Environmental science and environmental law

The problem of resolving challenges to general propositions about the fundamentals of environmental science is not unique to the Courts. The broader public policy making process that precedes the creation of criminal law legislation, has been wrestling with the same issue. Here I discuss some of the reasoning behind current approaches int the policy making area intended to improve the input from 'sound science'. I then attempt to draw some conclusions as to the implications of these developments for judicial process, both nationally and internationally. The route of the argument is as follows. I need to find a workable definition of science. The most useful focuses on science as a body of knowledge, and includes both what is known and what is remains in dispute. This means that the completed assessment does not aim to eliminate uncertainties, and that a second step of risk assessment is required to make a decision. This procedural separation then leaves the task of devising a science assessment process that minimises overestimation of what we know and underestimation of what is uncertain. I have argued here that a growing body of good practice from the policy-making arena is mapping out procedures which seek to improve the deliberations underpinning new legislation. International environmental law has been one of the leaders in this respect. Unfortunately, the procedures require care and resources, and may not be well suited for use in more day-to-day civil or criminal litigation.