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Published online by Cambridge University Press: 20 January 2017
1 M. Lee, EU Environmental Law: Challenges, Change, and Decision–Making. Oxford: Hart, 2005.
2 M. Lee, EU Environmental Law, Governance and Decision–Making, Oxford: Hart Publishing, Second Edition, 2014 (hereafter “EU Environmental Law”), Preface.
3 The post–modern approach is characterized by the rejection of, inter alia, universal rationality, objectivity, reductionism, and absolutes. Instead, it emphasizes the social construction of reality, social subjectivism, holism, and relativism. In this view, any knowledge, including scientific knowledge, reflects specific interests and serves as an instrument for domination. “The theme that underlies all Foucault's work is the relationship between power and knowledge, and how the former is used to control and define the latter. What authorities claim as ‘scientific knowledge’ are really just means of social control.” Philip Stokes, Philosophy: 100 Essential Thinkers (London: Arcturus, 2004), at p. 157 (discussing the theories of Michel Foucault). See also Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–1979, Translated by Graham Burchell (London: Palgrave Macmillan, 2008). Put differently, science, law, and other domains of influence are instruments to effect the human “will to power.” Friedrich Nietzsche, Beyond Good and Evil (1886), trans. Walter Kaufmann, New York: Vintage Books, 1966. Cf. Gary Minda. Postmodern Legal Movements: Law and Jurisprudence at Century's End. New York: New York University Press, 1995. M. Foucault, Nietzsche, Freud, Marx (1964). Paul Ricoeur called these three thinkers masters of the “school of suspicion,” because they look for concealed motives, such the will to power (Nietzsche), sexual desire (Freud), and class interest (Marx). P. Ricoeur, Freud and Philosophy, translated by D. Savage, New Haven: Yale University Press, 1970, p. 32.
4 Abbot opined that “[h]er analysis of the challenges [the EU] faces and the extent to which it has responded is both innovative and stimulating.” C. Abbot. Book review of Maria Lee, EU Environmental Law: Challenges, Change, and Decision-Making (2005), 69(5) Modern Law Review 2006, 855-868.
5 EU Environmental Law, Preface
6 For a discussion of practical issues arising under the REACH Regulation, see, for example, Bergkamp, Lucas (editor), The European Union REACH Regulation for Chemicals, Oxford: Oxford University Press, 2013.Google Scholar
7 See, for instance D. Black, The Theory of Committees and Elections, Cambridge: Cambridge University Press. 1958. K.J. Arrow, Social Choice and Individual Values. Second Edition, Wiley, New York, 1963.
8 Niskanen, W.A. Jr., Bureaucracy and Representative Government, New York, Aldine, 1971. W.A. Niskanen, Jr., Bureaucrats and Politicians,” Journal of Law and Economics, December 1975, pp. 617—43.Google Scholar Ott, M., Bureaucracy, Monopoly, and the Demand for Municipal Services, Journal of Urban Economics, November 1980, pp. 362—82.Google Scholar
9 Krueger, A., The Political Economy of the Rent-Seeking Society, American Economic Review 1974, 64 (3): 291–303.Google Scholar
10 McKenzie Funk, Windfall: The Booming Business of Global Warming, New York: Penguin, 2014. An example in Belgium is the recent demise of Electrawinds, which received some EUR 140 million in subsidies. Bestuur Electrawinds wacht gespannen af, available at http://www.gva.be/nieuws/economie/aid1498300/bestuur-electrawinds-wacht-gespannen-af.aspx (visited May 1, 2014). See also W. Van Den Eynde, L. Pauwels, De keizer van Oostende, Van Halewyck, 2012.
11 The terms fact and value are likewise left undefined.
12 EU Environmental Law, p. 44.
13 EU Environmental Law, p. 28.
14 See, for instance, A. Liberatore, and S. Funtowicz, Democratising' expertise, ‘expertising’ democracy: what does this mean, and why bother?, Science and Public Policy, 30: 3, 2003, pp 146-150. A. Blok, Experts on public trial: on democratizing expertise through a Danish consensus conference, Public Understanding of Science 2007; 16, pp. 163-182. M. Lengwiler, Participatory Approaches in Science and Technology: Historical Origins and Current Practices in Critical Perspective. Science, Technology and Human Values, 33; 2, 2008, pp 186-200.
