Getting the science right in environmental laws

Imagine a fisheries scientist receiving a call from a reporter asking for comment on whether her research findings mean the fisheries law needs to be changed. Imagine an environmental lawyer giving testimony to a Parliamentary Committee and being asked what science backs up the legal reforms he proposes. In both cases, the scientist and the lawyer need to speak an unfamiliar language so that legal processes can be informed by science.

That’s why we decided to bring together authors with diverse backgrounds in environmental law, Indigenous law, and applied environmental science to explore the challenges of and opportunities for effectively integrating science into environmental law. This article bridges the gap between those two professional worlds by exploring one specific type of interaction of law and science: integration of scientific evidence and principles when implementing or revising environmental legislation.

Environmental laws protect natural resources — from fish to grizzly bears, from clean air to clean water. Understanding risks to these resources is the domain of natural scientists. Yet, environmental laws can be remarkably disconnected from scientific evidence.

Linking environmental law and science is challenging due to fundamental barriers between the fields. We discuss five types of challenges: time frame, legal comprehension, standards of proof, communication, and ethical obligations. Scientists often work patiently for months to years before their findings are publicized. In contrast, lawyers may need evidence within days or weeks. It can also be challenging for scientists to understand the legal complexity of different jurisdictions (e.g., federal vs. provincial vs. Indigenous). Lawyers may not understand the scientific burden of proof and question why a scientist is reluctant to give an opinion. Lawyers and scientists also use different standards of proof — scientists are used to looking for statistical differences in the data using a specific threshold, whereas a lawyer may need to show proof that one outcome is more probable than others.

As different outputs of science may feed into different parts of the policy cycle, we identify and examine different ways that scientists can take part in legal development: from conducting “actionable research” that guides management decisions to writing opinion editorials and open letters, from quantifying and communicating the impact of human activities on the environment to analyzing how well a law actually worked. Doing science this way can be very different than typical scientific pursuits.

There is no translation dictionary between science and law, and when the call comes to bridge the gap, there is little time for either party to prepare. But bridging that science–law gap is essential to effectively conserve and manage the natural world. We conclude that each field has a lot to learn from the other and that addressing the barriers at the science–law interface requires more collaboration and bidirectional learning.

Read the full paper — Towards linking environmental law and science by Jonathan W. Moore, Linda Nowlan, Martin Olszynski, Aerin L. Jacob, Brett Favaro, Lynda Collins, G.L. Terri-Lynn Williams-Davidson and Jill Weitz on the FACETS website.