A New Model for Environmental Policy, Data and Decision-Making

View, explore, and comment on the interaction diagram: https://miro.com/app/board/o9J_kl7JoVI=/

Introduction

The creation of environmental policy is based on formative research about environmental problem areas. This policy then guides how decisions are made in reference to natural resources, environmental protection and mitigating environmental damage. While there has been a rise in environmental data, collected by and about people who are most affected by environmental issues, it is not being incorporated into the body of research that informs environmental policies. Therefore the policies that guide decisions impacting communities and their landscape are rarely accurate to the experiences or needs of these complex ecosystems.

While there are a plethora of reasons for this, it is primarily due to a lack of political will to use new forms of data by decision-makers which is compounded by the non-standardized format of these new data sources. Approaching this work, we had hypotheses which led our initial inquiry to focus on 1) the contextual challenges of building collaborative systems among communities, government and scientific institutions for environmental data sharing and management, and 2) the challenges preventing the integration of open data into environmental decision-making.

Over the last four months, our journey has led us closer to the root of the problems in the environmental data-to-decision-making space — why aren’t data working in ways that it should be? Why are we intrinsically bound to systems of law that are deeply complex with little realized benefit for the people and the environment they are meant to serve? We dug into these questions with our “understanding the problem space” blog series. We became interested in how we could apply data trusts and other collaborative models to the environmental space. And we got excited by the potential power of public comment, witness testimony and community narratives in being a critical component of how legislative decisions in the United States should be shaped.

We’ve also been considering and integrating the ideas of people who have contributed to our understanding of how we shift the current environmental paradigm that we are in. For instance, the political economist Elinor Ostrom’s [1] lifetime research on the principles required for successful natural resource commons management, Mary Christina Wood [2] and her reframing of environmental law in “Nature’s Trust” and Oren Lyons (as described in Wood’s work) who so pointedly captures our societal fracture from natural law — described as a fracture which has caused our ecosystem damage. Layered on top of these ideologies, the Open Environmental Data Project (OEDP) is also concerned with environmental data — how that data moves and who is able to provide and use that data. In this three-part series, we will cover ideas for a framework change on environmental governance (part I), a walkthrough of the interaction diagram (part II), and what will come next in both our near and long-term scope of work (part III).

The Existing Scarcity Framework

How we engage with our natural and built environment is guided by our underlying values and principles. Generally speaking, in the Western world, these values and principles are codified into a system of law for which rules are executed in an administrative fashion by our local, state and federal executive bodies. Our current operating paradigm for this administrative execution in the United States, and as exported around the world to other democratic nation-states, rests on the “scarcity” approach or “unlimited indulgence” (Wood, 2013). The scarcity approach states there are not enough raw materials to go around and therefore we need economic, political and legal frameworks that divide up the scarce materials among the population that needs them to survive. It allows for the economic engine of the free market [3] to continue its growth on the assumption that the scarcity legal and regulatory market will “check” this force. Implicitly, it also states that we are the sole beneficiaries of the resources on this planet and casts the needs of other non-human species aside. In a globalized world, run by the current system of capitalist incentives, the result is privatization of goods and services usually at the sacrifice of public resources like air, water and land.

The scarcity approach codifies into law permissions to foul the natural environment, while the language of the law boasts restoration. Any ecological restoration efforts are tacked onto industrial pollution permits, versus restoration and generative actions as the primary goal. Our only attempt to infuse a check or balance to the administrative actions of agencies is the judicial branch. However, due to “judicial deference” — where the courts defer ambiguity around a case to the discretion of the executive agency interpretation — the system is devoid of any strong checks and balances, especially from the communities that feel the impacts of the decisions (Wood, 2013).

Departing from this scarcity model moves us towards one of imagining and managing natural resources as if they were in , a model that first relies on reconstructive attempts to manage and solve for the massive damage that has been wrought under administrative permitting practices. In this phase of reconstruction, there is substantial room for environmental data, information and transformative governance structures to lead the way. The second part of this model is asserting a trust-based [4] framework of abundance.

A switch from the scarcity framework

In the United States we currently work within the framework of administrative law. Some of the OEDP work will be within this administrative framework and will focus on new ways to work within these systems — such as the critical vehicle that standardized public witness commentary plays in Congressional lawmaking and in ensuring that the rules asserting those laws work for communities.

