INTRODUCTION II. A LAWYER'S INTRODUCTION TO ENVIRONMENTAL MONITORING AND GENETIC MONITORING A. The Science of Monitoring B. Introduction to Genetic Monitoring for Lawyers, and Why It Matters III. APPLICATIONS OF GENETIC MONITORING IN U. S. FEDERAL ENVIRONMENTAL LAW A. Solving the Data Problem: Three Genetic Monitoring Applications Under U.S. Federal Law 1. Genetic Monitoring, Public Health, and the Clean Water Act 2. Improved Stock Assessment Under the Magnuson Stevens Act 3. Tracking Invasives and Monitoring Endangered Species B. Solving the Model Problem: Measuring Human Impacts 1. Cumulative Impacts Under the National Environmental Policy Act IV. Implications of More, Better, Cheaper, and Faster Monitoring for Agency Behavior A. Cheaper Data Means More Budgetary Flexibility B. Data Has Political Value C. Impacts to Substantive Agency Decisions V. SO WHAT? TURNING DATA INTO INFORMATION VI. CONCLUSION I. INTRODUCTION
Natural resource management of any kind faces twin challenges. First is the "data problem," in which we lack the raw observational data one might want before making a decision. (1) For example, data on fish distribution, abundance, and catch rates are simply absent for many fisheries, making it difficult to assess the status and trends of such data-poor fish stocks. (2) The second, related challenge is the "model problem," in which we have a less-than-optimal understanding of the ways in which the world's living resources are interconnected, including the crucial interactions between human activities and their environmental effects. (3) Developing such an understanding--i.e., a working model--of ecosystem structure and function depends upon the existence of raw data, as well as upon the secondary understanding of the data collected, and hence the second challenge is nested within the first.
As costs of gathering data rise, both challenges worsen and ultimately become insurmountable. At the extreme, where data (4) is infinitely expensive, we can know nothing new about the world's resources, and so all decisions are made in the dark. How many fish there are and how quickly they reproduce; where natural gas deposits or sites that maximize wind energy are located; how frequent hurricanes have been historically and might be this year, and so on--we would make all decisions without any of these kinds of data. (5) We would accordingly lack the essential feedback mechanism of environmental policy, i.e., the ability to gauge the effect of management decisions on their target natural resources.
It is more difficult to say what the effects of decreased data costs on management might be. What does a world of high-quality, inexpensive data look like? (6) Answering this question depends upon the particular purposes for which we gather data in the first place. Professor Eric Biber has discussed two ends of an information-gathering continuum, ambient monitoring and compliance monitoring, distinguished by their purposes: "The monitoring of 'ambient environmental conditions,' i.e., the state of the environment at the local, regional, national, or global scale, contrasts with 'compliance monitoring,' which focuses on compliance with a legal standard or regulation." (7) Hence, both enforcement of environmental laws, via compliance monitoring, and basic understanding of earth and ecosystem processes, via ambient monitoring, depend upon sustained efforts to gather environmental data.
Past waves of emerging technology have made both ambient and compliance monitoring more powerful and more attractive to the federal agencies most strongly associated with environmental management. Satellite tracking and other remote sensing technologies, for example, have made possible compliance monitoring of waste transport and automobile emissions, (8) while the same techniques have driven fundamental improvements in environmental sciences via ambient monitoring of climate and other earth processes. (9)
These historical advances in monitoring have tended to focus on physical and chemical measurements such as sea surface temperature, speed and direction of surface currents, atmospheric pressure patterns, and so on. (10) Biological data--on which decisions about natural resources use and management often turn--have tended to lag behind, in part because of the difficulty of gathering information about the living world. (11) However, genetic monitoring techniques now coming to the fore are likely to drive the cost of biological data downward, making biological monitoring both cheaper and more effective. Improving the resolution and cost-effectiveness of biological data speaks to both ambient and compliance monitoring; my purpose in this Article is to illustrate why this matters.
