public Participation (SLAPPs) and common-law and statutory defenses against them. Since that survey, a dozen additional jurisdictions have enacted statutes providing some degree of protection for SLAPP defendants, and courts have continued to apply these statutes as well as common-law and constitutional (Petition Clause) defenses. In general, while “second-generation” issues have added some wrinkles to SLAPP practice, the results remain the same: almost all SLAPPs are ultimately dismissed.


Acts of God, War, and Third Parties: The Previously Overlooked CERCLA Defenses

by Frank Leone and Mark A. Miller

In a recent decision, a federal appeals court for the first time relied on the statutory act of war defense to dismiss a CERCLA claim, one that sought recovery of the costs of remediating asbestos and other hazardous substances that were released by the September 11, 2001, attack on the World Trade Center. This Comment explores CERCLA's three statutory defenses, the difficulties CERCLA defendants have faced in trying to assert them, and whether In re September 11 will result in more successful assertions of these defenses in the future.

Here Be Dragons: Legal Threats to EPA’s Proposed Existing Source Performance Standards for Electric Generating Units

by Eric Groten

A 104-page “Legal Memorandum” accompanying EPA’s proposal of §111(d) Existing Source Performance Standards for Electric Generating Units under the Clean Air Act charts the legal waters the Agency will have to traverse if it adopts rules anything like those it proposed. The need for so comprehensive a map arises because EPA proposes a voyage far away from where §111(d) has ever sailed. But unlike the 16th-century explorers who ignored the dragon warnings at the edges of their maps, here EPA actually will encounter the identified dangers, which are so great as to reduce to near zero EPA’s prospects for safe crossing to its intended destination.


The Ethics of Communicating Scientific Uncertainty

by Jay Austin, George Gray, Jim Hilbert, and David Poulson

Scientific uncertainty is inevitable in many public policy debates, especially in the environmental and public health arena. Scientists, lawyers, and media professionals develop and communicate the data, information, and analysis that inform public decisionmaking. But each of these professions regards and communicates scientific uncertainty differently, in part due to varying professional norms and ethical standards. On September 12, 2014, the Environmental Law Institute hosted a webinar to examine how the fields of science, law, and journalism each address scientific uncertainty, and how core professional norms shape the way they communicate it. Here, we present a transcript of the event, which has been edited for style, clarity, and space considerations.