Image obtained at: http://www.thebluediamondgallery.com/wooden-tile/images/evidence.jpg
Lena Golze Desmond is an associate with Feller Law Group (www.feller.law) based in Brooklyn, which specializes in energy law. She is the lead collaborator of 'Law for the Environmental Grassroots,' (www.lawforenvgrassroots.com) an initiative focusing on expanding grassroots access to legal resources. She's a NYCELLI (New York City Environmental Law Leadership Institute) Board Member, an Environmental Leadership Program Senior Fellow, and managed to keep almost all of her houseplants alive this year!
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 will look at how the system currently works (and doesn't work). Part 2 will discuss common hurdles in using community-sourced data. 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 ONE: How it Should Work
Part 1 of this three-part series will give an overview of how citizen science and community- sourced data ("community data") should work in the legal realm, as well as issues that can negatively affect that process. It walks through the best-case scenario of using community sourced data to address a problem, from identifying the issue to using the legal system to redress it.
Step 1: Identifying the Problem
Maybe the movement starts with a bad smell and oil in the water. Reports of kids getting sick, or a decline in a certain species . Perhaps it's part of an ongoing project, or even a positive trend: monitoring cases of asthma; documenting a return of life to a once-barren field; an increase in community gardens. Whatever the situation, the goal is to gather data to a) better understand what is going on and b) use that data to advocate for some action, whether it's cleaning up polluted areas or continuing a successful policy.
Step 2: Gathering the Evidence
Access to the tools to monitor and address threats to our environment and communities has generally been limited to 'professional' scientists or well-funded companies and research institutions. However, as groups (like Public Lab!) have been working to create easy-to-use and more affordable tools, we have seen an increase in the methods that are available to collect data and the types of private citizens engaged in data collection.
On one end of the spectrum is "citizen science" . Citizen science often uses professional tools and equipment (loaned by professional scientists running the study), or involves basic observations that don't require equipment (e.g. bird counts), using studies designed by scientists. It may be well-funded, or include university and government agency partners. In the case of the water pollution identified in Step 1, a citizen science project might involve funding from a local university, and use metrics designed by a scientist.
On the other end is the emerging movement of "community science." With community science, data is usually collected by the public using low-cost means, such as low-cost (and low-quality) commercially available particulate matter sensors, or DIY tools, or basic photography. It is generally designed and conducted by community members . For example: the local environmental justice coalition ("EJ for All") notices continuous dumping of what looks like hazardous waste in the river. One member obtains photographic evidence of the waste coming out of the pipeline located on the property of a manufacturing company (let's call it "Shady Business LLC"). The group then works with community volunteers to measure indicators of water quality (such as conductivity or turbidity) near the site of the discharge as well as downstream, upstream, and nearby tributaries to get a sense of the magnitude of the harm.
Regardless of the group and method, the goal is usually to gather the data so that a) conclusions can be drawn that b) are of a sufficiently high quality and c) use that data and those conclusions to be able to effectively address the issue.
Step 3: Turning Evidence into Action
After having gathered data, the next step is to use the data to prompt action. This 'action' can take many forms: publishing the data to a newspaper to raise awareness; submitting to a governmental agency or scientific institution; pressuring politicians to act. Another option is to use the legal system to force the polluter to stop what it's doing, or take steps to fix the problem.
Environmental litigation is very broad in scope. Each state has different rules, as does federal regulation, and it is difficult to neatly categorize them. That said, there are generally four types of legal action that are used to address environmental pollution (listed in order of prevalence):
- involvement in agency decision-making or petitioning for judicial review
- using 'citizen suit,' provisions in legislation (like the Clean Air Act and Clean Water Act) to bring a suit against the alleged violators 
- bringing public nuisance suit against someone engaged 'unreasonable' action 
- filing 'toxic torts' and civil lawsuits based on injury caused to someone from the pollution .
|Type of Action /Characteristics
|Agency Decision-Making OR Petitioning for Judicial Review
|How to Initiate
|ADM: During Public Comment Notice period;PJR: Depends on the statute of limitations, but usually 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)
|Individual Commenters State/Federal Agencies
|Plaintiff Alleged Polluter State Environmental Agency
|Plaintiff Alleged Polluter
|Plaintiffs (often Class Action) Alleged Polluter Insurance Companies
|Legal Standards - Generally
|Arbitrary & Capricious (i.e. there can be no reasonable explanation for action of agency)
|Need to make sure that the law/legislation authorizes citizen suits (it is usually explicitly stated in the text)
|A substantial and unreasonable interference with rights common to the general public
|Federal Rules of Evidence
|Legal Standards for Evidence
|Agency must consider comments, but has discretion over how much weight to give them
|Varies by state and by authorizing legislation; agency also has a certain amount of discretion in deciding whether of not to pursue action
|The relevant state rules governing evidence
|Federal Rules of Evidence401701702703
|During Comment Period: depends on agency, but usually 60 daysIf suing agency for its action: depends on specific state/federal statute of limitations.
