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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium STAGE SETTING PAPERS
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium This page in the original is blank.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium WHAT DO POLICYMAKERS AND POLICY-IMPLEMENTORS NEED FROM SCIENTISTS? Peter M. Douglas California Coastal Commission “The Legislature … finds and declares that sound and timely scientific recommendations are necessary for many coastal planning, conservation, and development decisions and that the [California Coastal] Commission should, in addition to developing its own expertise in significant applicable fields of science, interact with members of the scientific and academic communities in the social, physical, and natural sciences so that the Commission may receive technical advice … with regard to its decision-making.... The Commission is encouraged to utilize innovative techniques to increase effective communication between the Commission and the scientific community....” (Assembly Bill 2559 [Chapter 965, Statutes of 1992] by Assembly Member Sam Farr and signed into law by California Governor Pete Wilson) Introduction Before addressing the subject of this paper directly, some variables that influence and confound the discussion need to be put on the table. To some policymakers the answer to the question “What do they need from scientists?” is simple—nothing. For others, the answer is that they only want, and therefore
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium “need,” scientific input which supports or furthers their preconceived political or policy agenda. Yet others, keeping an open mind, seek high-caliber, result-neutral scientific information in the hope it will shed light on a complex technical problem and aid in the identification of feasible solutions. The answer to the question depends in large measure on who wants the information, why they want it, when they want it, what they intend to do with it and when, and whether they are serious about it or just striving to appear interested or interesting. Understanding and agreeing on the role of scientists in a particular context is also critical and should be made clear at the outset. To understand respective roles we need to define our terms and goals. We must be clear about our expectations and need to recognize the limitations of scientific knowledge, especially in the environmental sciences. For purposes of this paper, scientific information refers to factual information (data and conclusions) based on observation, study and experimentation that follows recognized principles of methodology and verification to maximize accuracy and minimize the potential for error. The assumption of this paper is that misuse of science or scientific knowledge is to be avoided by, among other techniques, carefully distinguishing between wishful thinking and reality, and facts and interests. The goal should be to use scientific information to formulate policy and program implementation decisions and to ensure they are predicated on a sound foundation of the most current, factual knowledge. Obviously, separating facts from values or interests is not easy. That is why defining up front the role of science is critical. My assumption is that science should be used to help us understand the present condition of a given environment, the actions and forces of change that are proposed affecting that environment and to assist in the evaluation and prediction of short- and long-term environmental impacts and consequences that will or could result. Science is the tool. How it is used and what it is used to create involves policy and politics.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium Do Public Policymakers and Implementors Need Scientific Input? In this era of high technology in which knowledge is the new source of power, the answer should be obvious.8 On closer review, however, one hears other answers. Certainly, no one can question the contributions of science to the human condition. Its achievements across the range of human enterprise and interaction with the natural environments of land, sea, air and space are legion. And yet, in the arena of public policy development and implementation, whether in health care, space exploration or environmental protection, the application of science to decisionmaking has a record of mixed results. Most of what drives the politics and decisionmaking within and among public institutions in societies of the world is based on values and beliefs, whether religious or secular. Rational, objective, scientifically based thinking, more often than not, has little to do with the outcome. For example, no matter how many times an American seaside home is destroyed by the forces of nature, the urge to “not give up,” the desire to live by the ocean’s edge, and the notion that humans can somehow hold nature at bay conspire to cause people to come back for more of the same. It makes no difference that scientists warn that the risks of another storm striking and doing serious and even fatal harm are predictable and certain. People make judgments and ignore the advice or don’t believe it. A few follow it. Others acknowledge the advice as sound, but decide to rebuild and accept the risks and unknown costs of a potential future event as a tradeoff for the short-term gratification living on the seashore brings. And, in this country at least, governmental regulators usually issue permits for the reconstruction. One may well agree that in a free society individuals should be allowed to assume certain risks if they are willing to pay the costs even when scientists say the chances of the risk occurring are certain. The rub is that the costs in assuming such risks are rarely borne solely by the individual. So the question becomes more complex and we must ask if society should be expected to bear any burden for an individual’s assumption of the risk. After we stir good-old traditional values into the mix, such as an individual’s freedom to make choices, that government has no business protecting people from their own folly, and the duty of government to come to the rescue when disaster strikes, no matter how predictable, we also have to consider the affect of evolving doctrines of law. 9 When one looks at all these factors together, questions relating 8 See Alvin Toffler, Powershift, Bantam Books (1990). 9 Lucas v. South Carolina Council, (1992) 112 S.Ct 2886
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium to the value of science to public policy decisionmaking take on a whole new meaning. Given today’s shrinking public sector budgets and difficult economic times, some ask if we can afford scientific input especially if the information only plays a minor role in the policy decisions made. In these times of increasingly complex human, societal and environmental problems, many more, I would hope, ask the question differently—“Can we afford not to have such input?” It seems that, as with any profound question, it all depends. Our response depends on the nature of the problem, who is asking the question, who is affected by the answer, what the answer is, what is at stake, whether the courts have imposed requirements that affect the issue, and so on. In coastal management programs, for example, the role of science has fluctuated—waxing and waning in importance over the years depending on factors having little to do with the value of science to good decisionmaking. Given the dimensions and complexities of contemporary problems, and in view of new requirements by the courts that regulatory agencies make stronger evidentiary showings of a nexus between site-specific project impacts and the decision rendered, scientific input rises to a new level of significance.10 Non-governmental organizations are also turning more to science to bolster their arguments for tougher environmental protection. As more becomes known about ecology and the workings of natural systems that determine biodiversity, and biological health and productivity, science will clearly play a more decisive role in the decisionmaking process. For example, in the long struggle to restore the biological integrity of Mono Lake in California, the absence of a settlement and the passage of time have allowed more scientific evidence to be collected about the lake and the range of perturbations resulting from Los Angeles’ water draw-down practices. This has resulted in a stronger case for decisions protective of the natural resources of Mono Lake by the courts and the responsible regulatory agencies. I strongly believe science will be of increasing importance to public policy formulation and implementation in the future. As more single purpose interest groups become involved in advocating their own particular agenda, the competition among values may produce decisionmaking gridlock. In many cases, scientific or other technical, specialized expertise may provide the only common ground on which to fashion mutually acceptable solutions. The application of science is also important to avoid costly and misdirected “solutions” to difficult problems. I am 10 Surfside Colony, Ltd. v. California Coastal Commission, 277 California Reporter 371 (1991).
