June 01, 2013

Vantage Point

Paula J. Schauwecker

The practice of environmental law is linked to science and technology in many ways. Indeed, whether it is proving causation or injury under common law claims or proving compliance with, or violations of, federal or state environmental regulations and statutes, science and technology play a critical role. This issue of Natural Resources & Environment seeks to uncover many of the ways science and technology are used, or potentially misused, to protect the environment, set standards, measure impacts, or settle disputes.

Any publication dealing with science and technology in the environmental field must acknowledge the important role that experts play in resolving legal disputes, and the first two articles in this issue do just that. The first article, by Joan P. Snyder and William H. Desvousges, discusses the use of Habitat Equivalency Analysis (HEA) in natural resource damage assessments. It provides a brief conceptual overview of the HEA tool and a summary of the legal contexts in which it is being used, including the extent to which HEA outputs have been accepted in court. It also identifies and discusses the factors that impact the legitimacy of a HEA analysis across the variety of potential uses.

In the next article, Daniel Luecke, Steve Snyder, and John E. Thorson examine the reasoning underlying Colorado’s expert witness reforms and highlight recent psychological research questioning the reliability of expert forecasts in low validity environments. Effective January 1, 2012, the Colorado Supreme Court adopted a procedural rule that dramatically changed the manner in which expert opinion testimony is to be prepared and presented during litigation over the adjudication and administration of water rights, and our authors walk us through the reasoning and import of the rule.

The issue then turns to articles examining how science and technology are employed under many environmental statutes. Sara A. Leverette and Ryan P. Steen, highlighting real-life examples involving Arctic seals, Hawaiian false killer whales, polar bears, and Alaskan Steller sea lions, explore how the use of limited, stale, or uncertain data and long-term forecasting often produce regulatory results that lack scientific rigor, distract from the conservation of imminently imperiled species, and impose costly and potentially unwarranted limitations on regulated entities. The article offers suggestions as to how protected species statutes and regulations can be improved to require a more objective consideration of what constitutes the “best science.”

Laurent C. Levy provides an overview of recent vapor intrusion (VI) guidance developments and the challenges faced when assessing the VI exposure pathway. VI has received increased regulatory attention due to its potential for posing unacceptable human health risks from long-term inhalation exposure to those chemicals.

In the next article, Winston K. Borkowski describes how the information used to develop the human health-based water quality criteria, intended to protect a state’s residents from pollutants that are discharged to surface waters and accumulate in fish and seafood consumed by the public, comes from several unrelated sources. Studies using laboratory animals are used to assess the toxicity or carcinogenic properties of a pollutant. Phone call surveys are often used to quantify the fish consumption habits of a state’s residents. Fish tissue data showing contaminant levels in fish often come from numerous studies by a variety of researchers. These diverse and seemingly unrelated sources of data are used to set water quality criteria to protect human health. This article examines the scientific and legal basis for human health-based water quality criteria.

Robert Lambrechts and Robynn Andracsek explore and explain the role of air dispersion modeling in the major source construction permitting process. The authors provide a step-by-step review of the modeling process when preparing a model for State/EPA Review. They explore what the source can do to fix undesirable model output and the lawyer’s role in vetting and advocating air dispersion modeling results. In the next article, Peter Stokely discusses federal Clean Water Act (CWA) enforcement support using remote sensing and Geographic Information Systems (GIS). He covers the elements, or proofs, required in a CWA Section 404 case and explains how remote sensing and other geospatial data can be utilized in a GIS environment to establish those proofs. He covers aerial photography interpretation and the incorporation of collateral information such as digital stream data, wetlands data, and topographic data and provides case examples of the principles described in the article.

Finally, to illustrate how science and technology can learn from the environment they seek to protect, Jennifer L. Molnar and John DiMuro provide a compelling example of how business and the environment can work together to achieve real success for both. In 2011, Dow and The Nature Conservancy announced a breakthrough five-year collaboration to help Dow and the business community recognize, value, and incorporate nature into global business goals, decisions, and strategies. This article shares insights and learning around the critical role that ecosystem services play in society’s quest for economic growth—and how business and the environment can grow hand-in-hand.

As the cover suggests, the natural beauty and resources that motivate our quest for scientific and technical understanding of the environment are at the heart of environmental law; we hope you enjoy “unzipping” the Science and Technology Issue of Natural Resources & Environment.

Paula J. Schauwecker

Paula J. Schauwecker is the issue editor for the Summer 2013 issue of Natural Resources & Environment.