However, the administrative law framework, which is top-down, bureaucracy heavy, and situated in administrative coordination and jurisdictional problems, is ripe for the potential to change and to think about new ways in which to approach critical environmental issues. We have an option to do differently, do better and alter the model in which we are governing our shared environmental resources. This is what we intend to set forth here as we outline a trust-based approach that seeks to generate more natural resources by creating a system of checks and balances on the existing administrative legal system and that always defaults to increasing the integrity of the landscape.

In trust-based environmental frameworks we are taking in land (or another measurable entity) and holding it in reserve. It is set and finite, and not necessarily implicated as an entity for creating additional resources. Instead of putting land aside to protect, we are interested in how we can create more shared environmental resources so that we can build collectively managed, rich and robust ecosystems. What we are attempting to do is figure out how to layer the trust philosophy with — how do we generate more natural resources? How do we generate better protections for those resources? How do we approach the management of resources with an inborn sense of long-term thinking?

The North American Wetlands Conservation Act is a granting program run by the United States Department of Agriculture (USDA) that provides financial resources to conserve existing wetlands. This is a proactive “conservation approach” but its program resources are a small fraction of what supports the “wetland banking” program in the United States. The wetland banking program allows for economic development at the cost of virgin wetlands as long as their “equivalent” is built somewhere else. With a generative environment approach, the services that the wetland provides to humans, plants and animals would be prioritized (via funding allocation) over the ability for industrial economic development. Within this framework private industry would have to make the case to individuals living near and using the wetland for how their business improves the quality of the public good in that location. This approach diverges from the status quo in which the administrative regulatory arm defaults to permitting the economic development to occur. Within the generative environment framework, the wetland is held in trust by a self-defined group of individuals who have a fiduciary responsibility to maintain the integrity, quality and future functioning of the wetland.

For example, this could mean rethinking the boundaries of public lands and who is responsible for stewarding and protecting them. Instead of having “take permits” on public land for hunting one could be issued a “planting permit” and the actions required are to plant three plots of a species of plant that deer and other desirable animals frequent. Once you’ve planted those species only then are you allowed to engage in hunting activities. Or perhaps instead of applying to the city for a development permit, you must bring your case to an external body of environmental trust individuals that decide whether the landscape carrying capacity has been reached. If their answer is yes, then the development permit can only be for actions that enhance the existing natural capital.

It is important to understand this generative environmental approach to environmental policy and practice because it should inform how we handle environmental tactics, including one of our primary interests, data. In the data space, when we add a piece of data and provide access to a dataset with a uniform language, we’re creating a thoroughfare for people to access, provide and use environmental data in ways that are generative. Our long-term vision is a model that is both abundant and generative — we put data in, it creates more utility and supports the development of resource proliferation. For instance, a community contributes data that shows air quality is significantly worse during the evening hours of a day. This data provides a check and a balance in its utility and helps reshape the environmental quality of that area. This could be the positive environmental generative results of combining an environmental trust framework and the networks that emerge through collective data sharing and management.

Although we cannot (and are not trying to) make the argument that more data is always better, we are suggesting that in the environmental space, open data and collaborative governance can create new possibilities for how environmental management and decision-making happens. When you have two pieces of data, it doubles the power of the system, shows that you and your neighbor and the neighbor three blocks away are similarly bound by an environmental consideration. The AQI at your house may be 200 and perhaps that is accurate or a technical fluke. But when the next door neighbor, and the neighbor down the block and a neighbor three blocks away all read in the 200 range, then you’re building a case, a narrative and the roadmap for action. This ability to connect through information and data sharing provides more value, and the foundation for more people to become interested in contributing data once they see it working for their community.

What might be possible with a generative environment framework

What if we approached rewriting our legal environmental framework with a generative environmental paradigm, which simply put, articulates that with calculated actions there are enough resources to fulfill life for all humans, plants and animals and that our governance system should protect this environmental public good. All human actions under this framework must improve the health of the landscape. In addition, this is a fundamental tenet in various indigenous land ethic approaches and provides a local system of checks to our national regulatory infrastructure. One could imagine this generative environmental approach as a system that “interoperates” with state, national and international environmental policy mechanisms to not only provide a check on how those policy mechanisms actually impact the integrity of the landscape, but also offers a mechanism for a dialogue between the people that live there and the regulation that impacts them. This is the framework we are trying to build and within this spark an innovation ecosystem.