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium mindful that science can have the opposite effect as well. However, as populations around the globe continue to expand at alarming rates and the capacity of natural systems to accommodate human activities is exceeded, we must intensify our quest for politically and economically acceptable solutions. Science will play a vital role in finding these solutions. Indeed, it appears that science and scientists cannot escape being drawn into the political arena to help us cope with the growing number of environmental pollution problems faced by countries throughout the world.11 Who Wants the Scientific Information? Policymakers What scientific information is needed by policy decisionmakers usually depends on who needs it. In the legislative context, reliance on scientific knowledge for environmental policy formulation is often merely strategic and used to muster political support. Not infrequently, policymakers or -implementors point to science as the rationale and sole basis for a particular environmental policy decision. In these cases science becomes politics, often with counterproductive and unintended consequences. 12 Examples include the struggle over the use and banning of certain pesticides such as DDT. More to the point here, the felt need for “good” science at this level appears not to be as pressing, in many cases, because no one seems to care enough to examine closely the accuracy of the scientific information presented. In fact, the real need for “good” science in this context is far greater than many other settings because the consequences of the decisions to be made usually are more far-reaching. Unfortunately, in a legislative context the institutional desire to ensure quality and a sound, factual basis for decisionmaking is usually limited or non-existent. Perhaps this explains why U.S. Supreme Court Justice Scalia gives so little credence to legislative findings.13 In a legislative setting, any scientific information that supports a particular political agenda may be good enough even though in other contexts it would be judged to be preliminary, superficial, or too speculative. 11 See California Cooperative Oceanic Fisheries Investigations, California Department of Fish and Game, Reports Vol. 31 (comments by California Assembly Member Byron Sher, Chairman of the Assembly Natural Resources Committee), p. 38 (1990). 12 Boehmer-Christiansen, Sonja, Black Mist and Acid Rain - Science as Fig Leaf of Policy, The Political Quarterly, p. 145 (April 1988). 13 Lucas v. California Coastal Commission, ibid.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium I have often seen the use of “loose” science to further a particular policy agenda both in the legislative and executive branches of government. I recall one example of loose use of a technical study in the early 1980s involving an evaluation for the California State Senate of the occurrence of radon gas in California. The study showed higher levels of carcinogenic radon gas, where it did exist, in homes built to conserve energy than in older, “less-tight” homes. One Legislator used the study to argue for the need to relax the state’s tough home energy efficiency standards in order to reduce cancer risks to homeowners. Drawing this conclusion from the study was remarkable enough, but the senator went on to argue that homes be built less air-tight. He then argued that because more electric energy would be needed to heat the “less-tight” homes, more nuclear powerplants should be built in California! Although this study’s “science” may have been good, its use was tortured. Exceptions do, of course, occur. When “good” science is used depends on the individual politician, the context of its use, and the nature of any “outside” review of its use. Another factor, is that policymakers often want information in short time frames leaving scientists insufficient time to explore the issues fully. Policymakers, in these circumstances, usually get no information, partial results, superficial studies, or a lot of speculation. Yet another element relates to the extent of the inquiry that is expected to generate the scientific knowledge a policymaker wants.14 For example, a simple search and synthesis of existing scientific literature on a topic may be sufficient for some policy formulation purposes. Generic studies may also suffice for legislative purposes although they may no longer be adequate for purposes of regulatory decisionmaking.15 Information needs will also differ depending on the level at which the policy is being made (e.g., local, regional, state, or federal). Some politicians and special interest groups, at times, seem to have a vested need to perpetuate ignorance, especially among the public, rather than seeking enlightenment through scientific knowledge. The behavior of many industry groups, aided by politicians who need their support, to prevent or stall the development and publication of scientific information about the adverse effects of their operations is an illustration of this condition. Pesticide use, discharges into rivers and the ocean, and air emissions are but some specific examples. 14 For a discussion of various modes of inquiry affecting the quality of thought going into policy development, see Hammond, Kenneth R., Judgment and Decision in Public Policy Formation, p. 15 (1978). 15 Surfside Colony Ltd. v. California Coastal Commission, (1991) 226 Cal.App.3d 1260.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium Some policymakers have an interest in faulty science. A prime example is the curious saga of efforts to save the Kemp’s Ridley Sea Turtle. 