Identifying Project Goal

Why You Should Read this Chapter: If you don’t know where you want to end up, you will never get there.  Thus, it is important to identify your project’s goals early.  This process involves the evaluation of potential uses of the information that you collect or generate as you carry out your project (i.e., information use).  Here, we outline examples of information use and, at the same time, explain the quality standards that can limit the use of information that is collected or generated by citizen scientists.  Understanding this information will help assure that your project’s goals are achieved. 

The use of citizen science-generated information is subject to various legal standards (i.e., “quality standards”). [1] These standards serve to establish a level of quality that the information must meet before it can be used in a certain way (for example, in a court proceeding or agency decision).  The terms “credible information” or “reliable information” may be used in place of “quality information” in some contexts.

Two simple inquiries can help you identify quality standards that are relevant to your project’s ultimate goals.  First, who will use the information?  Potentially, you seek to use the information yourself.  Alternatively, you may want the government to use the information (e.g., use by a federal, state, or local governmental agency, etc.).  Second, how will the identified user ultimately use the information?

Making Connections Between Chapters:  Chapter 1 was directed at helping you take the first steps of your project.  Now that you have established your project’s beginnings, you should take time to consider its possible endings.  This involves an examination of the potential uses of the information that might be collected or generated during your project’s progression (i.e., “information use”).

This chapter highlights examples of information use. Along the way, we identify legal standards that can limit the use of information that is collected or generated by citizen scientists.  Doing so will help reveal the path that you should take to achieve your project’s goals.

It may also be useful for you at this point to note that information collection is the topic of Chapter 3, and that information generation is the topic of Chapter 4 and Chapter 5.

You can use the information that you collect or generate during your project in many ways.  Depending on how you want to use the information, it will be subject to different quality standards, which can range from lenient to strict.  While the laws and regulations that establish quality standards are too varied to allow a strict differentiation into clear “lenient” and “strict” categories, we attempt below to indicate where different standards fall along this continuum.  It should be stressed at the onset of this discussion that even when the use of information is not formally limited by quality standards or when it is limited only by lenient quality standards, the information’s quality still impacts how effective it will be in advancing your goals.

Uses by Citizen Scientist

No Legally Imposed Quality Standards

  1. Education
  2. Stimulate Public Awareness
  3. Inform Legislators

Some potential uses of information that you have collected or generated are not subject to legally imposed quality standards.  For example, you may use the information to increase knowledge in educational campaigns, to stimulate public awareness, or to foster community engagement.  Or you might want to contact your elected representatives to influence the development of new laws. You can provide them with the information that you have collected or generated by phone, email, letter, or otherwise.  Although there are no legal rules governing the quality of the of the data for these uses, you obviously still want to ensure that it is of as high a quality as possible so that you can make a compelling argument.

You might instead want to provide the information to a regulatory agency or use it as evidence in a court case such as a citizen suit against a polluter.  In these situations, the use of the information, either by yourself or by a government agency, will be subject to legally-imposed quality standards.

You can provide information to regulators in a variety of contexts.  First, you can provide an agency with the information that you have collected or generated to influence the development of new regulations.  For example, when an agency uses notice and comment rulemaking to propose the adoption of a new regulation, members of the public can submit comments in response to the proposed regulation during an allotted window of time.  After closure of this time window, comments are no longer accepted.  At the federal level, opportunities for public comment during notice and comment rulemaking are generally published in the Federal Register or can be found on the agency’s website.[2]  Each year, the EPA receives millions of comments on its proposed rules, notices, and other actions which are posted on its dockets at regulations.gov.[3]

If an agency is going to rely on the information you have submitted as a basis for its eventual decision, then the information must satisfy certain quality standards.  Federal and state agency decisions are subject to judicial review.  For example, the Administrative Procedure Act (APA) directs courts that review federal agency actions to “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “unsupported by substantial evidence.”[4]  Standards in state courts are similar.  Although these standards are not particularly burdensome, because courts grant considerable deference to agencies’ scientific expertise, they nevertheless provide a check on the quality of the information that forms the basis for agency decisions.