Unanswered questions

The reality of the world today is a system of goods, services and people that are in constant motion from one location of the world to another location in the world. While local economies still exist, the threats to autonomously and generatively managing their resources grow larger every day with the increased globalized flows of raw materials. The concepts outlined in a generative framework require a localized and long-term mindset with regards to the resources underneath our feet, but also in the approach to resources shared within a closed global system like water and air. Some parts of the world are still engaging with ecosystems that have seen very little change (like inner parts of the Amazon) while others are managing a transforming landscape abetted by mechanisms enhanced by climate change (hurricanes in the U.S. Gulf Coast, wildfires in the western U.S.). And then there are the landscapes that have been degraded due to extractive industries. The only way to achieve a generative framework in these instances is intense investment in restoration activities and a moratorium on extractive activities. Each environmental management area (climate change, environmental pollution, land management) requires some nuance of thought in approach, but the core value we are attempting to outline in this framework is to continually assert a generative mindset.

In Part II of this series, we will walk through the high-level interaction diagram, designed to pair natural resource commons management with an environmental trend data platform that can identify and shape new leverage points within the existing administrative state. However, before we launch into the technical components of this system there are some unanswered questions we will need to keep in mind throughout our journey:

  • How do we address the globalized nature of raw materials and pollution within a localized framework for providing a generative land ethic?
  • How do we collectively agree on the interpretation of natural limits (for example the value of an existing wetland) as they comes up against community priorities to create physical infrastructure?
  • Humans have varying interests and values about the natural environment. How do we build up an innovation ecosystem around this framework that allows for individuals to engage regardless of their environmental ethics?
  • Can we expect local inhabitants to keep the health of the landscape as their utmost priority within a capitalist system that prescribes value only to the dollar?
  • Is it possible to balance community-driven preservation goals and enact watchdog monitoring of polluting industries while also seeking to better families and communities through economic gains within a capitalist system?
  • How do we create a new generative environment approach that mandates simplicity and doesn’t replicate the complexity of our existing environmental legal architecture?
  • Lastly, dynamic data (and therefore information) really a sub-unit of change for switching our legal and regulatory system from a scarcity mindset to an abundance mindset?

PART II

Explanation of the Interaction Diagram

The interaction diagram is a visual representation of how we are designing for systems change within our environmental policy, data and decision-making frameworks. In each section we provide an overarching description of near-term and longer-term goals that will lay the foundation for systems to shift in the way we approach our management of natural resources, conduct environmental protection, and generate healthy communities and landscapes. We will dive into the details of this diagram with a brain trust over the coming months.

Administrative State (left side of interaction diagram)

We begin this journey within the existing Administrative State through which laws, statutes and rules can limit the impact of the free market and its resultant harm on communities and the environment. The Administrative State and the ensuing power vested in branches of government are designed with checks and balances in mind. Between people and their government, and in the U.S., these checks and balances are executed through a representative democracy where the will of the public is communicated through a representative person who is responsible for communicating this to a congress of people that deliberate, write and vote to pass laws. Those laws are then enacted by the executive branch and the executive actions are able to be challenged based on judicial branch processes. This form of democracy can be found in many different permutations around the world.

However, these systems, like many human systems, are fraught with bias, coordination and jurisdictional problems that are easily exploited by natural resource extraction industry lobbyists. Data systems are now being built to provide a more accurate, near-real time and insightful understanding of bills in process and how they will impact a constituents bottom-line whether that be an NGO, oil company or a fast food restaurant [5]. Yet, these are expensive subscription services and there are few alternative tools available free of, or at a reduced, charge.