16 Begun as an effort to save a rapidly declining species of sea turtle, the experiment was soon shown to be fatally flawed by its creators. However, it could not be ended because it had taken on a life of its own. Gulf coast members of Congress insisted that the turtle headstarting project be continued because it offered a cheap way for the shrimp industry to compensate for turtles killed in their shrimp harvest operations. The fatal flaw in the project was that it lacked necessary controls to prove that turtles raised in captivity were actually reproducing in the wild. Although this was the primary purpose of the original project, current supporters argue it should be continued because no one has been able to show that the project does not work. So the project continues because its flawed methodology cannot prove that it does or does not work. This case clearly illustrates that what scientific information is needed depends on who wants it. It also demonstrates the dangers of poor science. When the state of Texas declared this project “a proven management tool”, its author was prompted to lament that he had “created a monster.” Policy-Implementors Implementors of policies made by others usually find themselves in a different position relative to the type and substance of the scientific information they need. Many implementors function in regulatory capacities and must adhere to much more rigorous standards of factual accuracy than do legislators or policymakers in the executive branch, including members of boards and commissions. Because their decisions are often subjected to judicial scrutiny, regulators acting in a quasi-judicial capacity must take steps to ensure that the scientific information they use in making a particular decision derives from “good science. ” Again, the quality of the “science” depends on the mandated context in which the “science” is used, and the nature of the review of the use of the scientific knowledge. Policy-implementors who have courts or scientific review panels looking over their shoulders are much more scrupulous in their use of knowledge and science than those operating without such “ constraints.” For example and as a result of recent judicial decisions, broad, generic studies or 16 See, “A Dubious Battle to Save the Kemp’s Ridley Sea Turtle,” Science, Vol. 256, p. 614 (1 May 1992).
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium scientific information or conclusions may no longer suffice in particular cases where site-specific scientific inquiry may now be required. 17 As mentioned above, policy-implementors usually cannot “get away” with using the same type of scientific information policymakers use. Some of it may meet the same standards of accuracy and credibility, but that is probably the exception. Another factor in determining what scientific information policy-implementors need is the capacity in which the decisionmakers act. For example and generally speaking, the level of specificity and scope of scientific information needed for a planning decision may be less exacting than what is needed for a regulatory decision. Even within the range of regulatory decisions, differences may arise depending on the nature of the property interest being impacted and how it is affected. For example, courts will take a much more critical look at a decision that exacts a property interest coupled with public use (e.g., an easement for public access or recreational use) than at a decision that does not involve a private property interest (e.g., stream setback requirement) or public use (e.g., an open space easement).18 Another determinant of the type of scientific information implementors need is the methodology used to address problems and resolve disputes. There is a distinction between the use of science in an adversarial process and its use in a consensus or non-adversarial proceeding. The former has produced a subculture of mental-gunslingers with technical degrees who ask questions, use methodologies and provide answers most favorable to “the client.” Opponents will then enlist their own high powered guns to shoot down the other side’s science. In this context, regulators need their own scientific expertise or an objective outside, third-party review to make an independent judgment about who’s information is correct. “In-house” scientific expertise is essential in an adversarial context to deal with “outhouse” science. In the non-adversarial decisionmaking context, scientific inquiry usually proceeds by agreement among the participants about what information is needed. In this situation, the science is usually more “objective ” or result-neutral. That is not to say subjectivity will not play a role or that scientists will always agree among each other. On the contrary, scientists are quick to admit they often disagree with their brethren. However, whatever tilt or disagreement there is will 17 Surfside Colony Ltd. v. California Coastal Commission (1991) 226 Cal.App.3d 1260; See Also Lucas v. So. Carolina Coastal Council, ibid. 18 Nollan v. California Coastal Commission (1987) 483 U.S. 825 (97 L.Ed.2d 677, 107 S.Ct. 3141)
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium be based on the individual scientist’s view of the world and not that of “the client.” Others There are many other actors in the arena of coastal and ocean resources planning and management who are policy-implementors. For example, non-governmental organizations, developers, and governmental entities in the business of using coastal and ocean resources (e.g., port districts, local governments, special districts, state highway departments) are, in one way or another, involved with policy implementation. They too turn to science to assist them with their policy implementation strategies. Again, both subtle and obvious differences in roles exist that affect the type of scientific information that is wanted and used. Environmental groups usually want scientific information that will help them advance or enforce a particular environmental policy. Developers usually look for (read, pay for) and expect, scientific information that “proves” how their project complies with and therefore implements a particular environmental policy. The ongoing debate over the implementation of the Endangered Species Act is a good example.19 This not surprising phenomenon is a primary reason why self-monitoring in cases where highly technical standards must be met (e.g., environmental pollution controls) is ineffective in so many cases. Based on considerable experience, it seems to me that independent monitoring is the only