New York (November 14, 2016, 12:16 PM EST) -- Last week's election of Donald Trump as president portends many changes in public policy and government administration, including in the realm of environmental protection. While it is far too early to predict the exact ways in which those changes will play out or how they will affect the role of citizen science, we believe citizen science is here to stay. Indeed, we postulate that citizen science activism and its potential significance in disputed, controversial or highly publicized environmental matters most likely will grow in inverse proportion to any perceived or real paring back of environmental enforcement and regulation under the new Trump administration. With that backdrop, we discuss the current state of affairs and some of its challenges and opportunities.
Citizen Science is what its name suggests: the pursuit, collection, analysis and communication of "scientific" information that may be of interest on any topic. Citizen science has been defined by the Office of Management and Budget as voluntary public participation in the scientific process "in ways that may include formulating research questions, conducting scientific experiments, collecting and analyzing data, interpreting results, making new discoveries, developing technologies and applications, and solving complex problems."
For our purposes, we will focus on the environmental field, one of the more popular and rich areas in which citizen science has taken root. Our goals here are to (1) describe the landscape and current frameworks surrounding citizen science; (2) discuss some of its promises; (3) identify potential perils; and (4) suggest concretely what prudent, interested parties might do about this brave new world, both proactively and after the fact.
At its core, citizen science involves the collection and examination of data or other information by ordinary citizens in two broad forms: direct and verified. Direct citizen science consists of raw (not validated) data or information collected by the citizen. Verified citizen science concerns those data that have undergone validation and verification by a professional scientist qualified in the relevant field. Both these forms of citizen science are widely used and have utility. Within the realm of citizen science, there are various sub-fields and manifestations.
For example, included within citizen science are crowdsourcing and crowdmapping. Crowdsourcing is when an agency or program calls or solicits openly for voluntary assistance from a large group of individuals.
Crowdmapping is a subset of crowdsourcing whereby individuals or organizations call upon volunteers for geographic information or other information within a particular geographical area. This information often is used to make collaborative maps.
President Barack Obama's administration has made a pointed effort to encourage federal agencies, including the U.S. Environmental Protection Agency, to incorporate citizen science and crowdsourcing into their existing programs.
The administration has stressed the following principles with respect to citizen science:
1. Equal standards – holding citizen science to the same standards of quality as traditional or conventional science;
2. "Open-data policy" – making the data readily accessible to the public; and
3. Project quality – the citizen science project of the federal agency should "contribute directly to a goal or need" of that agency's mission.
In some cases, citizen science is a "bottoms up" enterprise, where the collection of data is designed and accomplished by individuals interested in the subject, either personally or as an organization. In other cases, toolkits are provided by a project "host," which can include regulatory agencies such as the EPA. In fact, the EPA has initiated a number of different programs in support of the Obama administration's open-data policy and its advocacy of citizen science.
For example, the EPA maintains several publicly accessible databases into which citizens may enter data and from which they can share data. These include: the Real-Time Geospatial Data Viewer,
which is a free, web-based tool that anyone may use to upload air quality data and observe how this data interacts with other data sets; and the Facility Registry Service, a website that allows anyone to search and view detailed facility reports for all regulated facilities in their area.
Perhaps more controversial is the EPA's Community-Focused Exposure and Risk Screening Tool (C-FERST), which is another free, web-based database that provides a mapping tool to assess or understand cumulative risk in a community.
The fascinating thing about C-FERST is that it allows citizen scientists to compare air quality data that they collect with data from other sources or models. Its purpose, according to the EPA, is to "provide information to help users identify environmental issues in their communities, learn about these issues, and explore exposure and risk-reduction options." As we discuss further below, that noble aspiration necessarily intertwines with enormous potential for mischief and complication in the traditional exercise of local, state, and federal permitting and regulatory oversight of activities and businesses that have inherent environmental impacts.
Toolboxes will vary by project, but are typically available online and include links to guidebooks, reports on different equipment, techniques for collecting and monitoring data, and blogs or news stories related to the project. Lay mapping, sometimes referred to simply as "mapping," is a tool for crowdsourcing citizen science activities within a geographically limited area.
The project will update a map of the area with observations submitted by citizen scientists via text message, voicemail, email or uploaded directly to the online host. Typically, anyone can submit to and view the reports on the map. The maps may also include pictures of the observed area.
It is self-evident that more information and data, additional observations and an enlargement of the database against which particular scientific theses or conclusions are tested is, on the whole, a good thing. This assumes, of course, that weaknesses or flaws in the collection, production and dissemination of citizen science – each discussed, along with other concerns in the following section below – are either overcome or corrected. All stakeholders have an interest, ultimately, in public policy and individual decisions that rest soundly on good science, where science is relevant.
