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97 Notre Dame L. Rev. Reflection 125 (2022)


This Essay begins with the understanding that environmental law could not exist without science. The tolerable amount of pollution, the proximity of a species to extinction, and the threats presented by climate change are just some of the questions that environmental law depends on science to answer. Often environmental law insists that science alone is relevant to a particular regulatory action, such as an air pollution standard or an endangered species listing. It is not surprising, therefore, that many disputes about environmental law are really disputes about science.

Science, however, does not always yield the information that environmental law needs or that interested parties want. Disputes over the status of the pika illustrate this predicament. The pika is a small mammal that lives in rock piles in very high elevations in the Rocky Mountains. Pikas were thought to be especially vulnerable to climate change because they live only at high elevations with chilly weather. But we have since learned that pikas may be more adaptable to a warming climate than scientists once believed. The federal government thus concluded in 2010 that the pika is not in danger of extinction within the meaning of the ESA.

The ESA, like many other environmental laws, asks a purely scientific question: "Is the pika in danger of going extinct?" If it is, the pika gets listed and protected by the law. If the pika is not in danger of going extinct, it remains legally unprotected from any activities that would cause it harm. The ESA demands that science and science alone-answer the question of whether the pika is an endangered species eligible for the protection of the law. Only then, if the pika is found to be endangered, does the ESA broaden its view and incorporate other values, including economic ones, into decisions about how to rescue the species. Yet even that single inquiry ("Is the pika in danger of going extinct?") illustrates many of the challenges that confront the application of science to environmental law. First, environmental law presumes there is an objectively true answer to the scientific question. Second, the science that informs environmental law is subject to uncertainty. Third, environmental law must confront the fact that scientific teaching is sometimes subject to unbelief.

My argument is that the virtue of humility provides a needed framework for addressing each of these challenges. Christian teaching-particularly evangelical thinking-may seem like a strange place to turn to engage environmental law's reliance on science. Yes, those at the forefront of the scientific revolution were Christian adherents who perceived science as a means of understanding more about the world that God created. But the Christian roots of modern science weakened over the course of several centuries. Evangelicals became wary of scientific claims that they regarded as contrary to biblical teaching, such as Darwin's theory of evolution. There is a notable diversity of opinion among evangelicals with respect to the precise relationship between biblical teaching about creation and scientific teaching about evolution, but it remains true that evangelicals are more cautious in approaching evolutionary science than are other segments of the public.


Special Issue, John Copeland Nagle, A Tribute



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