reliable method to ensure compliance with regulatory requirements. Public entities, such as port districts, usually seek accurate and credible scientific information and then keep their institutional fingers crossed that it will show how their project is, or can be modified to be consistent with existing environmental policies. Again, the kind and quality of the information wanted depends on the context in which it will be used. Because there is usually no agreement on the context of the application of science, its use is not seen as a means to achieve a 19 See Los Angeles Times, “Gnatcatcher a Distinct Subspecies, Experts Say,” Pt. I, p. 3, 9/24/92 regarding whether the gnatcatcher of Southern California should be listed as an endangered species - the developers say no and argue that the Southern California gnatcatcher is not genetically different from a larger population of gnatcatcher found in Mexico while the environmentalists argue it is a separate and distinct subspecies of songbird and should be protected. The argument may miss the point because geographically isolated populations of the same species or subspecies should be protected as well.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium California’s shores—they depended upon access to waters offshore of other nations, in Latin America, and so were adamantly opposed to any extensions of territorial waters in the United States that would serve as precedent for similar action by other nations.61 Schaefer managed to get the issue buried at the 1966 GACOR meeting. 62 Every GACOR initiative, it seemed, thus awakened jurisdictional rivals or interest groups to defensive action. Meanwhile Governor Brown indicated the importance of coordination with the federal oceanographic programs, as they were emerging from President Lyndon Johnson’s executive offices and from Congress.63 By the late months of 1966, Congress had passed the Marine Resources and Engineering Development Act, which provided for a major national study of ocean issues by a blue-ribbon commission; and the National Academy of Sciences Committee on Oceanography had published a major report on oceans research. Meanwhile Congress was also moving ahead with development of legislation for a national Sea Grant educational and research program.64 With a virtual stalemate on GACOR recommendations evident in Sacramento in the waning days of Governor Brown’s administration, the dissipation of GACOR’s influence had already become evident when, in 1967, Ronald Reagan succeeded Brown as governor. The GACOR chairman complained to the Lieutenant Governor that the commission had not even received adequate reports from line agencies on the status of its recommendations, rendering the job of effective advising all the more difficult.65 61 See, inter alia, Bobbie Smetherman and Robert M. Smetherman, Territorial Seas and Inter-American Relations (New York, 1974). 62 Francis Christy to Schaefer, June 3, 1966, and reply, June 6, 1966, GACOR Papers, SIO Archives. 63 On the policy changes of this period in Washington--a period of ferment and new initiatives in ocean policy--see Edward Wenk, Jr., The Politics of the Oceans (Seattle and London, 1972); and Harry N. Scheiber and Chris Carr, “Constitutionalism and the Territorial Sea,” Territorial Seas Journal 3:67-90 (1992). In a letter to Milner Schaefer, April 29, 1965 (GACOR Papers, SIO Archives), Governor Brown expressed his concern for coordination with federal studies. See also note 65, infra. 64 All these initiatives were discussed in GACOR, Proceedings of the Sixth Meeting, Dec. 19-20, 1966. See also Edward Wenk, Jr., The Politics of the Oceans (Seattle and London, 1972); Harry N. Scheiber, “Since the Stratton Commission Report: Policy Studies in Ocean Governance, ” in Ocean Governance Study Group, Ocean Governance: A New Vision, ed. B. Cicin-Sain (University of Delaware, 1992); and McEvoy, Fisherman’s Problem, p. 222. 65 GACOR, 2nd Session, Proceedings of the Third Meeting, Oct. 21-22, 1967.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium Further complicating the ongoing process of policy advising, the legislature created a new commission—designated as the Advisory Commission on Marine and Coastal Resources, known as “CMC”—in September 1967. Wilbert Chapman was named as its chairman. The CMC was to supersede GACOR, which would hold in November a final meeting at which its cumulative policy recommendations would be summarized and submitted.66 Interest-group representation rather than mobilization of specialized expertise seemed to be the underlying principle of the new organization: the CMC was a large body, with thirty-six members from industry, recreation and sports activities, government agencies, and science. Its funding was sadly deficient from the outset, as Governor Reagan exercised his line-item budget veto authority to cut its appropriation from $60,000 to $35,000; and it lacked adequate independent staff. In sum, from its genesis, the CMC was disadvantaged by the manifest fact, as Chapman observed, that “every soul in Sacramento did not want such a Commission … to be established, and if it was established over their opposition, did not want it to be effective.”67 Subsequently Chapman lobbied tirelessly to obtain adequate staffing and funding for CMC, but these were denied him. In leading the CMC, Chapman insisted that no matter how hot “the naked flames of political activity” in Sacramento, the commission must maintain a nonpartisan stance. While trying to distance his project from partisanship, however, Chapman simultaneously sought to develop close working relationships with Governor Reagan’s administrative staff and with the state line-agency bureaucracies. This mode of operation, Chapman thought, was essential if the CMC was to avoid unnecessary confrontation. Indeed, he regarded the failure of GACOR to carry its recommendations more successfully as resultant from its taking too strongly a “nuisance” role in forwarding its recommendations, giving insufficient attention to the cultivation of agency and gubernatorial support. To be effective, Chapman declared, CMC as a “group of independent experts” had to remain within its proper sphere: “I assume,” he wrote, that the prime responsibility of CMC is advisory. It is not operational at all.... Its function is to view the ocean-oriented activities of the State in the 66 GACOR, 2nd Session, Proceedings of the Third Meeting, Oct. 21-22, 1967, passim. 