The Reverse Science Charade
Citation: 33 ELR 10306
One of the most significant law review articles of the past decade in the area of environmental regulation is Wendy Wagner's "The Science Charade in Toxic Risk Reduction."1 The gist of the article is quite simple: "Agencies exaggerate the contributions made by science in setting toxic standards in order to avoid accountability for the underlying policy decisions."2 The article amply documents the existence of the phenomenon in compelling fashion. Besides being simple to grasp and fundamentally correct in many cases, the article's thesis seems not to have been articulated previously. Thus, the "science charade" concept has now found a currency in the field that rivals only Don Elliott's coining of the phrase "ossification" to describe how the proliferation of procedural requirements and judicial review have combined to rigidify and slow the rulemaking process.3 (As we'll see, these two concepts are related.)4
While there should be no dispute that the science charade as Wagner describes it has been pervasive and problematic, the novelty and catchiness of the phrase may be contributing to another, equally troublesome phenomenon: the "reverse science charade." This problem consists of agencies (or others) exaggerating the limitations of science, and risk analysis, in order to justify regulation on the basis of policy choices—choices that are commonly embodied in default assumptions and safety factors.
After briefly recapping the original concept of the science charade, this Article describes several examples of the reverse science charade in the environmental literature and in U.S. Environmental Protection Agency (EPA) practice. The Article then explains why the reverse science charade is problematic for public policy generally and risk analysis in particular. I also argue that it undercuts itself. Finally, I discuss how Justice Stephen Breyer's concurrence in Whitman v. American Trucking Ass'n5 may be a harbinger of bad news for proponents of the reverse science charade.