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This is part of a series on evidence-project.

Part 2: ‘Common Legal Issues when using Community Sourced Data’

by lenagd | January 25, 2017 16:43 | 157 views | 0 comments | #13877 | 157 views | 0 comments | #13877 25 Jan 16:43

Read more: publiclab.org/n/13877


This is part of Public Lab's 'Environmental Evidence' blog series - an examination of the ways in which the law and the legal system are helpful and harmful - for communities and advocacy groups seeking to use community-sourced data to activate change. 'The Law' can be an incredibly powerful tool for holding polluters accountable, but it is often overly complex, costly, and slow to respond to changing circumstances.

In this three-part blog, Part 1 looked at how the system currently works. This Part 2 will discuss common hurdles in using community-sourced data, and Part 3 will focus on emerging trends, as well as ways in which community and advocacy groups can help shape the discussion of who gets to participate in the scientific process.

Part Two: Why it Doesn't Always Work

In creating the Code of Hammurabi (one of the oldest examples of a comprehensive legal system), King Hammurabi boldly proclaimed that his Code would help "destroy the wicked and the evil-doers; so that the strong should not harm the weak."[1] Alas, it contains almost no references to regulations for government officials or penalties for misbehavior.[2]

This section goes through the three steps used in Part One (identification of a problem, collecting and analyzing data about that problem, and using that data to fix the problem), and identifies common legal obstacles faced by community scientists.

Step One: Identifying the Problem

Sometimes pollution will be obvious; sewage in a stream or black smoke from a building. But it is also often invisible, and the connection between the symptom and the cause often unclear (or purposefully hidden). Without sufficient resources, it can be difficult to spot the problem or know how to measure it. To continue with the community activists v. polluter started in Part One: maybe Shady Business LLC didn't dump its waste from a clearly visible pipeline, but dumped it instead within their property, where the pollution took months to seep into the groundwater and affect the drinking water supply.

Step Two: Gathering the Evidence

In our adversarial system, there is an ongoing tug-of-war between those who seek more transparency and increased accountability, and those who favor the status quo (especially if it benefits them). The same is true in the field of environmental activism, where a step forward (say, in the development of affordable and easy-to-use data collection tools) is often met with some form of pushback.

One such example is the 2015 passage of Wyoming's SF0012/2015 and SF0080/2015.[3] SF0012 makes it legal to imprison people for up to one year if they trespass onto 'open land' but only if they are doing so with the intent of collecting resource data. It also prohibits government agencies from using that data[4] SF0080 expands the definition of 'data collection' to include photographs of the property (regardless of whether someone is physically on the property).

This legislation, spurred by complaints from the cattle industry of meddling by environmental activist groups, is currently being challenged in court by a coalition of environmental organizations.[5] Whether or not the plaintiffs succeed, or the law is changed, it is representative of how the legal system can (legally) impede gathering necessary environmental data.

Even without explicit legal barriers, gathering environmental evidence can be challenging. If attempting to gather evidence to appeal directly to an enforcement authority, specific methods must be followed, including ensuring the integrity of the sample post-collection. That said, many sample collection methods are straight-forward and are detailed in Standard Operating Procedures available online (such as are available at https://www.epa.gov/measurements/collection-methods). Sample analysis is typically more difficult, costly, and requires access to and mastery of instrumentation. Commercial, academic, and government labs can be resources to analyze samples, and if you've communicated with them about exactly how to collect and store your samples prior to analysis, having samples processed in a certified lab can be an excellent way to obtain high-quality data.

Step Three: Turning Evidence Into Action

Can you prove it? Can I trust you? And why should I trust you more than the other guy?

Being able to prove the credibility of your evidence and demonstrate causal relationships are cornerstones of the scientific process. For differing reasons, however, credibility and causation have become increasingly burdensome and difficult for those seeking to address environmental problems. This burden is especially acute in the legal system, where government agencies are given wide discretion in justifying a decision to take/not take action, and much environmental litigation places the burden of proof on the plaintiff, not the alleged polluter.

When it comes to demonstrating credibility, new methods of collecting data and evidence from traditionally disempowered communities or groups face an uphill battle in a legal system where change can be slow and institutional preferences ingrained. And in certain contexts, e.g. litigation, if data cannot meet certain accepted standards, it may not be allowed to be introduced as evidence at all.