The result is a fractured system where the primary opportunity for people to express their opinions is through structured public commentary portals. This system does have the power to alter the executive branch actions if the comment is structured powerfully and carefully, but acceptance of comments can be at the discretion of the people synthesizing the comments. And this is wherewe will begin our administrative state work, through improving upon legislative public commentary methods by prototyping a “Civic Voice Archive” using the Stakeholders, Individuals, Data and Evidence (SIDE) framework. Due to COVID-19 there is a historic opportunity to modernize the way Congress digests information from their congressional district offices. The Open Environmental Data Project (OEDP) is seizing this opportunity by piloting a SIDE event with congressional representatives and their constituents on environmental matters in 2–3 locations across the United States. This pilot will provide research and insight into the technical architecture for creating a prototype of a Civic Voice Archive that provides a qualitative contextual picture to situate lawmaking within. This prototype will provide a baseline understanding of environmental issues to the community via an archive in addition to adhering to standards that make the information usable and admissible to Congressional Committees when they deliberate bills and funding that impact U.S. communities. In the longer-term we anticipate building this model out so that other forms of public commentary (on rulemaking, etc) can have applicability outside of congressional rule-making, such as during the NEPA process.

Generative Environmental Framework (right side of the diagram)

We can either continue working within our existing structures or we can design for the reformation of these structures. We are selecting to do both by engaging with the existing structures and recognizing that they are the result of many critical minds trying to compromise within a historical context AND that there is room to reform and create fertile ground for a new socio-technical innovation ecosystem. The overarching principle for this new system design is that governance principles exist in nested tiers. The argument being that we enact them at the smallest scale, for example by starting with a community of 100 people living within a mountaintop ecosystem. Then these governance tiers are replicated as the population scale grows, to the city, the state, and then to the nation.

Let’s begin with an example at the lowest-level tier in the diagram. In this new approach to a localized form of providing input to environmental policy, data and decision-making the group managing/living within the landscape must self-identify their boundaries whether that be through zip code, congressional district, ethnic group or some other form of human group boundary. The next step is to establish clear values and approaches to engaging with environmental resources (such as air, water, plants, animals and minerals) which must be cross-referenced and bound to the limits of nature — an acknowledgment that if you value constant extraction of a resource to build upon your own property then your individual goals will be checked by the integrity of the ecosystem. A system is then developed and carried out by community members to audit member behavior. This is so that if/when an individual/business interest extracts a resource beyond the ability of the ecosystem to restore itself, then their community can audit how these actions are surpassing the integrity of the landscape, supported by scientific data and evidence from the environmental trend platform (described in the next section).

After these baseline values are established the self-defined local group is required to match their rules governing the use of common goods to local needs and conditions. In instances where a resource is not common property (the bank of a river on private land), this point has to be solved for with approaches such as near-term systems for checks and balances to how rules are enacted around pollution, resource use and permitting, and long-term reallocation of public rights to natural resources. This principle in action requires a dynamic approach, allowing for an environmental trend platform to inform the local needs and conditions of the community and then match those to 1) the existing rules decided upon by the community and 2) the measure of ecological integrity. This is also fertile ground for creating a long-term local level check and balance to existing executive rules in action from the administrative state.

The last principle is that the self-defined group shares and agrees upon a common check and balance structure for knowledge and sense-making about the environment. This is the primary place of input of an environmental trend platform. It is the portion of the system that provides for a data-driven check-and-balance of the execution and the monitoring and evaluation of environmental decisions, rules and policies for each defined group. It is critical that the governance piece of this system is respected by both the generative environmental approach (communities, third/civic sector) and the administrative approach (government).

In the near term OEDP will be prototyping ways to create governance decisions through the semi-automation of practices in how groups can: (1) establish collective values that weigh and balance potential competing priorities, (2) build rules for engagement and structures for addressing these rules if they are severed within the group or by existing environmental law, (3) the ability for groups to observe the set of environmental rules they are working under and processes for how to engage with and shift these rules. In the long term OEDP will focus on framework shifts in our existing environmental legal canon to accommodate for these new governance principles.

Interoperation Layers or Systemic Interaction Opportunities

In this section, situated between administrative state and generative approach, we’ve moved up a population tier (e.g. out of a local context and into the space between regional, state and national systems). In this part of the system we envision a layer of mediating socio-technical approaches that will enable productive exchange of check and balance between these tiers. In the near-term this is where we will design around the involvement of individuals in brokering the check and balance activities between the administrative state and the generative environmental framework.

