The schedule presents an outline. Click to see the complete abstracts.

Introduction

• Rena Steinzor
• John Applegate
• Robert Fischman

Demand

• How does the law create the need for scientific information?
• What are the statutory/legal objectives (harm avoidance, value enhancement) of the various types of environmental protection?
• What are the uncertainties that each form of environmental protection encounters?
• How do legal and scientific information needs differ?

• Vicky Meretsky
  Moderator
• Teresa Woods

  The Endangered Species Act requires the US Fish and Wildlife Service to use the "best available" information when deciding whether to list species as threatened or endangered, and when regulating conservation for species already listed. The agency has discretion to determine types, quantity, and quality of information it uses as "best available," but little discretion to defer decision making in cases where important scientific information is lacking. Complexities of nature, obscurity of many species' life history, and changing environmental circumstances are only some of the reasons why information is rarely complete, and why decisions are almost always made in the face of uncertainties. These uncertainties could lead to errors, and the consequences might be failure to prevent extinction or imposition of unnecessary protections. Furthermore, real or perceived errors could lead to legal action and loss of the agency's credibility. This paper discusses some recent examples of how the Fish and Wildlife Service has dealt explicitly with uncertainty in its administration of the Endangered Species Act.

• Paul Locke
  

  The regulation of chemicals and radionuclides to protect public health demands several different types of scientific information for several different purposes. In particular, public health regulation requires both information for direct use in improving legal controls and for developing methodologies that will enable better identification and prevention of health threats. This paper will examine public health data demands in several major environmental laws, demonstrate how public health data can be used in decision-making through the lens of two case studies, radon and environmental tobacco smoke, and examine what data demands reveal about the nature of, and changes needed in, the chemical regulatory structure.

• Alyson Flournoy
  

  The protection of wetlands under the Clean Water Act presents a valuable lens through which to compare the information demands of chemical regulation and resource conservation, because it is a unique blend of the two. Protection of wetlands and their functions and values is clearly a resource conservation goal. Yet federal regulation of activities in wetlands occurs through a pollution control/permitting regulatory process that focuses on the impact of discharges into wetlands. Thus, regulators are required to evaluate whether proposed activities will cause harm to wetlands. In doing so, they encounter many of the same data challenges familiar to regulators in the realm of chemical regulation who seek to evaluate whether emissions or use of a particular substance will cause harm to public health. This paper traces how the information burdens that inhere in the regulatory process, rather than the substance of the regulatory standards, determine the level of protection achieved. Taken together, the agency's burden of proof, the lack of clarity in key regulatory standards, and the limited information typically available to both agency and applicants undermine the protections that the statute and regulations appear to promise.

• Samuel Luoma
  

  One of the problems in regulating chemicals and in conservation biology is that new knowledge challenges the traditional paradigms by which we assess risks, deal with uncertainties, and develop regulations. The paper will show how agency policy makers and the scientific community address the interactions necessary to move to the next level of knowledge. It will also address the nature of the dialogue among lawyers, regulators, risk assessors and scientists. The difficulties of the interaction between environmental science and policy are well known. There is much diagnosis of what is wrong. But the mechanics of how to manage a constructive dialogue is not something that has received much attention. We need to take advantage of new knowledge, and communicate risks/uncertainties, in a more constructive way. The paper will ask how we might do that.

Break

Information Regulation

• How have the generally applicable requirements, such as the Freedom of Information Act and the Information Quality Act been used in the chemical and conservation areas of environmental protection?
• Have the information requirements had an important impact on substantive implementation of environmental law?
• How should we measure whether an information demand is constructive or counter-productive in environmental law?

