Growing up on a polluted river set a young Wendy Wagner on her path toward grappling with how environmental science and policy interact.
Now a leading authority on the use of science by environmental policymakers, Professor Wagner is the Richard Dale Endowed Chair in Law and studies the design of administrative process, with particular attention to environmental policy and science-intensive regulations. She also teaches Texas Law classes on environmental law and torts.
“My research has always been interested in institutional design: How we can structure administrative agencies in the regulatory process to bring out the very best facts, information, and science,” Wagner says. “And to make sure that the policy judgments are accountable, so that certain sectors—like industry—aren’t monopolizing the process, but that the choices are visible, so even if the public isn’t making them, at least everyone knows what they are.”
Wagner earned a bachelor’s in biology at Hanover College in Indiana and both a master’s in environmental studies and a law degree from Yale University, where she was senior editor of the Yale Law Journal and managing editor of the Yale Journal of Regulation. She then clerked for the Judge Albert Engel of the U.S. Court of Appeals for the 6th Circuit and practiced law for four years, first as an honors attorney in the Civil Enforcement Section of the Department of Justice’s Environment and Natural Resources Division, and then as the pollution control coordinator with the Department of Agriculture’s Office of the General Counsel. Wagner taught at Case Western Law School and was a visiting professor at the Columbia and Vanderbilt Law Schools before joining the faculty at Texas Law.
Her work has won multiple awards, including the Hamilton Grand Prize for the best book published at The University of Texas at Austin in 2009 and the 2018 American Bar Association Award for Scholarship in Administrative Law. Her next book tentatively titled “Agencies in Shackles” is being co-written with Texas Law Professor Tom McGarity.
Beyond campus, Wagner has served or is serving on several National Academies of Science committees, the Bipartisan Policy Center Committee on Regulatory Science, the National Conference of Scientists and Lawyers (AAAS-ABA Committee), the Administrative New Scholarship Roundtable, and as a consultant to the Administrative Conference of the U.S. on a project on the agencies’ use of science.
Wagner recently shared the childhood experiences that spurred her research passions, the challenges for environmental policy, why consumers should be concerned about the issues she studies, and her enthusiasm for working with Texas Law students.
What inspired your research focus?
My research interests grow out of the passions and curiosity I had as a child. I loved nature, but I grew up in a very polluted area—a suburb of Chicago a little south of Gary, Indiana, where there were a lot of steel mills—so I was concerned and slightly obsessed with trying to understand the ways that pollution was impacting health and the environment. In fact, there was absolutely no pollution control over the Little Calumet River where I let my tadpoles out every year. Sometimes they would go belly up when they hit the water.
That drove my education: I majored in biology, got advanced training in environmental science, and ultimately went to law school to think more about the policy aspects.
Have there been environmental improvements where you grew up?
I try not to go back to the region too often. The steel mills had to shut down for competitive reasons, so there’s much less pollution going into the environment, but it is still very polluted. My little river is now a Superfund site that has yet to be cleaned up. Other Rust Belt areas are dramatically better, however. For example, Lake Erie and the Cuyahoga River were so polluted in the 1970s that people who lived on the water only recreated in their front yards, not in their backyards facing the water, because it was so smelly, and the fish were all dying. And now, it’s prime real estate to live on Lake Erie, and there are recreational boats on the water and swimming all summer long.
So, improvement is possible. Considering your scholarship, what questions do you look to address?
I’m trying to understand how we make decisions at the regulatory and legislative levels to protect the environment. Who are the players? How do we factor in the science and make sure that it’s reliable? How do we protect against heavy industry involvement that can eclipse the role of the public? How does the public meaningfully engage given how enormous our institutional apparatus is? My research tends to look at administrative law issues that come out of that fascination I’ve had since I was a child.
I also look at how we’ve designed environmental laws—in what ways they may be incomplete or may be doing well—and I then try to assess them substantively.
Can you describe your newest research?
One article looks at the institutional architecture designed for science, environmental, and health protection. When I started studying how we’ve designed administrative processes, it alarmed me—the institutional structure makes it very difficult to be assured that the agencies producing science in the public health and environment space can be trusted. There is nearly unlimited control by the president and appointees over the science before it’s ever recorded or made public, and there is almost unlimited pressure from industry groups on the agencies. That’s institutionally reinforced by our rules of judicial review and the ways we’ve set up the system.
Rather than check those biases, the system is set up to exacerbate and compound them. Plus, the peer review systems are again controlled by political appointees. So, we have no idea whether the research is manufactured, cherry picked, or whether it’s legitimate. A lot of the agency science may be reliable. But we have no way of knowing.
That’s tough to hear. Are the issues you track changing for the better or worse?
Over the last 30 years, these problems have been getting worse. Things are less transparent, it’s harder to know what the policies are, who made them, and that the facts are reliable.
Many of the problems I have been researching for a very long time are structural problems, so adjusting at the margins or tweaking some laws isn’t going to address them. But structural reforms are not out of the question and would make a huge difference in ensuring the fair and effective application of our laws in ways that produce greater public benefits.