67 Chapman, Circular letter to CMC Commissioners, March 12, 1969, Advisory Commission on Marine and Coastal Resources (CMC) Papers, SIO Archives. Some of the material in the following several paragraphs follows closely from Scheiber, “Pacific Ocean Resources, Science, and Law of the Sea: Wilbert M. Chapman and the Pacific Fisheries,” Ecology Law Quarterly 13 (1986):383-533.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium light of its combined expertise from the educational, scientific and technical worlds … and advise on the need for programs, the manner and speed with which those are carried out, etc., in respect to the overall utilization of marine and coastal resources by the people of the State and their Government. The commission needed to keep itself “sufficiently in tune with state government to be able to communicate with it.”68 Moreover, Chapman was keenly concerned that California state policy be articulated as quickly and effectively as possible, in light of efforts going forward in Washington to develop national policy initiatives in ocean affairs. The existence of a national ocean policy commission (the Stratton Commission), which was proceeding with its studies while the CMC effort was gearing up in California, made it all the more important, Chapman urged, for “expressing our opinion and judgment at every opportunity,” in hopes of influencing the course of national policy.69 Despite potentially deep cleavages within the commission on policy issues, and despite its political difficulties in Sacramento, the CMC—initially under Chapman and then under his successor, the prominent California attorney Robert Krueger—developed a set of recommendations on coastal, onshore, and marine development that advanced dramatically in public discourse the concept of scientific study, legal jurisdiction, and administration and management of the coastal zone as an social and ecological system. This was to become the comprehensive framework, in effect, that California would adopt in 1972 through Proposition 20 by direct ballot—after the legislature several times failed to reach agreement upon that approach.70 This framework would also become the 68 Chapman to steering committee, n.d. (early 1969), Chapman Papers, University of Washington Libraries. 69 GACOR, 2nd Session, Proceedings of the Third Meeting, Oct. 20-121, 1967, pp. 2-3. On the Stratton Commission, see Wenk, Politics of the Oceans, passim; Ann L. Hollick, U.S. Foreign Policy and the Law of the Sea (Princeton, 1981 ), pp. 187-191; Scheiber, “Since the Stratton Commission Report: Policy Studies in Ocean Governance, 1969 and 1992,” in Ocean Governance: A New Vision, ed. B. Cicin-Sain (Ocean Governance Study Group Report) (Newark, Del., 1992), pp. 19-22. 70 There were strong differences between the Commission and factions in the legislature regarding such issues as whether a statewide administrative agency should be given jurisdiction over coastal zone development decisions, with substate local or regional authorities subordinated--in addition to differences over how far the regulatory power in general ought to be extended to control property interests in the coastal region. (Interview with Robert Krueger, Esq., La Jolla, January 1992; see also Krueger as quoted at note 76, infra.)
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium conceptual basis of national policy in the Coastal Zone Management Act and related legislation from the 1970s to the present day.71 Ironically, it was the failure to win adoption in Sacramento of CMC ’s two core recommendations to the legislature—its proposal for integration of ocean policy responsibilities in a new state line agency, and its support for adoption of a comprehensive “California Ocean Area Plan,” for protection of the coastal zone and more systematic planning of marine resources development—that led an increasingly powerful environmentalist coalition to seek reform of coastal and marine policy instead through the popular ballot in its Proposition 20 drive in 1972.72 * * * It thus became CMC’s enduring achievement, despite its failure to bring the legislature and governor to its point of view, that it did much to educate the voting public in California on the issues relating to the need for new political structures and a parallel approach in science, focusing on the environmental and social realities of the coastal interface area of land and sea. For in that delicate geographic zone, as Chapman later wrote, in the area of “ a few miles either side of the interface between sea and land, … are the estuarine, pollution, multiple-use, aesthetic, industrial, recreation, social, and economic problems so complex, difficult, and interdigitating as to try the patience of Job and the wisdom of Solomon.”73 Chapman strongly believed that these interrelated coastal zone problems should be left to the jurisdiction of the state governments, rather than addressed by national legislation and highly centralized administration. 74 With adoption of Proposition 20 in 1972, following an extraordinarily successful campaign by the activist environmental coalition called the Coastal Alliance, state coastal zone regulation was given the kind of comprehensive 71 Douglas, “Coastal Zone Management,” loc. cit. 72 Ibid, See also works cited in note 74, infra. 73 Wilbert M. Chapman, Statement respecting H.R. 13247: A Bill to Amend the Resources & Engineering Development Act of 1966 (Nov. 17, 1969), copy (Nov. 17, 1969) in Chapman Papers, University of Washington Libraries. 74 Ibid. In 1969 the U.S. Commission on Marine Science, Engineering and Resources (the Stratton Commission) Report (H.R. Doc. No. 91-41, 91st Cong., 1st Sess., 1969), took the same position, contending that “the States must be the focus for responsibility and action in the coastal zone.”
