Sixth Journal Summary for Upcoming Publication of ASU Law Journal

When Natural Science Meets the Dismal Science

An upcoming Arizona State University School of Law publication will include an article written by Stephanie Tai, an Assistant Professor of Law at the University of Wisconsin Law School. Professor Tai has written a number of articles on law and the environment and teaches in areas of the law related to this article such as environmental law, law and science, and natural resources law.

The principal focus of the article is consideration of the way in which courts have dealt with economic and scientific developments in considering Commerce Clause challenges to environmental laws, particularly in the context of wetland regulation. Professor Tai advances three arguments during the course of the article: (1) that scientific and economic developments have been incorporated in the Commerce Clause opinions; (2) that this phenomenon can be explained by considering the “empirical values” of the Constitution; and (3) that apparent inconsistencies in this area of the law could be the result of different views of nature and science. Professor Tai suggests that courts should provide more detailed discussion of the “epistemological commitments” underlying the Commerce Clause opinions.

Part I of the article discusses the role of economics and natural science in the environmental sciences. Because the term “environment” captures so many concepts and entities, the scientific research related to the field focuses on interrelationships, is extremely complex and not amenable to direct experimentation. These features of environmental science create difficulty in attempting to obtain quantitative accounts of natural resource phenomena.

A discussion of the positivist account of science follows. Professor Tai then addresses the numerous criticisms of the positivist position in the scientific field. Her main argument is that there is no single conception of science and that is reflected in natural science and economics. These notions of science have an effect on the way courts and judges consider scientific evidence, which is explored in detail in the actual article.

Part II of the article focuses on empiricism and science in the context of wetland regulation. Professor Tai begins with a discussion of the Commerce Clause generally and the broad authority it provides to Congress to regulate. She ascribes the breadth of authority to difficulty in interpreting the amorphous language of the Clause itself.

Uncertainty in environmental regulation of natural resources stems from the Court’s inconsistency with respect to considering natural resources commodities or natural resources. Professor Tai goes on to discuss a number of Commerce Clause cases and suggests that judges have emphasized the weight of empirical information the developments in the natural sciences and the field of economics, though have not fully acknowledged the thought process and analytical underpinnings.

Professor Tai then highlights various congressional enactments, including CERCLA and the Endangered Species Act, and the understanding of environmental resources justifying the use of the Commerce Clause authority to enact such regulations. These regulations have been considered in various circuit courts resulting in inconsistent opinions. These inconsistencies are difficult to explain without an understanding of the courts’ consideration of the available economic and scientific research.

The authority to regulate wetlands under the Clean Water Act is analyzed next. This analysis does not exclusively include Commerce Clause discussion because certain implementation regulations are included in the Clean Water Act. Nevertheless, the Commerce Clause and the relation to scientific and economic evidence is a recurring theme in the cases discussed by Professor Tai. The Dormant Commerce Clause is also discussed in the context of state regulation of wetland areas.

Part III of Professor Tai’s article develops the main arguments of the article. Professor Tai proposes a judicial norm of scientific elaboration in Commerce Clause cases. Because of the varying meanings ascribed to concepts such as “science,” “economics,” and “commerce,” this norm of scientific elaboration would help explain the inconsistencies in court opinions dealing with this area of the law. The article does not propose declaring a singular meaning for such terms, only that the rationale behind such decisions be explicit to bolster the discourse in science and the Commerce Clause.