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Strategic Idealizations Of Science To Oppose Environmenal Regulation: A Case Study Of Five Tmdl Controversies, David S. Caudill, Donald E. Curley

Working Paper Series

Proponents of environmental regulation have catalogued various strategies used by takeholders to delay or weaken regulatory efforts, including (1) manufacturing or magnifying uncertainty; (2) demanding “sound science” (and thereby imposing unreasonable standards of evidence); and (3) data quality initiatives that permit deconstruction of credible studies by highlighting inevitable assumptions, funding sources, and areas for further research. Such strategies can be termed “idealizations” of science insofar as they rely on an unrealistic image of good science as somehow capable of avoiding tentative conclusions, institutional interests, consensual assumptions, and the need for further research.

The question remains, however, when does an argument …

The Unbearable Cost Of Skipping The Check: Property Rights, Takings Compensation & Ecological Protection In The Western Water Law Context, Scott A. Shepard

Scott A. Shepard

Western-state non-riparian water-law regimes remain legally vital and highly useful in the age of increased scarcity and ecological concern. Claims that the property rights central to these regimes can be revoked without Fifth-Amendment takings implications – as a result of applying various doctrines or of limitations inherent in the rights as granted – are historically and legally unsound, and doctrinally unwise. Declaring water rights non-compensable would require accepting a maxim of legal interpretation that could not be limited to the water-rights (or even property-rights) context, and would render all constitutional guarantees liable to negation without constitutional process. Moreover, such a …