Environmental law, Euro-style
Eric Jantz makes some important points in his opinion piece (HCN, 8/16/10). The legal/regulatory framework surrounding our environmental laws truly is "dense and arcane," and it is difficult for individuals to participate. The deference courts give to agency expertise is sometimes unfounded, and local experience should not be ignored. But Jantz's suggestion to reduce scientific and technical input would not "strengthen judges" or correct these shortcomings.
It is not good science but the adversarial dialectic of the legal system that has generated the "cult of the technocrat." And many hired guns charge almost as much as the attorneys. Is it any wonder that "the people in (affected) communities" have great difficulty making their voices heard?
But there are alternatives. In Europe, such questions are typically settled by technical bodies appointed for that purpose. More in line with American-style democracy, a court could convene an independent panel of experts, and ask it to investigate and deliver a consensus report. At best, the court would acquire a clear and definitive set of facts upon which to base a decision. At worst, it would gain a more neutral, rigorous and comprehensive understanding of the issues than from partisan analyses. Collaborative stakeholder processes, properly structured and focused, can provide proper local input.
To those who would protest the added cost and time, remember the prohibitive legal fees and years that environmental issues consume as they wend their tortuous path through today's systems. For an imperiled ecology or polluted community, that is not acceptable. And even then, as Jantz confirms, the current process has rarely produced substantive, realistic or sustainable protections for the environment or the people and creatures living in it.
Santa Fe, New Mexico