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43 Envtl. L. Rep. News & Analysis 10695 (2013)
The Problem of Environmental Monitoring

handle is hein.journals/elrna43 and id is 735 raw text is: A R T I C L E The Problem of Environmental Monitoring by Eric Biber Eric Biber is a Professor of Law at the University of California, Berkeley, School of Law. nvironmental law depends on the regular collec- tion of accurate information about the state of the natural environment (ambient monitoring) in order to assess the effectiveness of current regulatory and management policies and to develop new reforms. Despite the central role that ambient monitoring plays in environ- mental law and policy, the scholarly literature has almost ignored the question of whether and how effective ambi- ent monitoring will take place-even though there is ample evidence that our current ambient monitoring data has significant flaws. Moreover, the importance of ambi- ent monitoring will increase in the future with the shift to a new paradigm of adaptive management in which reg- ulatory decisionmaking is kept purposefully flexible for future adjustment. There are a few key characteristics of ambient monitor- ing that make ensuring high-quality monitoring particu- larly challenging. First, the geographic and temporal scale of an ambient monitoring program will often be much larger than the scale of the actions of most private parties, such as regulated industry. This means that effective ambi- ent monitoring will usually need to be pursued by public agencies. Second, ambient monitoring usually must be pur- sued continuously over an extended period of time if it is to be effective. Third, ambient monitoring has to be focused on the right questions that are necessary for environmen- tal decisionmaking; measurements have to be made at the right geographic and temporal scale; and, enough data has to be collected to meet minimum requirements for statisti- cal analysis of the data. All of these requirements are dif- ficult to meet. They are also difficult for outside parties to assess whether they have been met. Thus, effective moni- toring programs must be continuous over time, and they are often opaque to outside supervision or accountability. They are also frequently costly. Continuity and opacity mean that ambient monitoring programs must overcome a range of legal, political, and institutional obstacles. For instance, continuity and opac- 7he full version of this Article was originally published as: Eric Biber, 7he Problem of Environmental Monitoring, 83 U. CoLO. L. REv. 1 (2011). It has been excerpted with permission of University of Colorado Law Review and Eric Biber. ity mean that it is usually quite costly and difficult for outside groups to assess whether a monitoring program is effective. The parties with higher stakes (often regulated industry) therefore usually have an advantage in supervis- ing monitoring programs compared to the general public. The long-term and costly nature of monitoring programs means that monitoring budgets are often the first cut when hard times hit. Courts generally defer to the monitoring data produced by agencies because of the daunting nature of the expert knowledge needed to evaluate that data; this deference can encourage substandard information collec- tion by agencies. Public agencies might be wary of collect- ing ambient monitoring data because better environmental information might allow outside actors to hold the agency accountable, might produce political or legal pressures that conflict with the goals the agency wishes to pursue, or might reduce the discretion the agency has in decision- making. Finally, the long-term nature of ambient moni- toring means that monitoring is frequently professionally unrewarding for the scientists that are key staff in many environmental agencies. How might we try to solve the problems of ambient monitoring in environmental law? One of the more prom- ising solutions is to rely on public agencies that are primar- ily focused on monitoring. Public agencies are more likely than other alternatives to have the institutional continuity to undertake effective long-term monitoring. Public agen- cies that primarily focus on monitoring also can develop the expertise needed to deal with the technically difficult tasks of monitoring. Their focus on monitoring can create strong institutional incentives for them to do a good job in conducting effective monitoring. With a separate agency, we have an institution with an incentive to conduct effec- tive monitoring because of administrative separation from other potentially conflicting activities. A large organization that combines monitoring with other tasks might, if budget cuts come, cut monitoring budgets disproportionately in order protect other jobs. Cuts may be worse to the extent that monitoring is disfavored within an agency (perhaps because of potential conflicts with the agency's mission). If the only activity the agency pursues is monitoring, then there is no such possibility for NEWS & ANALYSIS 8-2013 43 ELR 10695