15 EU Environmental Law, p. 28.
16 See, for example, K. Popper, The Poverty of Historicism (1957), Routledge and Kegan Paul, 1974. Mills, C. W.: The Sociological Imagination, London: Oxford University Press, 1959 Google Scholar. Andreski, S., Social Sciences as Sorcery, London: Andre Deutsch, 1972.Google Scholar
17 Pielke distinguishes between four idealized roles of scientists in the policy area and politics: pure scientist, science arbiter, issue advocate, and honest broker of policy alternatives. These distinctions are based on two views of science (linear model and stakeholder model) and two views of democracy (Madison and Schattschneider). Pielke, R.A. Jr., The Honest Broker: Making Sense of Science in Policy and Politics. Cambridge: Cambridge University Press, 2007, Chapter one.CrossRefGoogle Scholar
18 In my view, there is no reason to believe that the risk of unauthorized values intruding in scientific advice and assessment is beyond control. For the classical statement on the “objectivity” and “value–neutrality” of social research, see Max Weber on The Methodology of the Social Sciences, translated and edited by Edward A. Shills and Henry A. Finch, Glencoe, Illinois: The Free Press, 1949.
19 Science–based decision making, of course is not ‘scientism,’ the belief in the universal applicability of the scientific method and approach. See von Hayek, F.A, The Counter–Revolution of Science; Studies on the Abuse of Reason. New York: MacMillan, 1955.Google Scholar
20 Post, R.C., Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State. New Haven: Yale University Press, 2012, p. 95.Google Scholar
21 Kuhn has shown that paradigm shifts in science are not a logically determinate process, but have much to do with non–scientific factors including possibly vested interests. T. Kuhn. The Structure of Scientific Revolutions. Third edition. Chicago; The University of Chicago Press, 1996.
22 B.D. Jones, The Politics of Attention: How Government Prioritizes Problems. Chicago: The University of Chicago Press, 2005. 23 P. Slovic The Perception of Risk, Science, Vol. 236, No. 4799 (Apr. 17, 1987), pp. 280-285. Slovic argues that how people perceive risk is a function of many factors, such as whether the risk is voluntary or involuntary, whether it is old or new, known or unknown, etc.
23 P. Slovic The Perception of Risk, Science, Vol. 236, No. 4799 (Apr. 17, 1987), pp. 280-285. Slovic argues that how people perceive risk is a function of many factors, such as whether the risk is voluntary or involuntary, whether it is old or new, known or unknown, etc.
24 Slovic, Paul, Flynn, James and Kunreuther, Howard (editors), Risk, Media and Stigma: Understanding Public Challenges to Modern Science and Technology. London: Earthscan, 2001.Google Scholar
25 A career in scientific advice might be particularly attractive to those scientists who have an interest in policy and politics, and whose career options in the academic world are less than stellar.
26 See, for example, Michael Gough (editor), Politicizing Science: The Alchemy of Policymaking. Palo Alto: Hoover Institute Press Publication, 2003. Naomi Oreskes, Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming. New York: Bloomsbury Press, 2010.
27 Weingart, Cf., who claims that the scientification of politics and the politicisation of science have “destructive effects.” P. Weingart, Scientific expertise and political accountability: paradoxes of science in politics, Science and Public Policy (1999) 26 (3): 151–161.Google Scholar
28 EU Environmental Law, p. 46.
29 EU Environmental Law, p. 5.
30 EU Environmental Law, p. 176-177.
31 EU Environmental Law, p. 177.
32 EU Environmental Law, p. 193.
33 EU Environmental Law, p. 38.
34 EU Environmental Law, p. 39.
35 Post–normal science focuses on “aspects of problem solving that tend to be neglected in traditional accounts of scientific practice: uncertainty, value loading, and a plurality of legitimate perspectives.” S.Funtowicz and J. Ravetz, Post–Normal Science, Internet Encyclopaedia of Ecological Economics, February 2003. It is a method of inquiry for cases in which “facts are uncertain, values in dispute, stakes high and decisions urgent.” S.O. Funtowicz and J.R. Ravetz, A New Scientific Methodology for Global Environmental Issues, In: Ecological Economics, The Science and Management of Sustainability. Ed. Robert Costanza. New York: Columbia University Press, 1991, pp. 137–152.
36 EU Environmental Law, p. 211.
37 Given the lack of any sufficiently precise and commonly agreed definitions, no distinctions can be made between these three terms.