Demonstrating 'causation' is especially problematic in environmental contexts. Because cause and effect within ecosystems can be complex and nonlinear, 'proving' x caused y may sometimes be impossible, which is then often politicized to prevent action (the fact that there is still a climate change 'debate' in the U.S. b is a perfect example. In legal contexts, the burden is usually on the plaintiff to 'prove' x within a certain degree of certainty. If you have video of someone trying to barter baby alligators for a six-pack of beer, 'proof' is easy.[6] If you're trying to show an offshore oil spill is affecting inland health, it's not.

The chart below looks at how issues of credibility and causation affect the chance of success in environmental legal actions.

Type of Action & Characteristics Pre: Agency Decision-Making Post: Petitioning for Judicial Review Citizen Suits & Litigating with Legislation Public Nuisance Toxic Torts
How to Initiate Pre: during public comment period Post: depends on statute of limitations, but usually one must file claim within appx 3 months File notice of intent to sue and serve on required parties File lawsuit in civil court (usually state) File lawsuit in court (state or federal)
Parties Individual Commenters State/Federal Agencies Plaintiff Alleged Polluter State Environmental Agency Plaintiff Alleged Polluter Plaintiffs (Class Action) Alleged Polluter Insurance Companies
To Succeed, Plaintiff Must: Pre: be the loudest set of voices (i.e. political value) and present sufficient evidence Post: show that the in/action was "arbitrary & capricious" (i.e. there can be no reasonable explanation for it, or it was totally beyond the agency's jurisdiction) Need to make sure that the applicable legislation authorizes citizen suits (or other means to challenge action) Prove that the action is "a substantial and unreasonable interference with rights common to the general public" That state/federal legislation has not already addressed the issue Show that they have suffered injury, that the defendant caused it, and that the court has some means to 'fix' or redress the problem
Legal Standards for Evidence Pre: agency must consider all comments, but has discretion over how to weigh them Post: usually not allowed to introduce new evidence at this point Varies by state and by authorizing legislation; agency also has a certain amount of discretion in deciding whether or not to pursue action The relevant state rules governing evidence Case Law (i.e. legal precedent) Federal Rules of Evidence 401, 701, 702, 703
Duration (these are only very rough estimates!) Pre: depends on agency, from 1-12 months Post: depends on specific state/federal statutes (usually 1-6 months) Anywhere from 2 months to 1+ years Usually less than 1 year Years
Cost (these are only very rough estimates!) Pre: no cost -- low cost Post: if suing agency for its action: cost of hiring attorney and filing motions If agency decides to pursue: limited cost for individual plaintiff If agency decides not to assist: $ thousands Main cost is usually cost of attorney and cost of presenting evidence Some cases are on a contingency basis, but can go into the $ millions
Common Problems (faced by plaintiffs seeking to use community sourced data and environmental legal action generally) Transparency, Wide agency discretion, Limited window for challenging action Pre: Agencies are given a lot of discretion, and agencies are often skeptical towards new or emerging technology / means of collecting evidence Post: courts will usually give significant deference to the agency's reasons for action / not acting
A narrow timeframe for challenging action
Cost, Participation is Limited by Legislation If the responsible state environmental agency decides not to act; the plaintiff / community must finance
Not all environmental legislation has citizen suit provisions
It has become increasingly difficult to prove ‘standing’ (i.e. that the plaintiffs have been
Vague legal standards; possibility of state/federal preemption
‘Nuisance’ has been inconsistently defined
For complex environmental issues, it can be tricky to prove causation and ‘particularized harm’
Cost, Causation, requirement that courts ‘balance’ the evidence
“Battle of the Experts” (such cases can often turn on which side can hire more experts and submit more data
Costs can be prohibitive
Proving liability and intent can be very difficult, especially when dealing with corporations

Agency Decision-Making / Petitioning for Judicial Review

In its "Exploratory Study on Barriers," the Wilsons Commons Lab (a non-partisan research institute) identified key obstacles preventing a wider acceptance of citizen science. One of the study's main (and probably unsurprising) findings was that "personnel in multiple agencies have noted a general skepticism of the scientific community toward data collected in this comparatively uncontrolled way, as it is unfamiliar."[7]

Agencies tend to place far more weight on 'traditional' science or evidence (or lack thereof) provided by universities, research institutions, etc., and are not (usually) obligated to explain what specific information they relied on when coming to a decision. This lack of transparency makes it difficult to influence ingrained agency positions or engage in open dialogue.