There are three principles that interface between these two existing systems, the first is to provide accessible and low cost means for dispute resolution when the existing administrative legal canon contradicts the rules and sanctions created by the self-defined community in the generative environmental framework. The second principle is that the rulemaking rights and right to provide input on environmental matters of community members are respected by outside authorities. This principle must account for situations both where 1) land ownership is clearly defined, and 2) where a community has a clear right and/or stake in the issue at hand, but with no ownership (i.e. breathing air, drinking water). Within this principle, outside groups must make the case for their development interests (much like how industrial lobbyists do) but the guiding change is that as a private or government entity you have to explain .

The last principle is to use graduated sanctions for rule violation. The usefulness of graduated sanctions in the case of environmental protection is that they can provide rapid and context-appropriate levies based on the significance of the offense (as indicated by those affected when rules are violated), coupled with an assessment of historical violations and the potential for future violations.

The Open Environmental Data Project will be building a prototype of what these layers of interoperation look like in practice when used as a mediating layer between the existing administrative state approach and the generative environmental framework. In the short-term it will require modeling how different prototypes will interact from each system, and how they work together to create a new system of checks and balances. In the longer-term, in an effort to reduce complexity, it will require prototyping new ideas and methodology for how to best optimize for these interactions that satisfy both the existing environmental legal cannon and the generative framework principles.

Environmental Trend Platform (bottom of model)

Currently, the Administrative State approach has little allowance for environmental data coming from non-verified/non-traditional technology (in various forms from analog to digital). This coincides with the increase of low cost and/or open hardware sensors that provide people with the tools to capture quantitative data. The Administrative approach primarily focuses on the necessity of quantitative data in decision-making. This is the case even in places where community input is required or welcomed, and where the combined use of quantitative data from non-verified/non-traditional technology and qualitative data could provide important indicators [6]. We argue that the move towards low cost, community level sensing is going to be an increasing trend and that demand will escalate for its usability. There are clear ways in which agencies can incorporate this type of quantitative data along with qualitative data (and information and knowledge) that provides local and historical experience and observations.

The goal of the environmental trend platform is to create a richer picture of local environmental conditions over time by allowing for a multitude of quantitative and qualitative data to be used other portions of the administrative and generative frameworks as described above. Currently there exist many efforts to harmonize datasets but for these efforts to be impactful in setting environmental policy, and in protection and management decisions, they need to be done in situ with governance processes. In addition, for a complete picture of local environmental conditions, the sources of the data must be multi-sectorial (civic/third sector, public, private). In the near-term, OEDP will engage in prototyping different socio-technical aspects of the platform, such as:

  • Coordinating and combining different sources and different types (dynamic, primary, big) of known quality [7] data.
  • Identifying allowances for different sources of environmental data weighted in their quality within current administrative processes.
  • Prototyping how data can serve as a legislative check and balance on environmental rules in action.
  • Creating a way for environmental data on ecosystem services to be beneficial in collaborative and inclusive planning processes.
  • Framing strategies for usability of coordinated data and the applicability of this data in different use scenarios.
  • Suggesting long-term strategies for simplification of government rules and information to allow for easier interaction and autonomous decision making for communities.
  • Prototyping frameworks for qualitative data incorporation and use as an essential contextual component alongside quantitative data.

PART III

What’s Next

The health of our communities is in trouble. Our environmental protection and management system, despite best efforts, is failing to preserve, protect, and grow our natural resources. Historically, the free market has not bent towards what is best for the planet and its communities and is currently compounded by an ever-growing human population. Our attempts to correct through legal, regulatory and economic mechanisms are stalling, and the complexity of navigating these mechanisms is leaving us with little space to redesign them for a changing climate and a world that has been so significantly polluted upon that we should now be operating in crisis response mode. Though our legal and regulatory structures may have initially been designed to , unrestricted growth and provide guidelines for decisions about limited resources, there are far too many loopholes for this to happen in practice. Agents of unrestricted growth, such as extractive industries, have built their own structure within this system, but one that is dedicated to navigating and dismantling the force of legal and regulatory frameworks under the value banner of capitalism.

We need a new system. One that recognizes that if given the option, humans at a coordinated scale will not always do what’s right for harmonic living within the environmental constraints of our natural system allowances. Furthermore, those with the most financial capital will always continually have access to pristine ecosystems, while the rest will be subjected to growing waste. Instead, we need to start questioning and shifting the systems under which environmental protection and management now operate. In this writing, we’ve laid out the starting place for a potential model in which this can happen. It incorporates the ability for self-defined groups to check the decisions of the existing regulatory and legal arms as they are put into action against the backdrop of ecological integrity. It also allows for collective and coordinated contributions towards multi-level decision-making, giving weight to decisions that will restore, enhance and protect our ecological communities [8] while providing for basic human needs.

