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Science Can Improve Government Regulations But Should Not Dictate Policy, Professor Says

April 29, 2009

Regulatory agencies must make use of science, but they should not portray policy decisions as being the inevitable result of research findings, a University of Pennsylvania Law School professor told a congressional subcommittee today (April 30, 2009).

“Science describes; it does not prescribe,” said Cary Coglianese, Penn Law’s associate dean for academic affairs and director of the Penn Program on Regulation. “Regulatory agencies have not always acknowledged that their decisions are ultimately policy choices, albeit ones informed by science.”
Coglianese delivered his comments to a subcommittee of the House Committee on Science and Technology, which is holding hearings on “The Role of Science in Regulatory Reform.”
Science is needed to discover causes and effects, and researchers can help identify emerging problems and possible solutions, Coglianese said. A government response to the swine flu epidemic that emphasized avoiding pork products instead of frequent washing of hands would be misguided and possibly dangerous, he pointed out. 
But science cannot and should not dictate policy, he added. Sometimes regulators must act before scientists fully understand a problem and possible solutions; at other times, regulators may be justified in failing to take any action even in the face of scientific consensus, Coglianese said.
“In the context of regulatory policy, science’s role – what President Obama called its ‘rightful place’ – is to provide a necessary but not sufficient input into policy decisions,” he said.
Citing research he conducted with Gary Marchant, a law professor at Arizona State University, Coglianese described a “science charade” undertaken by the U.S. Environmental Protection Agency when it has revised air quality standards. EPA claimed that science must prevail, Coglianese said. But the agency never adequately explained why it chose standards that could lead to job losses and higher utility bills while tolerating known health effects. 
Those were not decisions driven by science, Coglianese concluded. “Science is about understanding or predicting what is, not about concluding or justifying what a standard should be,” he said.
Congress could correct agencies’ misrepresentation of the role of science by amending statutes that keep agencies from fully considering all relevant policy considerations, or by considering a new law requiring agencies to clearly demarcate the role science has played in their decisions and the role played by policy reasons, Coglianese suggested.
“Many observers of the regulatory process have properly sought to enhance ‘sound science’ in agency decision making – or to avoid what is variously considered ‘junk science’ or ‘bent science,’” he said.  “But just as there is always room for improving the quality of the science that regulatory agencies must rely upon, there are also opportunities to enhance the quality of agencies’ policy reasoning, especially where they misleadingly suggest that science has determined their decisions.”