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium charge—embracing environmental conservation and public rights as well as development concerns—toward which the CMC had been pointing in its reports since 1967. Proposition 20 also put the CMC out of business, however, bringing to a close this chapter in the history of science advising in California oceans policy.75 A weary epitaph was written by CMC chairman Robert Krueger, who succeeded Chapman. He attributed the success of Proposition 20 to the failure of the governor and legislature to adopt the CMC recommendations: The fact that CMC’s recommendations on the subject during the years 1969-1972 were not acted upon by either of the entities creating it points up the futility of establishing advisory commissions without political responsibility, and provides some historical background relevant to the enactment of Proposition 20.... It is to be hoped that the Coastal Zone Conservation Plan to be developed under the Act will be consistent with principles developed by CMC....76 Meanwhile the focus of many issues that earlier had concerned the IMR study group, the GACOR experts in both ocean sciences and social science, and the more politically oriented CMC—especially issues of environmental protection, of offshore oil drilling policy, and of management and protection of living resources of coastal marine and shore areas—had become the objects of new federal legislation and newly created agencies. Many of the latter included, of course, requirements for coordination of state and federal plans. Especially important were new federal statutory provisions for “consistency” of federal programs with state plans (a vexed and much litigated feature of law). Also of key importance, especially in the fisheries management area after 1975, were new regional or state-federal structures for policy development and coordination. The larger impact of the GACOR-CMC studies—beyond their contribution to Proposition 20 and the California initiative on coastal resources regulation—lay in their influence upon these and other new approaches to the coastal area being taken by Congress and national agencies. 75 See, on the politics of Prop. 20 and especially the Coastal Alliance and its organization, Stanley Scott, Governing California’s Coast. (Berkeley: Institute of Governmental Studies, University of California, 1975); also, on the post-adoption history, Paul A. Sabatier and Daniel A. Maz, Can Regulation Work: The Implementation of the 1972 California Coastal Initiative (New York, 1983). 76 Transmittal letter, Fifth Annual Report of CMC to Governor and Legislature, April 1973, p. ii.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium The Conundrum of Scientific Advising This discussion of scientific advising in an important phase of modern California oceans policy history suggests a conundrum, with relevance beyond this single state’s experience, consisting of some six elements, as follows: The Dilemma of Incomplete Information: The CalCOFI sardine investigation illustrated a very familiar dilemma in fisheries management—one also encountered in science and policy on a spectrum that would include, for example, the Exxon Valdez cleanup strategy (in which the effect of washing down the shore upon adjoining coastal waters was unknown when the decision had to be made) to the decision regarding the Yosemite burn. As John Gulland, among others, has observed in writing on this dilemma in fisheries management, the danger in delaying the imposition of regulations until there is a “high enough” level of certainty in the scientific research on condition of stocks, is that before that level is reached the sustainable limit may have been exceeded to an extreme. On the other hand, to proceed toward regulation with deficient or inadequate information can cause serious and unnecessary economic losses on capital investment and heavy costs to existing communities and individuals.77 This was the dilemma that CalCOFI scientists and California fisheries specialists faced with regard to the sardine; and by 1953, the tragic result was that the stocks did indeed collapse, not to come back to levels that would support commercial fishing for nearly forty years.78 The Frustrations of Political Entanglement—and the Related Temptation to Go Around the Implementation Problem : So long as the scientists, lawyers, and social scientists of the IMR study group (and those associated with GACOR and CMC) did their research for the commissions—with a view either to formulating specific policy recommendations or else to framing proposals for additional 77 The dilemma of acting on incomplete information has been discussed by John Gulland and others in the standard literature on marine fisheries management. (See Dayton L. Alverson, “Science and Fisheries Management, ” in Rothschild, ed., World Fisheries Policy, p. 211ff., especially at pp. 214-15, quoting Gulland.) For an indictment of management decision-making on an allegedly inadequate scientific basis, lacking (understandably) the political will in the society to invest what is necessary to obtain an adequate level, see F. R. Hayes, The Chaining of Prometheus: Evolution of a Power Structure for Canadian Science (Toronto, 1973). 78 Although marine scientists still disagree strongly today as to whether overfishing was alone responsible for the sardine collapse, or whether instead other natural variables played a controlling part, even those who downplay the overfishing factor admit that it was one of the relevant variables. In 1989, it might be added, the annual CalCOFI conference served at dinner to participants the first California sardines to be canned commercially since the closing of the last plants in Monterey in the early 1950s!