If an agency does not have an ongoing rulemaking proceeding to which your information is relevant and if you believe an agency should issue new or revised rules to address the situation, then petitions for rulemaking provide an additional opportunity for you to use the information that you have collected or generated.  Indeed, the APA requires each federal agency to provide “an interested person the right to petition for the issuance, amendment, or repeal of a rule.”[5]  Federal agencies have implemented different processes for the submission of petitions.  The EPA, for example, provides opportunities for the public to submit and view previously submitted petitions on its website.[6]  Similar opportunities for public engagement to influence the development of new regulations exist at the state level.

You might also submit the information to an agency in the hope that the agency will use it to bring an administrative or judicial enforcement action against someone who is violating the law.  For example, a government may use the information as evidence in a civil lawsuit or a criminal prosecution in a federal or state court.  In these instances, the quality standards discussed below concerning citizen use of the information in a citizen suit would apply.  Alternatively, a state or federal agency may use the information in an administrative adjudication.  The hearing officer in an administrative adjudication will follow quality standards that are similar to those in federal and state courts, though generally somewhat more flexible and lenient.  For example, at the federal level, the APA indicates that “any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.”[7]  At the state level, the Revised Model State Administrative Procedure Act (MSAPA) provides similar guidance;[8] not all states, however, have adopted this model statute.

Finally, you may use the information that you have collected or generated to stimulate future independent agency action.  In these instances, the information serves to call an agency’s attention to the problem.  The agency may then independently act to verify the information through its own information generation procedures and may initiate enforcement proceedings.[9]  Some federal regulations expressly require states to solicit public participation in the collection of information and require state agencies to comment on citizen-generated information.  For example, an EPA regulation requires states that implement the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), and the Safe Drinking Water Act (SDWA) to “provide for, encourage, and assist the participation of the public.”[10]  With respect to the CWA, EPA regulations require each state that is developing and updating its list of impaired waters to “assemble and evaluate all existing and readily available water quality-related data and information.”[11]  Moreover, the CWA regulations specify that state agencies should actively solicit the help of members of the public “for research they may be conducting or reporting.”[12]  EPA regulations also specify that “[e]ach agency administering a permit program shall develop internal procedures for receiving evidence submitted by citizens about permit violations and ensuring that it is properly considered.  Public effort in reporting violations shall be encouraged, and the agency shall make available information on reporting procedures. The agency shall investigate alleged violations promptly.”[13]  Some state statutes also require state agencies to actively investigate complaints made by citizens concerning violations of environmental laws (see Appendix 2).[14]

State and federal laws also provide standards that may limit agency use of some types of information in all kinds of administrative actions.  For example, the Information Quality Act (also known as the Data Quality Act) directs the Office of Management and Budget (OMB) to adopt guidelines for federal agencies to address the goals of ensuring and maximizing the “quality, objectivity, utility, and integrity of information.”[15]  Among other ways of promoting these goals, OMB guidelines direct federal agencies to develop a process for reviewing the quality of information before it is disseminated by the agency.[16]  In a second example, the Endangered Species Act requires federal agencies to make species listing determinations (e.g., as threatened or endangered) “solely on the basis of the best scientific and commercial data available.”[17]

At the federal level, the EPA’s “Information Quality Guidelines” limit the agency’s uses of “existing data and information generated by third parties to inform its decisions.”[18]  These guidelines require “the quality and scientific soundness of this type of data to be reviewed and documented prior to use.”[19]  These quality standards are expounded upon on EPA’s website.[20]

