Jason S. Johnston

Restoring Objectivity and Balance to Regulatory Science: A Comment on Dudley and Peacock

Supreme Court Economic Review


When Congress passed the great wave of statutes to protect the environment and human health in the 1970s and early 1980s, it typically commanded that pollution reduction standards set by the Environmental Protection Agency (EPA) have a sound scientific basis. But as decided in its formative Nixon Administration days, the EPA was intended not to be a balancer of environmental benefits against economic and other costs, but an advocacy agency, searching for new risks to be eliminated through regulation (Landy et al. 1994, 22–45). As an advocacy agency, the EPA increasingly relies upon scientific risk assessments as a way of justifying increasingly stringent pollution reduction standards. Although the EPA routinely advertises every major new regulation as not only justified but required by “science,” many such regulations entirely lack the sound scientific basis that Congress intended. This is because the EPA and its science advisors do not report objectively and fully on what is known and unknown, and with what degree of uncertainty, about the health effects of varying levels of pollution, but instead selectively marshal and understate the limits of scientific evidence supporting regulation. In their insightful and important article, Dudley and Peacock (2018) provide vivid illustrations of how the incentives of regulatory policymakers and their science advisors have caused what Congress may once have thought an unquestionably sound reliance on science in environmental regulation to go badly off track. They also set out some institutional reforms that may help regulation better reflect inherently uncertain scientific knowledge. This comment addresses both the problems Dudley and Peacock identify and some of their proposed solutions.


Jason S. Johnston, Restoring Objectivity and Balance to Regulatory Science: A Comment on Dudley and Peacock, 24 Supreme Court Economic Review 101-108 (2016).

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