Scientific information has become a central rationale for environmental regulation, and scientific uncertainty is viewed as a major obstacle in developing, justifying, and enforcing environmental laws and policies. In the context of environmental regulation, scientific information may be analyzed as subject to both supply and demand. A regulatory system that supplies more scientific information than it demands can operate effectively to impose protective regulation. By contrast, a system that demands more information than it supplies will face a “data gap” and will fail to accomplish its protective goals. The data gap can be addressed by applying regulatory techniques that increase the supply of data by providing more information (“filling” the gap) or that reduce the demand by permitting regulation to proceed despite uncertainty and incomplete information (“bridging” the gap).
Environmental law is also structured by the divide between pollution control and chemical regulation on the one hand, and resource management on the other. In addressing the data gap, therefore, it is necessary to distinguish not only between supply and demand, but also between chemical and conservation issues. The existence of a data gap between the scientific information necessary for effective environmental regulation and the information available to regulators and the public presents an opportunity to study the causes and extent of the differences in the chemical and conservation regulatory systems.

Despite wide recognition that natural resource management decisions are heavily dependent on the supply of scientific information, little attention has been paid to the processes by which that information is supplied. This paper lays out the key steps of the information supply pipeline, which include exploration, extraction, refining, blending, distribution, and consumption. Leaks in the pipeline can occur at any of these steps, interrupting the supply of information to decision makers. Because information supply is contextual and complex, no universal fix can address all information shortfalls. Nonetheless, several general recommendations emerge. First, decision makers must recognize the limits of scientific information, both in terms of the degree of precision and certainty attainable, and in terms of the need for other inputs into decisions. Second, priorities should be more consciously set, both on the broadest level across multiple resource demands and for specific problems. Third, freewheeling, creative exploratory research needs to be better encouraged. That will require more than increased funding; the training and cultures of both managers and researchers also need to be addressed. Fourth, the production of available information must keep up with theoretical advances. Targeted funding, incentives for information production, and institutions with an information production mission are all needed to ensure that extraction keeps pace. Fifth, collaboration needs to extend across traditional disciplinary, political, and institutional boundaries. Sixth, once information is produced, it needs to be archived in locations and formats that make it both accessible to and useful for future researchers and managers. Focusing on the information supply pipeline helps move discussion beyond the simplistic dichotomy of precaution versus certainty to the ways we can improve the information base for decisions and the value of those improvements.

This Article considers the lessons that may be drawn from the recent controversy created by one federal agency’s shifting approach to the use of models and surrogates.  The National Forest Management Act (NFMA) delegates to the National Forest Service (Forest Service, or Service) the responsibility to develop land and resource management plans (LRMPs) for units of the National Forest System (NFS) and to make site-specific decisions about the use of those units in a manner consistent with the plans. The NFMA charges the Forest Service with the task of issuing regulations governing the land use planning process that, among other things, “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.” The Service has encountered difficulty in carrying out its responsibility to issue and apply those regulations because of the enormous complexity of the ecosystems within the forests under its jurisdiction.  To minimize the uncertainty it faces in predicting what impact a particular proposed action, such as a timber sale, will have on the diversity of plant and animal species in the affected forest, the Forest Service has turned to the use of models and surrogates.  For years, acting under land use planning regulations issued by the agency in 1982, it identified management indicator species (MIS) that it determined were representative of the health of the ecosystem as a whole.  The MIS were supposed to act as surrogates for the impact of activities such as timber sales on plant and animal diversity.  The agency’s aim was to predict the effects of management actions on the selected MIS and to monitor the fate of the MIS after the action was taken to determine whether the action was interfering with diversity.  If it was, suitable changes in management approaches could then be made.

The U.S. Endangered Species Act requires the U.S. 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 the types, quantity, and quality of the 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 decision errors, and the consequences might be failure to prevent extinction or imposition of unnecessary regulatory requirements. 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.

This paper focuses on a public trust resource—wetlands—and examines an issue that has been largely studied with reference to health-based pollution-control statutes.  This paper assesses whether information gaps create an obstacle to successful regulation under section 404 of the Clean Water Act (“CWA” or “the Act”) as it applies to discharges of dredged and fill material in wetlands. Because § 404 is a unique blend of pollution control regulation and natural resource management, the protection of wetlands under §404 provides an interesting lens through which to consider the impact of information demands.  The fundamental similarity between a health-protective chemical regulation statute such as § 6 of TSCA and § 404 is that both statutes seek to regulate activities that will introduce harmful substances into the environment. Moreover, § 404 is part of the CWA, a statutory framework that adopts largely a pollution-control approach to achieving its goals by focusing on avoiding harmful discharges into the environment. Yet, the goal of protecting functions and values of wetlands is a goal related to natural resource conservation, which is usually protected under the public trust doctrine.