After an agency makes a decision or takes an action, individuals or group can seek to challenge that decision. While the specific rules vary by state/municipality, courts are (usually) obligated to apply legal standards that are difficult for the plaintiff to meet. The rules (usually) require a plaintiff to show that a) the decision was "arbitrary and capricious" (i.e. totally unreasonable) b) clearly beyond the bounds of their legal authority, or c) the agency had a duty to act but didn't.[8] And, since plaintiffs in environmental actions usually don't have access to all the data/evidence used by the agency, it is very difficult to show that an agency acted unreasonably.

Citizen Suits

Nor all environmental protection legislation allow for citizen suits. While (most) of the relevant federal legislation does, (most) states do not have similar provisions for violations of state-specific environmental laws.[9] So, even if there is a clear violation of an environmental protection law, citizens cannot sue to enforce the law, nor is the state obligated to enforce it.

When utilizing the citizen suit provision, plaintiffs are required to notify the relevant state agencies (usually the state environmental agency).[10] That agency is allowed to decline to pursue action against the alleged violator for any number of reasons (including that the agency is working with the violator on compliance and chooses not to pursue enforcement action, or that the alleged violations are 'unfounded').[11] It is then up to the plaintiff to continue without agency support, which increases their costs and difficulty of gathering enough evidence to prove a violation of the law.

It has also become it has become increasingly difficult for environmental plaintiffs to meet legal 'standing.' Standing essentially asks a would-be plaintiff, "what's it to you?" and demands that the answer meet certain requirements.[12] In extremely broad terms, the plaintiff has the burden to show that a) some kind of actual 'injury' or harm occurred; b) that the injury is fairly traceable to the conduct of the alleged violator; and c) that the court's decision can actually help fix or 'redress' the harm. In addition to these constitutional requirements, there has been an increase in recent decades of so-called 'prudential' requirements (i.e. discretionary judicial requirements). These requirements, when applied, require plaintiffs to show that they have somehow been affected by the violation in some individual and particular way, and that they fall into the 'zone of interest' that the legislation was intended to cover (e.g. a human rights group based in Alaska cannot sue to enforce protection of the endangered Floridian Orangina Toad). In recent years, courts have made it increasingly difficult for environmental litigation plaintiffs to satisfy the 'prudential' requirement.[13]

Public Nuisance & Toxic Tort Litigation[14]

Scientific evidence, methods, and data play critical roles in proving that x pollution caused y harm. And success or failure can depend on getting people to believe in the a) viability of the method/data collection process b) the conclusions drawn from data collected using that method, and c) the relevance of those conclusions to the larger issue. While courts have specific rules for introducing scientific evidence, the fact that judges and juries are not scientific experts themselves mean things often get extremely complicated and fuzzy in practice.

The baseline federal standard for admitting evidence is broad. All evidence is relevant, and theoretically admissible, if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action."[15] However, it's difficult for non-experts to know whether scientific evidence/data is relevant or not, and courts require additional steps before scientific data is introduced.

Plaintiffs often hire expert witnesses who can testify to the importance and reliability of the data scientific (unfortunately, Rule 701 prohibits 'ordinary' or 'lay' witnesses from giving opinion testimony). However, the expert must also first show that he/she is an expert on the particular issue. They must also limit their opinions to a) testimony relevant to the case; b) opinions based on 'sufficient facts' or data; c) opinions based on 'reliable principles' and methods; and d) opinions where the expert has 'reliably applied' those principles to the facts. [11]

In practice, this widely used standard (called the "Daubert standard") puts new technology, unproven methods, and lower quality data at a significant disadvantage. Say, for example, two experts use similar raw data but apply different methods to come to different conclusions. In determining which conclusion to place more weight on, a judge might look to see which expert has more experience on the topic, or if one expert used conventionally accepted methods while another used a novel technique, or bases his/her conclusions on lower-quality data. In all these scenarios, the more 'traditional' expert and expertise will carry more weight.

EJ for All vs. Shady Business, Round 2

To place all of these legal challenges to community-sourced data in a (more depressingly realistic) context -- let's revisit the water pollution example from Part One. Here, we find that Shady Business, after being fined by the state environmental agency, has changed its tactics, and is now dumping its toxic waste directly onto its property. It has also contributed significant funds to a recent gubernatorial campaign, and, to the horror of many, the likely incumbent is indeed defeated by a 'pro-business' candidate, who hails Shady Business as an important driver of job growth.

Meanwhile, the toxic waste has slowly seeped into the groundwater, and local residents have seen a statistically significant increase in illnesses associated with certain toxins. So, the next generation of EJ For All has mobilized its base to force the company to stop polluting and pay for the harm it has done. Unfortunately, the new state legislature, under the direction of the new governor, signals to environmental agency staff the importance of informal and collegial compliance negotiations. After an unsuccessful attempt to influence proposed new regulations by participating in the agency decision-making process, EJ For All sues under the Clean Water Act citizen suit provision. Equally unfortunately however, the new administration has made it a priority to defund the environmental agency budget. Under this pressure, the agency decides not to pursue enforcement action.

