I am struck by a difference in perspective between the panel and the appellate body with respect to the role of scientific expertise in advocacy. The panel seems to believe in the reliability and credibility of scientific expertise and thereby downplays the risk that science can be subverted to bolster policy choices resting on extrascientific considerations. It depends on the culture of the scientific community to validate and falsify claims, independent of the institutional interests of the particular actor. Hence the failure to regard the prior authorship of official international studies as a basis for a conflict of interest sufficient to require exclusion of the two experts. And also hence the the argument that once a critical mass of scientific opinion had coalesced around a particular position, only especially significant and persuasive new research can suffice to disrupt that consensus and create a new insufficiency of evidence under 5.7. The Appellate Body, by contrast, seems to understand the tendency of scientists to invest in their prior positions. commitment to the scientific method notwithstanding, and therefore to regard criticism as bad science. In this sense, the panel seems wedded to old-fashioned modernism, while the Appellate Body smacks of Kuhn.
What does this mean for the next step in the dispute? The next panel to consider the case will have to undertake an independent assessment of the validity of the scientific research on which the EC rests its judgment that no scientific consensus exists about the validity of a risk assessment relevant to its higher risk avoidance standard. In undertaking this task, it will not be sufficient to count noses and determine whether a sufficient number of credentialed scientists discount the views of the skeptics. Given that the panel comprises lawyers rather than scientists, however, I wonder what this independent assessment will look like. If the panel cannot do the science itself, on what kind of proxies can it rely to determine whether consensus has been disrupted or not?