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium research—their roles were well defined: they sought information, systematized and interpreted it, and presented hypotheses and theories as to how it ought to be considered in relation to policy choices. Once their reports moved into the public arena, however, in almost every instance they challenged not only existing premises and substantial policies but also existing governmental structures and agency interests. (Hence Wilbert Chapman’s complaint, quoted earlier, that no one in Sacramento really wanted the CMC to recommend any meaningful reforms.) The reaction—natural enough, certainly an understandable one—was in many instances for the scientists, legal scholars, and social scientists to pull back and try to avoid the growing entanglement in the related politics of turf and substance.79 When bureaucracies are thus challenged, they will (like special interest groups in the private or educational sectors, in similar situations) dig in and seek to apply strategies of cooptation, evasion, or simply head-on resistance. It is certainly easier, in most instances, for expert policy advisers to go back to their laboratories or libraries than it is for them to remain bogged down in combat in the political lists; it is a lower-risk option to withdraw, and it has the advantage of leaving the expert’s time and energies for his or her own core professional concerns. For a few individuals of exceptional energy, persistence, and conscience or commitment (or some combination of these traits), such as Roger Revelle and Milner Schaefer, seeing public policies through to actual reform at times became a matter of first priority.80 The Pitfalls of Naive Faith in Science: The mechanistic and reductionist notion that science, by simply supplying reliable information on an imaginative and thorough basis, can also provide in an almost automatic way the correct policy choices —the “best” policy—is occasionally expressed even by the most competent scientists. It is all too frequently voiced as a routine truth, however, by policy leaders in quest of certain (if not to say magical) solutions to difficult problems.81 79 For two different views of how CalCOFI handled this frustrating problem, compare Scheiber, “California Marine Research,” 75 and 81n.51 (arguing that the scientists’ continuing quest for data and broadening of the research design may be attributed to their definition of roles for themselves outside of political decision-making), with McEvoy, Fisherman’s Problem, pp. 200-203 (where he argues that the scientists acted in their own self-interest without giving responsible attention to the need for intervention to save the sardine fishery stocks). 80 For Revelle, of course, this was especially true of his devotion to building the resources and connections with government agencies of the Scripps Institution. Like Schaefer, Revelle also provided strong leadership to international and national initiatives in science organization and research. Sarah Sharp is editor of a two-volume oral history interview of Roger Revelle, on deposit at the Scripps Institution Archives. 81 See the insightful comments on scientific advising in James W. Rote, “A Strategy for the Comprehensive Management of California’s Marine Resources,” in California Coastal Commission, Ocean Studies Symposium, Asilomar, Nov. 7-20, 1982 (processed, 1982).
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium Governor Brown, as we have seen, expressed a naive faith of this sort in 1964—not only asking too much of the scientists, but also omitting to recognize what experts in related areas outside of natural science could contribute (an omission corrected quickly enough by Schaefer). This sort of naive faith is extremely flattering but also fraught with dangers to scientists who fail—as in dealing with highly complex issues they often will—to deliver the kind of answers that will not only stand rigorous scientific scrutiny but also insulate the policy official from effective criticism or opposition, either in the legislature or out on the hustings! The Minefield Effects of Multi-Level Government: A factor peculiar to policymaking in federal systems, and certainly to the United States, that adds considerable difficulty to scientific advising is the fact that almost any policy recommendation that addresses a significant problem will bring forth opposition based on the rival ambitions, opposed turf claims, and often (as in the case of Outer Continental Shelf drilling) opposed policies of local, regional, state, and national governments.82 Both phases of the California story that we have considered here had elements of these minefield effects; but in dealing with many of the key questions that coastal oceans policymakers face today, in California and in all the other coastal states as well the problems are even more acute since the governments in question—and also the administrative agencies they have created, with their own often-distinctive postures on key policy issues—have had another quarter century to develop their positions. The Perils of Lost Faith in “the Public Interest”: Concern about a misplaced faith in science as having all the “right” answers can all too easily inspire a loss of faith altogether in the idea of the public interest in public policy—that is, in the idea that the common interests of the society can be defined and served by a policy process that will develop rationally justified options for action, systematically appraise the costs and benefits of these options, and make legislators and the electorate generally aware of the implications of policy choices. Scientific information and advice is, in this context, an instrument to be deployed in the quest for definition of policies that seek to transcend, rather than merely respond to, the contending objectives of the self-interested actors in the policy 82 See, e.g., Biliana Cicin-Sain, “Managing the Ocean Commons: U.S. Marine Programs in the Seventies and Eighties,” Marine Technology Society Journal, 16 (1982); and, for a vivid portrayal of policy conflict respecting Outer Continental Shelf resources, Charles F. Lester, “The Search for Dialogue in the Administrative State: The Politics, Policy, and Law of Offshore Oil Development” (Ph.D. dissertation, Jurisprudence and Social Policy Program, University of California Berkeley, 1992).