A few members of the regulated community might reflexively anticipate that all citizen science will be bad, at least for them. We question that assumption. All too often, for reasons of resource limitations, compression of time and other factors,
regulators and other decision makers, including those subject to regulation, make important decisions about environmental health and protection, human health and the impact of releases into the environment on the basis of projections, modeling and other inferential or methodological means. Bits of data strewn across the landscape of "available literature" are strung together to draw inferences, presumptions and conclusions. Expanding the universe of data that has been collected in the real world can only help improve the accuracy of our assessments of risks and impacts. (The preceding and other observations in this section assume, for its purposes, that fundamental weaknesses or potential flaws in citizen science are neutralized or overcome before its results are utilized.)
To take but one illustration, the (fictional) Gevinch Corporation manufactures a very important chemical intermediate used in numerous industrial and consumer applications, at its facility in a heavily developed area adjacent to the Mississippi River, where industry and residential communities live side by side. A risk assessment, newly initiated by the EPA, concludes that this principal product manufactured singularly by Gevinch poses risks of cancer previously unanticipated when released into the ambient air surrounding the facility. The facility has long been in compliance with its permit, and the local cancer registry – as well as employee health records at the plant – do not indicate any disproportionate increase or incidence of the suspected cancers in either population.
However, based on the new risk assessment, the EPA and its state counterpart conduct a complicated modeling exercise, resting on various assumptions, taking into account all manner of sophisticated "fate and transport" dynamics in the dispersion and transformation of the chemical into "daughter products" under normal ambient conditions. On that basis, the regulators calculate that if the plant were to release a total of more than 42 tons per year of the newly assessed chemical, the community would face unacceptable levels of risk.
Hearing this, energized activists in the community fan out across adjacent neighborhoods, armed with toolkits and other devices provided by both federal/state regulators and environmental nongovernmental organizations to take samples of ambient concentrations. Senior management at the Gevinch Corporation shivers at the prospect of what these "citizen scientists" will find, though neither they, the regulators nor the community are quite sure of what the newly collected data will show.
After an exhaustive collection of data far exceeding what the agencies themselves typically collect, followed by rigorous application of the quality controls and peer review required by both the letter and spirit of OMB and EPA guidance, the large data set is reduced to a credible, substantial collection of ambient concentrations of the chemical and its degradation products. Lo and behold, it turns out that in the actual environment, the chemical dissipates and degrades to a far greater degree than expected, and emissions a full order of magnitude higher than the 42 tons per year estimated by the finest "modeling" methodologies would pose no greater risk to the community than exists in countless communities throughout the United States.
Many have already observed that there are several pitfalls from which citizen science may be prone to suffer. In the environmental setting, these pitfalls include: poorly or subjectively designed studies with a result-oriented predisposition; lack of professional expertise in data collection and analysis; skewed sampling; and data manipulation. In the simplest terms: when it comes to matters of environmental science, the protection of human health and the environment, and risks associated with exposures to various releases and chemicals in the environment, different segments of our society come to the issues with a range of experiential, ideological, moral and belief biases.
It is hardly arguable that we live in an age in which substantial segments of our society are suspicious and distrustful of the government, the "experts," corporations, public health officials and other players in the constellation of our national institutions. It has become difficult, if not impossible, to defend cases before juries when the contestants are (1) a sympathetic, lone individual or group of ordinary people versus (2) a faceless, large multinational corporation alleged to have failed to protect the community from hazards that one or more experts are willing to testify under oath have caused or risk serious injury. Why? Because of the lack of trust in other so-called "experts."
Citizen science in the environmental field operates in this highly charged, skeptical environment. Many fear that citizen scientists will utilize the opportunities, toolboxes and sponsorships available to them to prove that which they already believe: the modern industrial state is poisoning its people. Armed with more equipment and encouraged by the government, local communities may set about seeking to establish that which they fear, suspect or think they already know: harmful levels of pollution are everywhere.
This is not to say that populations are not exposed to pollution or that all current exposures are benign. Rather, it is to suggest that one of the troublesome aspects in the emergence of citizen science is its ready utility by advocates and lawyers predisposed to believe or argue – sometimes for personal self-interests – that harm is being understudied, underestimated or undermeasured. One must therefore look very critically at the design, conduct and analysis of the collection of environmental data to be sure that intentionally or unwittingly such citizen science is not feeding today's rampant skepticism, if not paranoia. In the succeeding section, we address some of the ways in which that care can and should be taken.
What Should Lawyers Do About the Risks and Challenges of Citizen Science?
