Resolving Conflict in Non-Ideal, Complex Systems: Solutions for the Law-Science Breakdown in Environmental and Natural Resource Law
In 2006, the U.S. Supreme Court decided a consolidated case concerning the scope of the U.S. Army Corps of Engineers' jurisdiction to require permits for dredge and fill of wetlands under section 404 of the Clean Water Act, issuing a plurality, two concurrences, and two dissents. Each opinion has a solid legal foundation, yet none truly makes sense if the science of the resource in question is considered. The opinions in Rapanos v. United States illuminate the struggle at the law-science interface. The problem is not due to either a failure in legal reasoning or a failure in scientific methodology if each is viewed in isolation. Instead, the difficulty lies in the complexity that results when the human system is overlain on the environment and in our failure to account for that complexity in the methods that govern natural resources dispute resolution. The primary purpose of this article is to shift the dialogue from its current bifurcated focus on better science or better laws to a focus on the need for a new, integrated approach at the law-science interface. The article concludes by recommending one such approach, based on the experience of the Colorado water courts, that would involve the designation of specialized federal district courts with scientists on staff.
48 Nat. Resources J. 257 (2008)