38 EU Environmental Law, p. 53.
39 Huber, P.W., Galileo's Revenge: Junk Science in the Courtroom. Harper Collins: Basic Books, 1991.Google Scholar
40 EU Environmental Law, p. 35.
41 Steven Piantadosi . Clinical Trials: A Methodologic Perspective, 2nd Edition, Hoboken: Wiley, 2005, p. 251-277.
42 See Bergkamp, L., The Quite Revolution in EU Administrative Procedure: Judicial Vetting of Precautionary Risk Assessment, EJRR 2014, pp. 102– 110.Google Scholar
43 ECHA, How to report weight of the evidence, Practical Guide 2, European Chemicals Agency, 2010.
44 A panel report identifies issues that are likely to arise in WOE judgments and suggests the need for some guidelines to enhance rigor, predictability, and credibility. A. Abelkop et al. SCIENTIFIC AND POLICY ANALYSIS OF PERSISTENT, BIOACCUMULATIVE, AND TOXIC CHEMICALS: A COMPARISON OF PRACTICES IN ASIA, EUROPE, AND NORTH AMERICA. Report of a Consensus Panel, 2014.
45 In science, it has been said, there is only one value: the P–value.
46 Vendômois, Joël Spiroux de, Roullier, François, Cellier, Dominique, and Séralini, Gilles–Eric, A Comparison of the Effects of Three GM Corn Varieties on Mammalian Health, Int J Biol Sci 2009; 5(7):706-726.Google ScholarPubMed
47 EU Environmental Law, p. 56.
48 EU Environmental Law, p. 32.
49 EU Environmental Law, p. 32
50 Department of Defense News Briefing – Secretary Rumsfeld and Gen. Myers, February 12, 2002, available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2636
51 EU Environmental Law, p. 203. The reference to “brutal ignorance” is proably intended to suggest that there are serious adverse impacts.
52 Lyotard, Jean–Francois, The Postmodern Condition: A Report on Knowledge. Manchester: Manchester University Press, 1984, p. 60.Google Scholar
53 EU Environmental Law, p. 33.
54 Funtowicz, S. and Ravetz, J., Post–Normal Science, Internet Encyclopaedia of Ecological Economics, February 2003 Google Scholar.
55 EU Environmental Law, p. 33.
56 EU Environmental Law, p. 34.
57 Pilkey, Orrin H. and Pilkey–Jarvis, Linda, Useless Arithmetic: Why Environmental Scientists Can't Predict the Future. New York: Columbia University Press 2007, p. 76.Google Scholar
58 EU Environmental Law, p. 37.
59 EU Environmental Law, p. .
60 EU Environmental Law, p. 36.
61 EU Environmental Law, p. 36.
62 EU Environmental Law, p. 219.
63 Trout, J. D., Democracy and scientific expertise: illusions of political and epistemic inclusion, Synthese. May 2013, Volume 190, Issue 7, pp 1267–1291.Google Scholar
64 EU Environmental Law, p. 38.
65 EU Environmental Law, p. 37.
66 EU Environmental Law, p. 35.
67 Graham, John D., Saving Lives Through Administrative Law and Economics, 157 U. PA. L. REV. 395 (2008).Google Scholar
68 Sunstein, Cass R.. The Real World of Cost-Benefit Analysis: Thirty–Six Questions (and Almost as Many Answers). Columbia Law Review, Vol. 114, No. 1, 2014, pp. 167–211 Google Scholar
69 Cox, Louis Anthony Jr., Brown, Gerald G. and Pollock, Stephen M., When Is Uncertainty about Uncertainty Worth Characterizing?, Interfaces, Vol. 38, No. 6 (Nov. - Dec., 2008), pp. 465–468.Google Scholar
70 Cf. Alan Sokal, Transgressing the Boundaries: Towards A Transformative Hermeneutics of Quantum Gravity. Social Text, 46/47, Summer 1996, pp. 217-252.
71 Funtowicz, Silvio, Shepherd, Iain and Wilkinson, David. Science and governance in the European Union: a contribution to the debate, Science and Public Policy (2000) 27 (5): 327–336.Google Scholar
72 The formula is year of publication of next edition = year of publication of most recent edition plus 9 years. * Emeritus Professor, University of Cardiff, UK. 1 European Commission, Towards a comprehensive European framework for online gambling Strasbourg, 23 October 2012, Com (2012) 345 final; Recommendation on common protection of consumers of gambling services DG MARKT UNIT E3 (11/2012). http://ec.europa.eu/smart-regulation/impact/planned_ia/docs/2013_markt_022_023_gambling.pdf.