• Evan Ringquist
  Moderator
• Ellen Paul
  

  Scientific societies predicted that the Data Quality Act (also known as the Information Quality Act) would constrain access to and use and dissemination of scientific information, particularly in the rulemaking process. Most already had some internal quality systems to assess scientific evidence, but the challenge provisions of the law were of concern. The decision-making and regulatory functions of natural resource agencies would be hampered, both because of the resource demands of these challenges, and because of a chilling effect that would cause agencies to be unduly cautious in disseminating information. This presentation will evaluate the actual burden of the challenges filed to the U.S. Fish and Wildlife Service, U.S. Forest Service, and the Environmental Protection Agency in Fiscal Years 2003 and 2004 and will attempt to evaluate the extent to which agencies are more cautious about disseminating information for fear of potential challenges.

• Wendy Wagner
  

  While the reliability of information used by regulators is subject to various internal checks within the executive branch, several laws also employ private parties to assist in overseeing the quality of the information used by regulators. Allowing private parties to participate in the oversight process helps to improve the quality of public regulation, but many of the overbroad legal tools also provide opportunities for abuse, which undercut the quality of regulation, technical information, and public education and deliberation. Experience in the area of chemical regulation reveals that utilizing interest groups to oversee the quality of public information can lead to: harassment of scientists through frivolous challenges to their research; strategic efforts to overwhelm government officials and other interested parties in manufactured technical debates that delay and obscure the real issues at stake; mounting and often invisible pressure for overbroad exemptions to transparency; inequality among affected parties in government oversight and participation because of the complicated realities of much of this accessible and transparent information; and perverse rational choice reactions by regulators themselves in deciding how and whether to publicize information. This paper explores whether these abuses are an inevitable part of employing public participation as a means for improving information quality. The paper concludes with suggestions for ways that chemical regulatory programs can ensure a high level of information quality and transparency without exposing agency information to counterproductive abuses by special interests.

Lunch

Supply

• How does the law generate the information that it requires?
• What legal tools are available, and how well are they deployed?
• What institutional capacities exist for generating information? Where is the relevant scientific expertise located?

• Debera Backhus
  Moderator
• Holly Doremus
  

  The demand for information to support natural resource management is continually increasing - seemingly on an exponential scale. That increasing demand reflects multiple pressures on managers. First, they are choosing or being required to implement intrinsically information-intensive approaches, such as broad-scale ecosystem management, temporally flexible adaptive management, or ecosystem service protection, because those strategies promise to better achieve conservation goals. Second, they are being told, through explicit legislative mandates or less formal, but unmistakable, political signals to balance on the knife-edge of accommodating conflicting societal interests in conservation and exploitation of resources. For example, the Endangered Species Act requires that permits be issued for the taking of listed species incidental to otherwise lawful activities, provided that taking will not jeopardize the continued existence of the species. In other words, there is a threshold of harm to the species which cannot be crossed, but development and resource extraction are to be allowed to proceed until they can go no further without crossing that threshold. The Magnuson Fishery Conservation and Management Act sets up a similar dynamic; its overriding goal is supposed to be conservation of the resources, but consistent with that goal NMFS is told to maximize harvest by the domestic fishing industry. Third, and related to the second point, consumptive resource users, with the backing of key legislators and the current administration, has grown increasingly vocal in its demands that the government demonstrate in advance that restrictions on resource use or destruction will be effective in achieving their conservation purpose.

  The supply of information to support natural resource management has always lagged behind demand, but anecdotal evidence suggests the gap is widening, as should be expected if I am right that information demands are steadily increasing. Moreover, uncertainty remains pervasive even in some contexts where it has been recognized as a problem for decades.

  Surprisingly, there seems to have been little systematic exploration to date of data gaps in natural resource management. Such gaps are frequently noted with frustration, by managers as well as outsiders. There is, and has been for some time, abundant discussion of where burdens of proof should fall and how decisions should be made in the absence of information. There is some generalized discussion of incentives for private actors to develop or disclose information. There is even some optimistic prediction that in the future more abundant information will make regulatory tasks easier.

  What is missing is systematic exploration of how information is developed, distributed, and put to use in natural resource management. That foundation seems essential to support a more detailed evaluation of the causes of information shortfalls, and the prescription of measures to address those shortfalls. With an eye toward the ultimate goal of improving natural resource management decisionmaking, this paper makes a preliminary stab at identifying the essential elements of the information supply pipeline, pinpointing bottlenecks or leaks in that pipeline, and drawing conclusions about the causes of those problems.

• Ronald Pulliam
  

  The paper will consider what the science of ecology has to offer by way of predicting how species distributions might change during times of climate and land use change. I will emphasize the uncertainty associated with ecological forecasting and how uncertainty can be quantified and incorporated into policy and decision making. I will use both modern and paleo-ecological examples to illustrate how climate change and other factors influence species distributions and will focus on three policy relevant subjects (1) the protection of rare and endangered species, (2) the introduction of exotics and range expansions of native pests species, and (3) the introduction and spread of diseases and pathogens. Finally, I will discuss some of the policy and regulatory tools that might be useful in minimizing the impacts of these changes and consider whether the existing regulatory framework is adequate.

• Carl Cranor
  

  There are a variety of information-generating features in Proposition 65. Some require the generation of new information by those subject to the statute, thus decreasing the governmental need to generate or find data. Some utilize much more effectively existing information generated by others, but utilize it specifically for purposes of Proposition 65. Still others expedite the production of quite accurate data for legal uses far faster than typical methods. After reviewing aspects of Proposition 65 and consider some analogues to environmental statutes that have or could have similar provisions.

• Robert Glicksman
  

  The federal land management agencies, like agencies that seek to control the risk of exposure to pollution, often must make decisions in the context of uncertainty and incomplete information. The National Forest Service is charged under the National Forest Management Act with a series of obligations in formulating land and resource management plans, with which subsequent site-specific decisions must comply. One of these obligations is to provide for the diversity of plant and animal communities. The Forest Service often must adopt land use plans without complete information about species populations that might be adversely affected by activities such as timber harvesting. The agency has resorted to analyzing management indicator species as surrogates for the health of affected ecosystems. This paper will examine the Forest Service's track record in using modeling and surrogates to fulfill its planning and implementation responsibilities in situations involving uncertainty, and will address judicial reaction to the use iof those techniques to bridge data gaps.

• William Buzbee
  

  Information gaps are a pervasive reality in many areas of regulation, especially environmental regulation. Among the regulatory strategies viewed as most prone to implementation failures are ambient environment strategies that start with assessment of ambient conditions and tailor regulatory obligations to the state of the environment. These criticisms have undoubted merit, yet many regulatory schemes actually involve a hybrid strategy that utilizes adjudicatory triggers in conjunction with ambient environment strategies. Such adjudicatory trigger strategies require information about environmental conditions and implemented realities before permits or other approvals can be obtained. Permits or approvals either will be adjusted in light of ambient conditions or in some instances will be denied as the result of such analysis. As this paper will explore through brief explication of a case study of the 1970s and 1980s Westway litigation, as well as brief analysis of several representative regulatory examples, these adjudicatory triggers often serve as a useful mechanism to overcome incentives of governments and private actors to ignore or undersupply such information. Nevertheless, such schemes as currently utilized threaten to provide little comprehensive assessment or lookback, plus can lead to marginalization of NGOs and citizens who will often find it hard to command the resources necessary to effectively participate in processes initiated by such adjudicatory triggers. Questions remain about what actors should play roles in such regulatory schemes. In addition, as is often the case, information burdens and presumptions in light of uncertainty will be critical to the efficacy of schemes utilizing adjudicatory triggers to assess ambient environment information.

Break

Roundtable Discussion/Conclusions

• Are the chemical and conservation areas of environmental protection fundamentally the same or fundamentally different?
• What does information policy say about the more general relationship between law and science in environmental protection?
• What should be the agenda for actions to support progressive regulation?
• How should general information requirements be used, if at all, by progressives?