Outside of academia, who should be paying attention? Who’s most seriously impacted?
Effectively, we have no meaningful oversight of chemicals in consumer products that potentially cause long-term harms. So, if I was a consumer, I would be concerned. The biggest risks from products and pesticides are to children, infants, and in utero in ways that are dramatic and get passed through the genotype. We’re seeing changes to our genetics as a population that are likely to get worse until we get meaningful regulation of products on the pollution front.
Still, we’ve made enormous strides in our laws and regulations over the last 50 years. We have so much to celebrate, including drinking water safety, and some states are trying to address shortfalls. They owe it to their citizens to improve conditions in industrial areas, like Louisiana’s “Cancer Alley.” But regrettably, some states are really digging in their heels and doing the opposite. In states resistant to environmental protection, the poorest communities and communities of color are going to bear the highest burdens by several orders of magnitude.
Does knowing that influence your own behaviors and buying decisions?
There are about 40,000 chemicals actively sold in commerce, very few of which have been meaningfully tested. So, we really don’t know much about the chemicals in products or that go into the environment. The group of chemicals known as PFAS is leading to many billions of dollars of expense just in the United States, it’s a similar disaster globally, and I think we’re only at the tip of the iceberg. We only learned about PFAS because of a tort lawyer accidentally discovering them, which is the subject of a great movie called “Dark Waters.” Unfortunately, there are tens of thousands of other chemicals we know nothing about—for example, how they are used, where, or by whom. We only that they’re actively sold in commerce. A lot of this critical information is classified as trade secrets. But, for health and environmental protection, there’s no way to protect against what you don’t know. PFAS is unfortunately a reminder that we may be exposed daily to numerous chemicals that may turn out to be toxic decades from now. In truth, the brokenness of our chemical regulatory laws can’t be overstated.
Unfortunately, this field is very depressing. But as a researcher, depressing makes you feel like you’re working on a good topic.
Right, this work matters so much. Do Texas Law students play a role in your research efforts?
Yes, and they are helpful in all aspects. In addition to researching what’s going on in this space or the support for a claim, students have identified new avenues I didn’t even know existed. But the place that Texas Law students are particularly invaluable is on the frontiers, with trying out new avenues or new ways to frame things. They’ve helped critique my proposals for reform and my diagnostic work, and they go at it like colleagues, although they get paid much less than colleagues. The students have been fundamental to my research in the classroom as well through their amazing questions and making connections I hadn’t considered.
Meanwhile, you’re currently co-writing a book with Tom McGarity that’s due to publish in about two years. How do you describe it?
The book looks at institutional design. There’s a common misperception, even within academia, that agencies have a great deal of discretion to do almost anything. The book tries to throw some cold water on the conventional understanding of agency discretion, because we detail many ways that the agencies are in reality heavily shackled by various laws and legal processes; indeed, the agencies often have surprisingly limited discretion to do even the most fundamental tasks. If you just read the statute, you would think the agency has enormous amounts of discretion, and that’s where most people stop their inquiry. But our book walks behind the scenes and tracks all these different ways Congress, the executive branch, and the courts have placed limitations and constraints on agencies.
Tom and I have been alarmed as we trace out the shackles. When you start to look for them, they’re everywhere. So, the book raises questions about a whole variety of ways that we establish and think about administrative law. Hopefully it has larger theoretical implications. It also tries to make the readers—who we’re hoping include more than academics—start to appreciate how many invisible levers there are to control agency progress. Agencies often fail not because they lack the staff or expertise, but because they’re invisibly constrained, usually by a sophisticated party that benefits from agency inaction.
Turning to your efforts in the classroom, how does your research influence your teaching? Or vice versa?
In my seminar classes, I teach around the research puzzles that I’m confronting. We don’t discuss my research agenda, but I float trial balloons: I get student reactions ranging from, “This isn’t very interesting,” to “This is exciting and more complex than I thought.” The discussions have been invaluable, and I usually get more excited about the research—which is hard for me to get even more excited about—so I leave feeling pumped to do the project. I get great ideas from the students, and often I’m caught by surprise. “Oh, that’s a new insight I hadn’t even thought of!”
In my advanced environmental law class, I always get helpful ideas. Often, the class seeds future projects that it might take a year or two to reach, but they start me down new trails of investigation and obsession.
It sounds like you enjoy teaching!
From the standpoint of a teacher, we have the best student body. At Texas Law, because the students are prepared and really want to do well, they tend to be very curious and collaborative in the classroom. So, we’re all going at this challenging material together, not only to try to make sense of it, but to ask hard questions. In the classroom, students have just the right mindset about understanding, having fun, and elevating the material through their insights. Ideally, in classes where we get above the material, we see it in new ways or at least make sense of all these little pieces in a way that might not have been evident before. Our students tend to be totally up for the game of learning together.
The students also have the right attitude about each other. So, students become lifelong friends and see their classmates prosper in ways that help everyone. It’s a positive thing, both in the short term and in the long term.