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Report No. 186

Chapter II

Uncertainty of Science and Problems of Environmental Courts

While the advances in science and technology in the last few decades have been extraordinary, the fact remains that in certain areas concerning environment, where the data play a crucial role, results of experiments conducted by scientific institutions have remained tentative. The results are accurate in proportion to the accuracy of data and to the extent that experiment by use of technology has been able to eliminate all chances of inaccurate conclusions. In a recent book, it is stated:

Faced with the growing complexity and globality of ecological phenomenon, science has ceased to be omnipotent. Strictly speaking, it is no longer possible to have so-called technical standards that express the facts in a definitive manner. Complete scientific certainty is the exception, rather than the norm.

As pointed out in Hans Jones' 'The Imperative of Responsibility', a paradigm of uncertainty has taken the place of certainty; "whereas Descartes recommended that we hold as false everything that can be questioned, faced with planetary risks, it would, on the contrary be advisable to treat doubt as a possible certainty and thus as a fundamentally positive element in any decision. no longer omniscient, science will not have the power categorically to express single truth Henceforth, however, when scientists are committed, they will inform the 11decision-maker that their knowledge is incomplete and express doubts and differences, even ignorance.

The disappearance of the alliance between knowledge and power will shatter the Weberian myth of the expert providing indisputable knowledge to a politician who takes decisions that reflect the values he defends." (Environmental Principles by Nicolas de Sadeleer, Ch.3, 'Precautionary Principle', p. 177-178, Oxford University Press, 2002)

The U.S. Supreme Court, in its landmark judgment in Daubert vs. Merrel Dow Pharmaceuticals Inc: (1993) 113 S.ct. 2786 while referring to the different goals of science and law in the ascertainment of truth observed as follows:

there are important differences between the quest for truth in the court-room and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly."

On the same lines, Mr. Brian Wyne states in his article 'Uncertainty and Environmental hearing: (Vol.2, Global Envtl. Change p 111)(1992) as follows:

Uncertainty, resulting from inadequate data, ignorance and indeterminacy, is an inherent part of science."

Uncertainty becomes a problem when scientific knowledge is institutionalized in policy-making or used as a basis for decision-making by 12agencies and Courts. Scientists may refine, modify or discard variables or models when more information is available: however, agencies and courts must make choices based on existing scientific knowledge. In addition, agency decision-making evidence is generally presented in a scientific form that cannot be easily tested. Therefore, inadequacies in the record due to uncertainty or insufficient knowledge may not be properly considered. (Charmian Barton: The Status of the Precautionary Principle in Australia: (Vol 22, Harvard Environmental Law Rev. p 509 at pp 510-511 (1998).

Proposal to Constitute Environment Courts Back

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