Ian Fein

Reassessing the Role of the National Research Council: Peer Review, Political Tool, or Science Court

In recent years, Congress and executive agencies have increasingly turned to the National Research Council (NRC) to defuse environmental regulatory controversies. This heightened reliance on regulatory peer review raises important questions for administrative law. As the operating arm of the National Academy of Sciences, one of the most well-respected institutions in the United States, the NRC commissions consensus reports by independent experts to advise the government on science-policy issues. However, the experts who author the reports are neither infallible nor politically accountable. Further, those experts hold agency decisions to a more rigorous evidentiary standard than traditional judicial review, and often exacerbate—rather than help resolve—the underlying policy disputes. Legal academics have debated the merits of regulatory peer review yet have relied on very few data points. This Comment fills this gap in the literature by detailing recent NRC reports addressing discrete environmental disputes. Taken together, case studies regarding the Klamath Basin, Point Reyes, and the Bay Delta reveal a trend of increased politicization and decreased utility for the role of the NRC in such instances. Drawing from these case studies, this Comment concludes by recommending several ways to maximize the benefits and minimize the costs of the NRC’s future regulatory peer reviews.