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 due to such information gaps are ambient environment strategies that start with assessment of ambient conditions and tailor regulatory obligations to the state of the environment; such schemes demand information and tailored regulatory responses that are often beyond the capacity of science or regulatory resources. Others, however, criticize regulatory strategies for being context blind.  Both criticisms have undoubted merit, yet many regulatory schemes actually involve a hybrid strategy that utilizes what this paper will call Aadjudicatory triggers@ in conjunction with ambient environment strategies.  Such adjudicatory trigger strategies require new gathering and analysis of 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 analyses.
    This paper will provide examples of adjudicatory triggers primarily through brief explication of a case study of the 1970s and 1980s Westway litigation. It then provides brief exegesis of several representative regulatory examples.  As revealed by the Westway story and these regulatory examples, these adjudicatory triggers often serve as a useful mechanism to overcome incentives of governments and private actors to ignore or undersupply environmental information.  The applicant=s interest in a permit grant or other individualized regulatory approval necessitates gathering of new information that often did not exist before.  Proponents and opponents of the regulatory approval, as well as regulators fearful of being sued for an allegedly unjustified decision, all will share interest in gathering information supporting their views or decision.  These diverse stakeholders will seldom share goals, but in the adjudicatory trigger setting, all will have incentives to gather relevant information. 

California’s Proposition 65, The Safe Drinking Water Act of 1986 a voter-passed initiative, possesses some unusual information-generation and use features, together with some burdens of proof not usually seen in typical postmarket statutes. After placing Proposition 65 in context of other kinds of statutes, this paper describes the features of Proposition 65 and then analyzes what contributes to its efficacy as an environmental health statute. I argue that Proposition 65 has a number of characteristics that make it reasonably effective in reducing exposures to toxicants: its automatic provisions, the shifting of the burden of proof to firms that expose the public to toxicants, its meaningful sanctions, its “responsibility” attribute and its adaptability to address new toxicants.

A person unfamiliar with the intricacies of chemical regulation in the U.S. might assume that regulators are hard at work weeding out dangerous products, requiring warnings on thousands of others, and collecting copious toxicity research on the rest.  In truth, however, the regulatory regime in the U.S. works nothing like this.  There is little information available to regulators for evaluating possible hazards of chemicals and, even for the limited research that does exist, some unspecified portion of the scientific studies is at risk of being biased or otherwise unreliable.  Since EPA focuses most of its firepower on regulating individual chemical substances rather than chemical mixtures, moreover, consumers have little notion of the comparative toxicity of the chemical products on the market and lack adequate instructions regarding their proper use.  There is simply no way to sugarcoat the ugly truth: Chemical regulation in the U.S. has been a dismal failure.
    This article considers the entrenched failure of chemical regulation and offers a different angle for regulatory reform that taps into market competition between rival firms to produce relevant information about the toxicity of certain chemical products on the market.   By repositioning regulatory decisions as an adjudication between rival manufacturers, the proposed regulatory process is fueled by the expertise, information, and energies of manufacturers of safer products eager to put their more hazardous competitor products out of business.  This shift in regulatory approach also breaks up the unified political coalition of manufacturers into two groups – those that might enjoy competitive benefits from such a proposal because they have been vigilant in testing their products and those that will lose because they have not.  While this shift does not guarantee that some manufacturers may be persuaded to support a competition-based reform of toxics policy, it at least provides some hope of an altered configuration of stakeholders that prove less resilient in opposing reform.

The gaps between what law demands and what science supplies in environmental policy reflect the disparate objectives and epistemological approaches of the two fields. While existing scholarship has begun illuminating the causes and consequences of the data gaps, progress in bridging the divide requires a better understanding of how gaps differ across the full spectrum of environmental law.  This essay probes the variations in information policy challenges that arise from different types of environmental law. Science information policy serves as a prism for disaggregating environmental law into component parts.

In India, only Muslim men are permitted to practice polygamy, and Hindu sons inherit greater shares of their parents’ estates than do their sisters. While one’s religion determines which law will apply to him or her regarding marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession, a common thread woven through all of India’s religious personal law systems is the patriarchal dominance of men and unequal treatment of women. Given the seemingly strong protections of gender equality in India’s Constitution, however, it is at once puzzling how the Indian government can uphold these facially discriminatory laws against women, especially when such laws affect their lives so intimately. In the name of protecting the rights of religious communities, Parliament has thus far skirted its responsibilities to some of the most vulnerable individuals within those communities—the women.

            Care must be taken to move India away from religious personal laws and toward a uniform civil code, as envisioned by Article 44 of the Indian Constitution. At present, the debate over a uniform civil code appears hopelessly divided along both political and religious lines. However, the turmoil is rooted in concerns over the process—and who controls that process—much more so than the concept itself. Needless to say, a uniform civil code constructed by a majority Hindu Parliament will not be accepted as legitimate among minority groups no matter how fairly it may be drafted. The answer, then, lies with promoting a process that brings all concerned voices to the table: men and women of all religious communities must be included. To be successful, a uniform civil code needs to reflect India’s diversity as well as its commitment to equality.