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EPA's Lag in Responding to Scientific Advancements: A Reply to Conrad

June 2004

Citation: ELR 10497

Author: Wendy E. Wagner

Responding to the latest scientific advancements is not a simple matter for the U.S. Environmental Protection Agency (EPA). A number of factors--such as the extent to which the new information intersects with EPA's statutory mission, as well as the quality of the research--necessarily impact EPA's response to this new science. Because statutory requirements often direct EPA to err on the side of safety, scientific developments that indicate the possibility of unexpected, serious harms are of more immediate interest to regulators than studies that suggest that greater concentrations of pollutants can be tolerated. Similarly, the fact that EPA does not immediately embrace the latest model or scientific study could be to its scientific credit in some regulatory settings. Studies produced under funding conditions that do not ensure full independence of the researchers, for example, might need to undergo added peer review and sometimes even replication before the studies can be accepted as reliable for purposes of regulation.

In a recent article on the subject, The Reverse Science Charade, James Conrad generally ignores these nuances in leveling vigorous charges that EPA has dallied unduly in its acceptance of scientific developments offered by private parties. Specifically, Conrad argues that private research, generally taking the form of human subjects research or innovative models that are more sensitive to differing mechanisms of carcinogenesis and toxicity, are underappreciated by EPA. Despite his numerous case studies and specific indictments, however, Conrad fails to substantiate the reliability of this new research, to account for differences in statutory mandates that affect how quickly EPA should incorporate the new science into regulation, or to put the problem he identifies within the larger context of regulatory science.

Wendy Wagner is the Joe A. Worsham Centennial Professor at the University of Texas School of Law in Austin, Texas. Before joining the Texas faculty, Wagner was a professor at Case Western Reserve University School of Law and a visiting professor at Columbia Law School and the Vanderbilt School of Law. Wagner received a Master's degree in environmental studies from the Yale School of Forestry and Environmental Studies and a law degree from Yale Law School. At the University of Texas, Wagner teaches courses on torts, environmental law, and law and science. Her research focuses on the law-science interface in environmental law and her articles have appeared in numerous journals, including the Columbia, Cornell, Duke, Illinois, Texas, Wisconsin, and Yale Law Reviews. She can be reached at WWagner@mail.law.utexas.edu.

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