Last week’s New York Times Sunday magazine had two interesting articles that have relevance for environmental law and policy, specifically about how environmental law deals with uncertainty.

The first one has an obvious connection: It’s about Arlene Blum, a chemist (and mountain climber!) who is leading a campaign to end a legal mandate that requires all upholstered furniture in California to contain fire-retardant chemicals, chemicals that might have significant adverse health risks.  Because of the size of the California market, and the economies of scale in furniture manufacturing, the California mandate effectively applies to all furniture sold in the United States.

What was fascinating to me was the use of uncertainty in the policy debates over whether to repeal the mandate.  Environmentalists have been regularly accused of resorting to scare tactics in calling for the removal or banning of chemicals.  There is (almost always) significant uncertainty about whether a particular chemical causes cancer or other harmful effects in humans, but critics have alleged that environmentalists gloss over that uncertainty, play up the risks, and ignore the nuance in the debate.  Perhaps the most notorious example of this was the debate over the use of the chemical Alar on apples ...

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