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium process.83 If, in the resolution of complex issues associated with the coastal oceans, there is often (or even normally) no single “rationally defined ” and easily defensible “right answer,” there is all the more reason to seek to strengthen the process of decisionmaking in a democratic mode. For when atomization of interests occurs at an extreme, and the deployment of science in the policy process is reduced to that of hired gun for special interests, reasoned inquiry and decision are ineluctably crowded out; and there is a tragic potential price to be paid when this occurs—tragic in the loss or abuse of resources and the welfare of biosystems, in the quality of life for human communities, and in the integrity of the governmental process itself in a democracy.84 Thus the enduring accomplishment of the GACOR-CMC effort was to advance the public’s understanding of how coastal and ocean issues could be reconceptualized and then addressed in an integrated way in the public interest. That Governor Reagan and the legislature did not gauge properly the strength of public opinion that had formed on lines consistent with, and ultimately in advance of, the GACOR-CMC view, proved to be only a temporary obstacle to adoption of the new policy and administrative process for coastal management. Of particular interest, in recent years, is the relationship of plebiscitary decisionmaking, as was finally exemplified by Proposition 20, to scientific inquiry and informed examination of policy choices. The California electorate’s vote for Proposition 20, establishing coastal zone management, occurred after many years of scientific and policy debate, well informed by the IMR-GACOR-CMC deliberations and reports, and the responses to them from a host of industrial and environmental organizations, as well as individual political leaders and both political parties. Still, the resort to such a majoritarian solution is hardly itself without its perils. A plebiscitary campaign characterized by thirty-second sound bites in vicious TV campaigns, rather than a full and informed public discussion that confronts the hard choices (clarified for the electorate in a systematic set of investigations by experts), is a destructive and discouraging thing. It is not too much to deem it tragic, qualitatively different in moral and operational terms from, say, the difficulties associated with the dilemma of incomplete information. 83 This is a version of the Brandeisian model, as it may be called, of the optimal goals and methods of policy process. For analysis of how one distinguished legal historian, Willard Hurst, has viewed this model’s success and failures in various phases of American policy history, see comments in Scheiber, “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” American Historical Review, 75 (1970):743-56. 84 For insightful commentary on this problem from a variety of perspectives, see [Jeffrey Martin], “Procedures for Decisionmaking under Conditions of Scientific Uncertainty: The Science Court Proposal,” Harvard Journal on Legislation, 16 (1979):443ff.; and Kenneth J. Shaffer, “Improving California’s Safe Drinking Water and Toxic Enforcement Act Scientific Advisory Panel Through Regulatory Reform,” California Law Review, 77 (Oct. 1989):1211-1258.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium The Joy of Unanticipated Results: The last element of our science advising-policy conundrum that requires our attention provides a much more optimistic perspective on this process than the other elements we have considered. This is the Joy of Unanticipated Results such as the extraordinary advancement of an ecosystemic approach to ocean environments that was achieved in the course of the CalCOFI investigations. In the case of CalCOFI, this was in very considerable measure, of course, the happy product of a hidden agenda that the scientists themselves brought to the enterprise. They had a vision which was consistent with, but very quickly transcended, the immediate purposes of the project as mandated by its political originators. In the case of the IMR-GACOR-CMC history, the experts built on the simplistic charge given them by the governor to advance a sweeping reconceptualization of coastal zone systems, studies, and management, with enduring effects on both science and policymaking that have given the field its basic framework from that day to the present. Engineers on the big federal projects are at pains to specify their hopes for “civilian spinoffs” from aerospace, military, and naval programs—usually without specification in advance; this is an institutionalized recognition from the operational side of the possibilities, so familiar to scientists engaged in advising, that unanticipated results can sometimes be far more important than the planned objectives. Attention in U.S. and international policy circles has begun to focus again, as happened in the late 1960s and early 1970s, upon coastal and ocean resource management issues—impelled this time by the grave implications of the evidence concerning exhaustion of fishery stocks, ozone depletion, possible global warming, and changing sea levels, with debates intensified by the new political prominence of environmental-protection policies in America and globally. Especially so in light of the 1992 UN conference on the environment at Rio—at a time of prolonged economic recession and regional crises.85 As political conflict and policy deliberations in this area assume new configurations, both the cautionary and the hopeful elements of the conundrum that have been described here may be well worth pondering as a lesson from one American state’s experience in a crucial period of ocean-resources policy development. Acknowledgements The author is grateful to Professor Victoria Saker Woeste of Amherst College, who while serving as a California Sea Grant trainee in the Center for the Study of Law and Society, UC Berkeley, contributed to research for this study on 85 See, e.g., Luc Cuyvers, Ocean Uses and their Regulation (New York, 1984); and Biliana Cicin-Sain and Robert Knecht, “Implications of the Earth Summit for Ocean and Coastal Governance, ” in Ocean Governance: A New Vision, ed. Cicin-Sain, pp. 17-19.
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Improving Interactions Between Coastal Science and Policy: Proceedings of the California Symposium the 1965-1972 commissions. Published collaborative work by the author and Professor Arthur McEvoy of Northwestern University, as well as McEvoy’s book, The Fisherman’s Problem, cited in the notes, provided essential background on the CalCOFI project. The author is also indebted for suggestions and criticism to Ms. Deborah Day, head of archives at the Scripps Institution of Oceanography Library; Professors Biliana Cicin-Sain and Robert Knecht, University of Delaware; Dr. James Sullivan, Director of the California Sea Grant College Program; Peter Douglas, Director of the California Coastal Commission; Robert Krueger, Esq., of San Diego; and the late Robert Kelley, Professor of History, University of California, Santa Barbara. Research for this paper was supported by the California Sea Grant College Program, under a grant to the Ocean Law and Policy Program, Center for the Study of Law and Society, University of California, Berkeley.
Representative terms from entire chapter: