Thursday, March 1, 2012

Environmental law and spatial analysis

LayersA few years ago, I participated in a retreat for a large interdisciplinary research project involving lots of economists and environmental scientists.  As they talked about their work, I was struck by how many of them were running quantitative analyses of data generated from satellite photos or remote sensing.  Crunching spatially coded data, it seemed, had become standard operating procedure in other environmental fields, as routine to ecologists and environmental economists as searching Lexis or Westlaw is to lawyers.

Once I noticed this trend, it seemed to be everywhere.  Local, state, and federal agency websites now are filled with spatial data and with new forms of electronic mapping.  Environmental groups use spatial mapping and modeling in all sorts of innovative ways (interesting examples here and here).  And the non-legal environmental literature is now filled with studies that rely on the same kinds of spatial analysis techniques my colleagues were using.  It made me wonder: what does this mean for environmental law?

My attempt to answer that question is here.  The paper has a lot of detail, but the short summary is that even though environmental lawyers haven’t written much about these advances, they could mean quite a lot.  They can help us understand problems we previously couldn’t wrap our minds around, thus making legal solutions possible in areas where they previously were unworkable.  They can and sometimes should change our regulatory instrument choices.  They also can change the ways different agencies and different levels of government communicate and coordinate, and that non-governmental stakeholders and members of the public participate in environmental decision-making. 

Rob's mapAll that positive potential comes with a big caveat.  The outputs of electronic mapping and spatially explicit simulation modeling projects can seem seductively persuasive, particularly when those outputs combine the seeming authority of precise numbers with the visual appeal of bright colors.  Users can easily forget that that those outputs are hardly ever quite as precise or accurate as they appear, and can rely on models at the expense of common sense.  As environmental modelers sometimes say, no one believes the raw data but the field scientist, and everyone believes the model except the modeler.  But despite that dangerous potential, there are a great many ways in which spatial analysis is changing environmental management, often, potentially, for the better.  It’s a trend we lawyers have to grapple with, and that offers some exciting opportunities for the advancement of environmental law.

There are also potentially significant implications for environmental research.  In recent years, we’ve seen the rise of empirical legal studies, with an increasing number of legal researchers relying on statistical analyses of empirical data.  For the most part, empirical legal scholars have focused on databases that aren’t geographically coded, but that could change.  Spatial databases include all sorts of information that could be of interest to legal scholars.  In response to the rise of empirical legal studies, many law schools have strengthened their ties with their universities’ economics department or with statisticians, sometimes even bringing that expertise in-house.  Perhaps the next step is to create similar ties our GIS labs.

-Dave Owen

(second image courtesy of Rob Lilieholm, Alternative Futures Research Project, University of Maine)

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