A considerable body of academic literature has developed around the subject of data quality and systematic or sampling biases in citizen science.
Notably, there has yet to be judicial consideration, or a great deal of legal academic discussion, about the value and implications of citizen science, particularly as it relates to the highly contested and often controversial subjects of facility siting, environmental protection standards and human health risk assessments. Yet, the risks and rewards for protagonists in all manner of environmental and associated public health disputes are potentially enormous.
We postulate that parties who may be affected by the theories and conclusions advanced by or drawn from citizen science can and should address them critically both prophylactically and after the fact. Beginning with prophylactic measures, it strikes us that an interested party can readily identify – given today's wealth of publicly available databases – data gaps that may be relevant to important regulatory, permitting or other public policy decisions affecting the operation of industrial and other enterprises whose impacts upon the surrounding environment and communities may be an issue. Where such data gaps exist, interested parties other than ordinary citizens have the opportunity to fill those gaps themselves. In other words, why wait for a citizen science project, potentially ill-designed or poorly conducted, to fill a known data gap?
Historically, the regulated community has tended to be wary of collecting data for fear of what it might show. The infamous "bloody glove" experience in the O.J. Simpson trial is an instantaneous reminder to lawyers and nonlawyers of the perils of advancing evidence as proof of the truth of an assertion before one knows whether it is true. With that fear in mind, some have utilized the protections afforded by the attorney-client privilege to undertake confidential data collections and analyses, hoping they might "deep six" any bad findings or, alternatively, waive the privilege and publicly assert the information, if helpful.
More recent history has demonstrated that the use of the privilege for such purposes is a thin veil, leading to still further caution about initiating voluntary data collection.
The world is changing, however. The advent and undoubted future growth of citizen science puts at risk the implicit assumption that by not asking the question or collecting the data, a regulated party may proceed more safely in an atmosphere of limited data than in an atmosphere of comprehensive data. Stated differently, it may prove to be the case that the threat or risk of prospective citizen data will and should compel more proactive data collection and analysis by parties whose conduct, facilities or releases and products are the subject of critical review from the standpoint of environmental impacts or human health risks.
A second and more limited prophylactic measure for the regulated community and its defense counsel is to be highly alert to, educated about and possibly engaged collaboratively with local citizen science projects. If the data will be collected and analyzed anyway, is it prudent to rely on the citizen scientists or individual regulators to ensure the absence of critical biases or other flaws in the collection, methodology, assumptions and analyses of such projects? To us, the question answers itself and is rhetorical.
Indeed, a company that proactively engages with enlisted citizens in joint pursuits may generate significant goodwill that pays later dividends. For example, among our clients, one elected to join citizen scientists in post-cleanup monitoring of an old industrial site and to collaborate with citizen scientists in the remediation of a habitat. Both experiences reinforced positive ties with the community, ties that may be beneficial to the company in the future. A cautionary note is warranted here, however. Looking ahead to possible future litigation defense, there may be issues with the admissibility of citizen science results (or whether an expert can rely on information or data collected through citizen science). If a company is involved in the underlying citizen science project, it could give rise to an inference that the results constitute admissions against interest.
A third and more dramatic prophylactic measure would be to identify practices and materials whose risks are either known or believed to be so great that the prospect of collecting and analyzing additional data is demonstrably untenable. One can posit that if the circumstances are so fraught with risk, should those practices or materials be changed ab inito?
Finally, there are certainly a number of other things that lawyers and their clients should be anticipating and doing in respect of citizen science to minimize its perils and realize its promises, after the fact. The first of these, of course, is to insist that the science meet the rigorous tests enunciated by the Obama administration, embraced by reputable members in the scientific community, and expressly stated by the EPA in its policies, programs and guidance.
According to the administration's policy on citizen science, citizen science should be held to the same standard as traditional science.
This broad principle is especially true when citizen science is utilized in a professional capacity, such as peer-reviewed scientific studies by scientists or to inform an agency action. Second, one should insist that agencies strive for an open-data policy where all project data, applications and technologies are available to the public. Failing that, citizen science could operate more like a Star Chamber.[[N:See generally Pennsylvania v. Muniz, 496 U.S. 582, 594-97 (1990) (describing the Star Chamber as a "starkly brutal" "inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source" or any ability to confront one's accuser or the purported evidence).]] And lastly, we should ensure that citizen science projects truly engage "the public" (i.e., not just particular protagonists) and "contribute directly to a goal or need" of the agency.
If lawyers and their clients are proactive in facilitating and reaping the benefits of citizen science, instead of merely reacting to its potential downsides, citizen science may become a welcome development in the environmental field for all those involved.
This article was first published in Law360.