|Initial response (from state environmental agency): 10-30 daysIf agency decides not to assist and community continues on its own: 30 days -- 1 year
|Less than 1 year
|During Comment Period: no cost -- low costIf suing agency for its action: cost of hiring attorney and filing motions
|If agency decides to pursue: limited cost for individual plaintiffIf agency decides not to assist and community continues on its own: $1-15K
|Main cost is usually cost of attorney and cost of presenting evidence
|Some cases are on a contingency basis, but can go into millions
Agency Decision-Making / Petitioning for Judicial Review
Participating in agency decision-making (e.g. writing or vocalizing a public comment) is often one of the easiest and most cost-effective entry points for individuals. The Environmental Protection Agency, as well as most state environmental agencies, are required to solicit public comment whenever considering action (or inaction) that might have an effect on the environment . For example, when New York's Governor Cuomo was considering whether or not to allow fracking, the New York State Department of Environmental Conservation received a record 200,000 public comments . The Governor ultimately decided not to permit fracking in New York.
It is also possible to sue an agency or official for certain actions or inactions (petitioning for judicial review). While the rules are different in every state, an individual can challenge the decision of an agency to, for example, grant or deny a permit, amend rules, or issue a determination. However, the person(s) challenging the action generally have to show that the action was 'arbitrary and capricious,' meaning it did not follow logic and was made 'on a whim,' which is a pretty high bar to meet. Thus, if the agency/official can offer any reasonable explanation, the court will commonly defer to that explanation.
Some environmental legislation, notably the Clean Air Act and Clean Water Act, have so-called 'citizen suit' provisions, which allow private citizens to sue alleged violators of those laws. For example, the community group EJ For All decides to activate the 'citizen suit' provision of the Clean Water Act to stop Shady Business LLC from dumping waste into the river . It provides the required notice of intent to sue to Shady Business as well as the state environmental agency. It also provides the agency with the photographs it took and water data it collected.
Public nuisance lawsuits are helpful for when there are no specific regulations prohibiting the conduct. In these suits, a judge can determine that the action is so unreasonable, the interference so substantial, and the relative 'utility' or worth of the conduct insufficient to merit the continuation of the action. However, for public nuisance suits, the plaintiffs have to show not only that the action is causing harm to the general public, but that they have suffered a unique harm. For example, if a factory spills toxic waste into a local public field -- that is harm to the general public, but only people who have been actually harmed -- their child became ill -- would have the 'standing' to sue. Public nuisance suits can be for money, but the goal is often to get the polluter/nuisance-maker to stop with the nuisance.
The final category -- toxic torts and similar litigation -- is the most expensive and time-consuming, which is why it is also, unsurprisingly, the least common. In these types of litigation, plaintiffs who have suffered harm because of the pollution sue the company responsible. Part 2 of this series will examine why these kinds of cases are especially unfriendly for community-sourced data.
In our case, the state environmental agency considers the evidence submitted by EJ For All, and determines the company did violate effluent limitations. It issues a penalty to Shady Business LLC. Hit where it hurts, the CEO Ronald Drumpf  orders the company to stop dumping in the river. The water quality returns to normal, kids are allowed to swim again, and all is well.
That's how it's supposed to work. But community activists know all too well how often it doesn't happen that way. How often there's not enough time or money to do the research, to access the proper tools, to get people to listen, to afford attorneys, or how to influence the media, the government, the legal system. The next section gives an overview of obstacles that groups often face when trying to address an environmental issue in their community.
- There is no one agreed-upon definition of 'citizen science.' Cornell's Orinthology Lab uses the working definition of projects in which volunteers partner with scientists to answer real-world questions. The White House, in its 2015 Memorandum on Citizen Science describes it as actions where "the public participates voluntarily in the scientific process, addressing real-world problems in ways that may include formulating research questions, conducting scientific experiments, collecting and analyzing data, interpreting results, making new discoveries, developing technologies and applications, and solving complex problems."
- Dosemagen, S, and G. Gehrke. 2016. "Civic Technology and Community Science: A New Model for Public Participation in Environmental Decisions." In Confronting the Challenges of Public Participation: Issues in Environmental, Planning and Health Decision-Making (Proceedings of the Iowa State University Summer Symposia on Science Communication). Edited by J. Goodwin. Ames, IA: Science Communication Project.
- Rest 2d. Torts § 821B (1979).
- Under 33 U.S.C. 1365 of the Clean Water Act.
- No relation, of course.