Mapping, Modeling, and the Fragmentation of Environmental Law

• Date: 01 August 2015

45 ELR 10796 ENVIRONMENTAL LAW REPORTER 8-2015

H O N O R A B L E M E N T I O N

Mapping, Modeling, and

the Fragmentation of

Environmental Law

by Dave Owen

Dave Owen is a Professor at the University of California, Hastings.

Over the pa st four decades, increased data avail-

ability, new software systems, and exponentially

greater computing power have combined to turn

spatial analysis—that is, quantitative analysis of data coded

to specic geographic coordinates—into the coin of the

environmental realm. ousands of analysts in dozens of

elds now spend their days gathering and crunching spatial

data. eir eorts serve a wide variety of purposes a nd are

leading to new ways of conceptualizing ecological systems

and environmental change.

e emergence of spatia l analysis merits revisiting

environmental law’s traditional debates about integrative,

holistic decisionmaking. Spatial analysis can facilitate bet-

ter assessments of the cumulative environmental conse-

quences of activities dispersed across space and time. By

enabling analysts to simultaneously evaluate a variety of

environmental impacts, spatial tools and models can allow

concurrent pursuit of multiple environmental goals. And

by producing maps, which are a compelling and acces-

sible means of conveying information, spatial analysis

can improve communication among the many entities

involved in environmental policyma king. In short, spatial

analysis ca n facilitate more integrative approaches to envi-

ronmental law.

Despite that potential, legal thinkers have devoted little

attention to spatial analysis. Even as other research elds

move toward quantitative ana lysis based on spatial data,

environmental law research remains largely the domain

of qualitative argument, often grounded in intuition and

anecdote and delivered exclusively in prose. is Article

argues for bridging the divide between spatial analysis

and environmental law by exploring some of spatial analy-

sis’s implications for environmental law. Using land use

as a centra l ex ample, it explains how spatial analysis can

change which environmental problems we nd cognitively

tractable, what tools we use to address those problems, and

to whom we allocate authority to respond. It nishes with

a focus on legal research, explaining how spatial analysis

could generate more empirically grounded and practica lly

useful academic inquiries about environmental law. Spatial

analysis technologies are by no means perfect tools, a nd

they can su er from the opacity, manipulability, and false

certainty that plague any complex and quantitative mode

of analysis.1 But despite certain limitations, the emergence

of spatial analysis is an important, and potentially quite

positive, development for environmental law.

I. The Emergent Geocoded Age

From climate change to wildlife management, models now

pervade almost every sub-eld of environmental decision-

making. Many of those models draw upon spatial data,

and many produce spatially explicit outputs—which then

can be used as input d ata by other models. ese models

add a whole new power to spatial analysis. Rather than just

delineating the location of current landscape features, or

teasing out causa l relationships based on data about past

events, they allow environmental ma nagers to oer spa-

tially explicit representations of possible futures.

While technologic al advances allow spatial analys ts to

do remark able things, those adva nces are not an unqua l-

ied good. A ny increase i n the technolog ical sophist ica-

tion of decisionma king creates the threat of overreliance

on te chnolog y at the expense of common sense. Quan-

1. See generally Kenneth A. Bamberger, Technologies of Compliance: Risk and

Regulation in a D igital Age, 88 T. L. R. 669, 675-76 (20 10) (describ-

ing the role of autom ated risk modeling software in the 2008 nancial

collapse); James D. Fine & Dave Owen, Technocracy and Democracy: Con-

icts Between Models and Participation in Environmental Law and Planning,

56 H L.J. 901 (2005) (recognizing “many sources of uncertainty”

inherent in complex modeling systems) ; Wendy Wagner et al., Misunder-

standing Models in Environmental and Public Health Regulation, 18 N.Y.U.

E. L.J. 293 (2010) (highlighting a common misperception of complex

models as “truth machines”).

e full version of this Article was originally published as:

Dave Owen, Mapping, Modeling, and the Fragmentation of

Environmental Law, 2013 U L. R. 219 (2013). It has been

excerpted and updated with permission of Utah Law Review and

Dave Owen. Please see the full article for footnotes and sources.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.