We are at a moment in history in which a convergence of crises — the pandemic, racial injustice, economies in decline, and climate — are rapidly converging. We’re also at a moment when the internet is reaching historic penetration rates, the technological applications built upon the internet are becoming available and accessible for communities, and our data practices and frameworks are maturing. In this combination, there is an opening to rethink systems. The work of environmental protection and management squarely sits next to how we address racism and injustice in polluting practices. Our solutions must address decades of environmental mistreatment, which are now amplified by the pandemic, which touches hardest, for instance, communities who have been breathing poor air quality for decades. And our solutions clearly have to cross many boundaries within the landscape of economic reconstruction. Now is the time for us to take what we’ve learned from having to navigate and interact in systems that uphold and allow environmental (and thus health) degradation, and make clear recommendations and steps towards a new model.

In this blog series, we have laid the groundwork for a new model and now it’s time to start workshopping and interacting with it, moving it from theory to practice, breaking off small and near-term pieces while we think longer-term about structural shifts. We are starting with an intentional focus on first improving the existing public input process within the administrative state. In parallel, we will be working through a new environmental data and information system that can provide a local/self-defined group a method to “check-and-balance” the existing environmental legal cannon. This system will leverage existing and new information architecture and decision-making capabilities that establish a shared knowledge platform for which a multitude of science, data and information are welcome — not just the ones that conform and respond to political, institutional or extractive industry will. Testing this model will take time. It’ll show us where we can really only just lay the groundwork with ideas, where technology and data ecosystems are intrinsically part of the solutions that are needed, and how we can generate law and governance practices that are responsive to the current state of our environment and the rights of communities for more integrated measures to be involved in decisions that affect them.

Notes:

[1] 2008. Ostrom, E. Design principles of robust property-rights institutions: what have we learned. Indiana University Press.

[2] 2013 Wood, Mary Christina. Cambridge: Cambridge University Press.

[3] Proponents of free market forces argue that the prices of goods and services will reflect and are determined by a healthy competitive ecosystem of private businesses in interaction with the public institutions. Intervention is required, by the administrative state, to ensure that public goods are not infringed upon by private business activity.

[4] For additional context on the application of data trusts to the environmental space, see our previous writing here.

[5] See for instance .

[6] Within “environmental data” we further define quantitative and qualitative as follows:

Quantitative is the measure of something as it relates to its quantity. In data science it usually refers to numerical and structured data. It can be compared to the quantity of something (more, less) or usually assigned a numeric value. For instance, if we record the amount of particulate matter in the air every six hours and denote its combined value per the space ratio (parts per million of air), then over time we can understand that the particle 2.5 increased or decreased over time. In conservation practice it could mean the abundance and frequency in which a certain animal is noticed at a given location. In practice for OEDP we commonly encounter this type of data as coming from the physical and natural science fields which tend to produce high volumes of data usually reserved for scientific institutions and administrative functions. It usually requires a high-level of technical training to interpret and tends to hold the most meaning to those entrenched in scientific institutions.

Qualitative data provides description about the state of something. In data science it refers to unstructured and non-numerical data. It can be found in the form of raw observation notes, interviews or other types of video/audio recordings, and photographs. For instance a method used to capture this type of data, photovoice, is a way for an individual, provided with a camera, to take photos of what is important to them (perceived value). In the air quality data example noted above in “quantitative data” this approach could come in the form of an image taken of an elderly woman on a respirator. In the conservation approach it could mean recording a photo of the animal or describing how it appeared (slim, bruises, cuts). In practice for OEDP we refer to this type of data to indicate the ability to portray contextual information that can provide additional depth, meaning and perspective to environmental scenarios. Outside of public commentary and photographic evidence, less value is typically placed on this kind of data for administrative functions.

[7] Known quality means that we are able to discern how/when/by whom/and why the data was collected within a data catalogue.

[8] Used to note the multi-entity nature of communities — humans and the surrounding natural ecosystems.

Building environmental hardware interoperability while changing the way data is shared, verified & used. Learn more at openenvironmentaldata.org

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