University of Illinois Law Review

Attempts to legislate solutions to environmental problems have been unsatisfactory in a number of important ways. Most commentators have attributed the environmental laws' poor track record to failures of agencies and the judiciary that frustrate the administration of the laws. In this article, however, Professor Wendy Wagner shifts the focus to those who write the laws establishing environmental policy, the members of Congress. As Professor Wagner explains, the development of effective environmental legislation poses unique scientific challenges to Congress. Rather than failing to appreciate the importance of scientific data to solving environmental problems, however, Congress has put too much emphasis on scientific data--operating under the mistaken belief that science, alone, can provide the solutions to environmental puzzles.

Professor Wagner begins by defining the limited usefulness of scientific findings to the development of effective environmental legislation and by explaining the reasons such limits exist. She then explains the reasons Congress has, to this point, failed to recognize these limits. The author examines the three prevailing models of congressional decisionmaking and explains that under each theory Congress has political reasons to overrely on science.

Professor Wagner explains that Congress's continued dependence on science imposes a variety of costs on society and acts as a significant hindrance to effective environmental legislation. To avoid these problems in the future, she offers two suggestions for reform. The first reform proposal is designed to attack the problem from within Congress by educating legislators as to the existence of scientific uncertainties and the problems created by these knowledge gaps. The second reform, to be pursued concurrently with the first, attempts to lessen the courts' insistence, in review of agency rulemakings, on scientific evidence, especially when such evidence is not available.

* Associate Professor, Case Western Reserve University School of Law. B.A. 1982, Hanover College; M.E.S. 1984, Yale School of Forestry and Environmental Studies; J.D. 1987, Yale Law School.