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

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.




More in this Issue

Debating the Causes of Party Polarization in America

It has only been a decade, but the mood in America since the new millennium has largely been one of anger and disenchantment. This decade began with a disputed presidential election, followed by 9/11, two wars, a bad economy, and numerous natural disasters that have captured the public imagination. Pundits from the right and left […]

The Persistent Cultural Script of Judicial Dispassion

In contemporary Western jurisprudence it is never appropriate for emotion””anger, love, hatred, sadness, disgust, fear, joy””to affect judicial decision making. A good judge should feel no emotion; if she does, she puts it aside. To call a judge emotional is a stinging insult, signifying a failure of discipline, impartiality, and reason. Insistence on judicial dispassion […]

Beyond Experience: Getting Retributive Justice Right

How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact […]

Maintaining Health Laboratories of Experimentation: Federalism, Health Care Reform, and ERISA

In this Comment, we demonstrate the ingenuity of San Francisco’s Health Care Security Ordinance and explain why local experimentation with health care solutions is an invaluable component of America’s ongoing efforts to solve the national health care crisis. We then analyze the Golden Gate Restaurant Association’s legal challenge to the Ordinance, which argues that the […]

The Rise and Fall of the Implied Warrant of Habitability

Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients specific legal rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution’s frailty by ending Aid to Families […]

Moderation and Coherence in American Democracy

If Professor Pildes is correct, American democracy is in long-term, serious trouble. Our political system “over the last generation has had one defining attribute: the rise of extreme partisan polarization.”1This “hyperpartisanship”2 is not just caused by “divisive political elites and leaders,”3 but is a reflection of the “poisonous party polarization”4 of the electorate itself, the […]

The Limits of Electoral and Legislative Reform in Addressing Polarization

Professor Richard Pildes provides a very thorough and persuasive overview of the key arguments about the causes of partisan polarization in the United States. I am especially sympathetic to his argument that deep macro- historical factors such as the partisan alignment of the South””rather than idiosyncratic events, elections, and personalities””bare the primary blame. But I […]

What Pildes Missed: The Framers, the True Impact of the Voting Rights Act, and the Far Right

I commend Professor Richard Pildes for offering such a creative and cogent discussion of polarization in contemporary American political life. I especially appreciate that he has brought such a calm, dispassionate, and admirably scholarly tone to a discussion that is too often””well, polarized. Yet I do wonder if in the effort to find a stable […]

Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America

Politics as partisan warfare: that is our world. Over the last generation, American democracy has had one defining attribute: extreme partisan polarization. We have not seen the intensity of political conflict and the radical separation between the two major political parties that characterizes our age since the late nineteenth century. Within Congress, the parties have […]