Environmental law stands out among all fields of law as the one most concerned with the physical world around us. Alas, environmental law seems puny and confused compared to its intended beneficiary, and we have made many mistakes as it has developed. However, the so-called “sound science” movement claims to be able to improve decisionmaking under environmental law. In this article, I focus on scientific-style peer review, one component of sound science, and examine whether, depending on how it is dosed out, it could be counterproductive for environmental law. I examine the quality of peer review using the Endangered Species Act (ESA) as a case study for water management. Part II provides some background on the “medicine,” peer review, as it is prescribed in regulatory contexts in general. Part III provides the diagnosis of the “patient,” the ESA, both a science- and policy-driven law. Part IV then describes the three conflicts that unrestrained doses of regulatory peer review pose for ESA decision making in particular, and for environmental law and water management generally. In Part V I continue to use the ESA as a model for exploring ways peer review could be incorporated into environmental laws so as to retain its value while minimizing its potential adverse effects. The optimal use of peer review in environmental law, I contend, is not all the way, all the time, but in the right dose at the right time.
J. B. Ruhl,
Prescribing the Right Dose of Peer Review for the Endangered Species Act,
83 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol83/iss2/6