Meinhard Doelle: Law & Policy in the Face of Uncertainty
Meinhard Doelle starts off by telling us he has more questions than answers. He continues his disclaimer by confessing that his own perspective is the mitigation perspective. One of the biggest uncertainties we have is what we will or can do in terms of mitigation. If we are going to adapt, we need to understand or answer that question.
The German strategy of adapting to climate change by guard rails has some embedded assumptions -- that climate change will be within two degrees, and within one meter of current sea level. Is this the right set of assumptions? He's not sure it is -- it is perhaps too conservative. (Correct me if I got this wrong).
When do we start to mitigate and allocate resources toward mitigation and adaptation? Do we wait for that scientific 95% certainty threshold?
He's still disclaiming. He's Canadian -- so he can snipe at "government" and we aren't to take offense or assume he's talking about the US government. And his final disclaimer -- he's crossing disciplines here and, although many lawyers cross disciplines, we're not necessarily any good at it. So keep me honest.
And now he's off, asking his questions. Is there such a thing as objective science, apart from politics and values? A familiar question: how do we make marine policy decisions in the face of major uncertainty?
Meinhard wants us to think about how values impact science: in the identification of research needs, in funding decisions, in the proposals and implementation, in the findings and the peer review, and in the way science is incorporated into policy. He also asks us who should get to play a role in the development of science -- scientists, government officials, resource users, community groups, NGOs, and others (future generations?)?
But his main question is this: how should we deal with uncertainty? Science hates uncertainty and wants a 95% confidence threshold before it will conclude something. Science is predominantly concerned with preventing false positives. It is less concerned about false negatives (e.g. a failure to draw a conclusion). Science can wait for certainty.
Does that approach to uncertainty work for policymaking? A false positive would mean: an impact has been predicted and acted upon, and it doesn't in fact materialize. A false negative would mean a possible impact is not identified and acted upon, and it DOES materialize.
From a policy point of view, we are concerned about these "false negatives". And science isn't helping us manage those sides of marine ecosystem results. Which is worse? What are the implications of being wrong? What have we done elsewhere?
An analogy is criminal law, with an embedded value: it is better to let 10 guilty people go free than to falsely convict one innocent person. That has made for a legal system with a great number of protections ("technicalities") to prevent the conviction of innocent persons. Can we apply that here?
What is the more harmful mistake? To unnecessarily interrupt business as usual to require a change in anticipation of a possible future scenario that doesn't materialize? Or to carry on without taking action and have the harmful scenario occur? This is a philosophical decision, not a science or economic decision. But of course it depends on the underlying probabilities and economic ("market" and "non-market") values.
Like economics, law brings a language to conversations about science and policy decisions. Meinhard identifies four approaches:
- "Sound science" and its threshold of confidence (the requirement that peer review and 95% certainty in conclusions before a hypothesis is accepted as the basis for action)
- the risk assessment approach. We can deal with "risk" but have a hard time dealing with uncertainty. This approach has a hard time dealing with the continuum between false negatives and false positives. There are some inherent limitations in this approach, but there are values embedded and hidden in risk assessment models: sometimes these values are not disclosed or made explicit.
- how do you deal with intergenerational issues and the distribution of risk?
- how do you deal with uncertainty?
- how do we quantify risk?
- Cost-benefit analysis:
- crucial value choice about what to include (
- bringing in full cost (e.g. "non-market" values and costs) is critical
- intergenerational distribution of costs and benefits is important.
- doesn't deal well with uncertainty.
- Precautionary approach:
- this tool tries to deal with uncertainty
- embedded assumption is that we should plan for risky situations and avoid them if we can.
- the value doesn't discount future generations
Q: Fisheries management seems to take the precautionary approach. "Use the best science available" is the standard -- it needn't all be peer reviewed. Preserving the resource is the highest value and the standard by which decisions are made.
A: a 10% chance of something catastrophic happening is enough to engage it in serious conversation about adaptation and mitigation. To what extent do we want nature as altered by climate change to manage our resources, and to what extent do we want to try to take control of this?
A: Dan Holland: I may be muddying this in my mind, but I think when you talk about the "sound science" approach, you're not making a clear distinction. A 95% confidence rate in scientific conclusions about the mechanics of something or even the interpretation of data trends is not equivalent to a 95% probability that an outcome will come about -- it's really important not to conflate these two concepts. Assigning probabilities to outcomes is a different process than drawing conclusions about data at the scientific threshold
Q: check out policyscience.org. This is a set of tools that help policymakers arrive at conclusions for the public interest. And what would you say if you had the ear of a Washington policymaker?
A: we need to have an international consensus on what would be an acceptable result. The consensus seems to be that climate increase should be limited to two degrees. Then we need to agree on the principles that will govern how we allocate resources, then we need to determine the actions we need to take and assign those actions across nations. We need to have discussions as communities that make decisions, and those communities have values that should be embedded in the actions we take and the framework by which we make decisions.
Q: but aren't those values already embedded in the statutes we've enacted, via our democratically elected representatives?
A: If the public doesn't know and debate those embedded values, I don't think we can conclude that. If you want to develop good policy based on science, you have to bring everyone along to participate in that discussion.
Q: Robert Johnston: this conversation mirrors the conversation of economists when talking about non-market values. Do you want the values to be driven by the non-informed public, or do you want to inform them? And if so, what's the line between informing the public and giving them a spin job?
A: Meinhard: Great question. I lean toward an informed public making the decision. But who is going to stand in for unborn generations?
A: William Brennan: the question of how you inform the public is critical. My son came back from seeing "The Day After Tomorrow" really dejected -- that movie turned climate change into a cartoon. Did it set back the cause and the public debate about climate change? That can have the opposite effect.
Q: Andy Pershing -- is there a positive role for the legal profession in pushing for large scale structural changes? Our system is so constrained -- how do you break out of those constraints?
A: William Brennan: don't forget that within public policy, environmental issues in a representative democracy rank lower than other issues. So we also have to raise the priority of environmental issues in the public eye.
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