These emerging techniques use deoxyribonucleic acid (DNA) collected from the environment--water, dirt, etc., and collectively known as environmental DNA (eDNA)--to detect and perhaps quantify the species living nearby. (12) Although recovering tiny quantities of species' invisible genetic material from surrounding habitats may sound like science fiction to a lay audience, research groups around the world are making real-world eDNA monitoring applications a reality. This includes work on applications such as detecting invasive species, (13) counting hard-to-find endangered species in the wild, (14) and detecting human pathogens in waters near the beach. (15) These advances offer an unprecedented look at the environments upon which humanity depends.
Genetic monitoring is likely to make biological monitoring much more powerful than the present labor-intensive methods of manual biological surveys--for example, for fisheries' stock assessments, or detecting invasive species in ballast water. As genetic methods pass out of research labs and into practical use--as is already beginning to happen (16)--genetic surveys will offer a less-invasive, easier alternative to many forms of data collection about the living world. And because the costs of sequencing continue to plummet, genetic methods will very likely be the cheapest means of biological sampling.
This Article therefore focuses on the implications of more, better, and cheaper environmental monitoring for U.S. law and policy. I focus the discussion on laws relevant to the marine environment, which is generally a challenge to monitor because of its size, complexity, and hostility to instrumentation, (17) but virtually all of the following discussion applies to the collection of environmental data more generally. In Part II, I briefly review the science behind monitoring as an enterprise and behind genetic monitoring tools more specifically, to the extent this science is relevant for understanding the legal and policy implications of these emerging methods. Part III then looks at environmental monitoring applications under selected U.S. statutes, addressing key shortfalls in data collection and in linking human actions to their environmental consequences. Parts IV and V put these applications in a broader context of administrative law and the political realities of environmental management. (18) Part VI concludes by linking the foregoing discussion to the larger goals of environmental management. Throughout this Article I ask whether new tools help to solve the data and model problems, and if so, whether this is likely to lead to better substantive outcomes for natural resource management.
A LAWYER'S INTRODUCTION TO ENVIRONMENTAL MONITORING AND GENETIC MONITORING
This Part provides the scientific basis for the remainder of the Article, briefly surveying the relevant techniques of environmental monitoring for a legal audience.
The Science of Monitoring
Monitoring has long been the neglected stepchild of basic science, with many research scientists seeing monitoring as far from the front lines of "real" research. (19) The distinction goes as follows: basic science tests hypotheses about the world by generating new data and new insight, seeking to answer both "known unknowns" and "unknown unknowns." (20) These are the front lines, the frontiers of knowledge, with emerging results debated among members of the scientific community in the form of peer-reviewed literature in specialty journals.
Meanwhile, monitoring holds down the fort at home, collecting bits of information about what we think are "known knowns," or at least ongoing and prosaic unknowns. (21) That is, monitoring accrues a pile of data addressing questions we already know enough to ask. The results of routine environmental monitoring--such as climate and weather data, fisheries landings, concentrations of air pollutants, etc.--often appear in grey literature produced by government agencies, or appear online in ever growing datasets. Monitoring outputs may be raw data such as real-time sea surface temperature readings from buoys in the water," or more processed information such as estimates of ecosystem conditions based upon selected indicators. (23)
One might see the difference between basic science and routine monitoring as the difference between a research meteorologist and a weatherman. (24) A research meteorologist is a scientist who studies climatic phenomena using networks of data-collecting stations, computer modeling, and the like, seeking to improve the basic understanding of atmospheric science. (25) A weatherman, by contrast, reports and contextualizes the weather observations and forecasts, which in turn are generated using techniques that research meteorologists developed. (26) The research meteorologist pushes the boundaries of the known world; the weatherman fills in blanks that we already know are there.
And so proceeds the centuries-old false dichotomy between basic and applied research. One reason the basic-versus-applied distinction breaks down in the context of environmental monitoring is the Catch-22 about monitoring: we have to know a lot about what we are monitoring--say, the state of an estuary--before we can...
Will more, better, cheaper, and faster monitoring improve environmental management?
|Author:||Kelly, Ryan P.|
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