Disappointed, yet undeterred, EJ For All presses on. Members of neighboring communities also come forward, with similar symptoms. A larger coalition forms, and it decides to bring a class action suit against Shady Business. In court, the coalition is eager to present the substantial amount of evidence it has collected, from water quality, to rises in local health problems and reductions in indicator species. It feels confident that a judge or jury will see the fairly obvious correlation between these and the dumping and the lack of enforcement. A local attorney steps forward, and offers to manage the case on a contingency basis.[16] There is a growing feeling of empowerment among the community coalition.

However, the lawsuit runs into several problems. Funds are low on the coalition's end; the opposition is well financed. Plaintiffs are intimidated; some lose their jobs at companies owned by Shady Business' parent company while others are offered money to drop out. The defense legal team raises objection after objection. They claim that the data collected does not follow established protocol, and bring several expert witnesses to testify as such. Finally, the judge, bound by the legal precedent established by the Supreme Court, weighs the evidence and determines that EJ For All's evidence insufficiently proves causation by the defendant, and the case is dismissed. Shady Business moves its operations to Mexico, and never has to pay damages. The community itself is devastated...but its youngest members are not defeated, and vow to fight on.

General Conclusions

It is one of life's most terrible truths that the facts of something can be warped and ignored using money or power, and that so often those with money and power choose to do so. But that is also why the growth of the community science movement is powerful: it makes community voices that much louder, and those with power a little less able to turn a blind eye.

While legal systems are critical for ensuring people abide by common rules and are duly punished if they violate them, these systems are almost always written by those in power, and rarely designed with the explicit intent to be accessed by everyone. In the United States, there are many legal mechanisms created with the intent to ensure environmental regulations are followed and violators punished for violating them. And yet, even with those goals, access to those tools is dependent on the agency, region, political pressures, and a host of structural and cruelly preventable limiting factors.

Still -- 'The Law' has never been a static force, immutable or frozen. It can move and grow and evolve to meet new needs and better redress old wrongs. Part Three of this series will focus on those areas of growth, as well as what we can do right now to hurry that evolution on: who knows how Hammurabi's Code might look like if he were born today?


[1]https://web.archive.org/web/20070909114038/http://www.wsu.edu/~dee/MESO/CODE.HTM

[2]http://mcadams.posc.mu.edu/txt/ah/Assyria/Hammurabi.html

[3]https://legiscan.com/WY/text/SF0012/id/1151882

[4] 6-3-414. (d)(ii) "Open land" means land outside the exterior boundaries of any incorporated city, town, subdivision approved pursuant to W.S. 18-5-308 or development approved pursuant to W.S. 18-5-403.

[5]http://www.wyofile.com/blog/lawsuit-challenges-constitutionality-of-data-trespass-laws/

[6]http://www.nydailynews.com/news/national/florida-man-trade-gator-12-pack-beer-article-1.1551306

[7]https://wilsoncommonslab.org/2014/09/07/an-exploratory-study-on-barriers/

[8] The 'Article 78' process is an example of how the process works in New York State: www.nycourts.gov/courts/1jd/supctmanh/Self.../Special Proceeding2.pdf

[9] An example for how the process works in New York State can be found on the New York's Department of Environmental Conservation page here:http://www.dec.ny.gov/regulations/25226.html

[10] http://www.dec.ny.gov/regulations/25226.html

[11]http://www.dec.ny.gov/regulations/25226.html

[12] https://elr.info/sites/default/files/articles/23.10031.htm

[13] Lujan v. Defenders of the Environment is a Supreme Court case that established new, more difficult standards, and has had a significantly negative effect on environmental litigation.https://en.wikipedia.org/wiki/Lujan_v._Defenders_of_Wildlife

[14] One of the best (or worst, depending) examples of the difficulties plaintiffs face in pursuing corporate wrongdoing is covered in this story, which details the struggle of farmers in West Virginia to hold DuPont accountable for chemical pollution:http://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html?_r=0

[15]https://www.law.cornell.edu/rules/fre/rule_401

[16] Because of the difficulty of plaintiffs to have the resources to pay an attorney upfront, some attorneys take these cases on a contingency basis, meaning they get paid only if the plaintiffs win.


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