State agency regulations or guidelines function similarly to the EPA’s Information Quality Guidelines.  For example, various state agencies have express authority to consider “credible” information in enforcement actions, administrative actions, or both (see Appendix 2).  The definition of “credible” varies between states.  In some states, information is credible if its collection conforms (i) to accepted scientific practice; (ii) to federally recognized standards; or (iii) to state-specific protocols.  Iowa law provides an example of a relatively stringent quality standard imposed to ensure that the information is credible.  To submit water data to the Iowa Department of Natural Resources (DNR), citizen scientists must first submit a “volunteer water quality monitoring plan” for DNR approval.  The plan must include a “statement of intent[,]” the names of all participants, the duration of the monitoring effort, the “[l]ocation and frequency of sample collection[,]” the “[m]ethods of data collection and analysis[,]” and “[r]ecord keeping and data reporting procedures.”[21]  In addition to this, citizen-submitted data must be approved before being considered credible.[22]  To be approved, data must be submitted by a “qualified volunteer” who must request that it be deemed credible at the time of submission.[23]  “[Q]ualified volunteers must have the training and experience to ensure quality assurance and quality control for the data being produced, or be under direct supervision of a person having such qualifications.”[24]

Various quality standards govern citizen lawsuits.[25]  First, the quality of the information must be sufficient to bring a claim.  Federal courts require that an attorney filing a complaint to initiate a lawsuit must certify “that there is (or likely will be) ‘evidentiary support’ for [each] allegation, not that the party will prevail with respect to its contention regarding the fact.”[26]  Generally, requirements in state courts are comparable (see Appendices 1 and 2).  You may want to use the information to bring a lawsuit against a polluter yourself.  One mechanism for such a lawsuit is a citizen suit under one of the federal environmental laws.  Citizen suits are lawsuits that are brought by a private citizen (i) against an individual, corporation, or government body for engaging in conduct prohibited by a statute or (ii) against a government body for failing to perform a duty required by law.  Various federal environmental statutes, including the CWA, RCRA, SDWA, the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Endangered Species Act (ESA), and the Emergency Planning and Community Right to Know Act (EPCRA), allow private citizens to bring lawsuits against violators.

Second, when submitting evidence at trial or in support of a motion for summary judgment, you must authenticate that evidence, which requires, among other things, maintaining records establishing the “chain of custody” of the evidence.  To satisfy the requirement of authentication in federal courts, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[27]  Generally, requirements in state courts are comparable (see Appendix 2).  You should also note that if you are relying on government-generated information or monitoring reports that the permittee submits to the government, then the information is self-authenticating.

Finally, quality standards specifically serve to limit the introduction of “scientific” evidence in trial.  It should be noted that some information that you may collect or generate will not be considered scientific (e.g., a picture of an industrial facility that is discharging a pollutant into surface water).  In these instances, layperson testimony is sufficient to introduce the information.  However, if the information is deemed scientific (e.g., information generated via an interpretation of a data output from a technical instrument), it must be introduced through expert testimony and is subject to stricter quality requirements.  This is because scientific evidence is believed to carry greater weight in the minds of jurors than evidence deemed non-scientific.  In federal courts, judges use an approach known as the Daubert standard to make a preliminary assessment of the quality of the information.  In doing so, federal judges consider whether:

“(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”[28]

While judges in many state courts also use the Daubert standard when assessing the quality of scientific evidence, others use different standards, although these are generally similar (see Appendix 2).  Importantly, under each standard, the method by which data is collected and interpreted impacts whether the information will be allowed in a trial.

A final point is applicable to multiple uses of the information, but only in certain states.  Several states explicitly forbid the use of certain illegally-collected information in court or in administrative decision-making (see Appendix 2).  Of these, Wyoming most directly implicates citizen science: information collected in violation of the state’s data trespass law is not “admissible in any civil, criminal, or administrative proceeding.”[29]  Moreover, any information fitting this description that is “in the possession of any government entity . . . shall be expunged from all files and databases, and shall not be considered in determining any agency action.”[30]  Several other states forbid the use of information illegally collected by drones under some circumstances.[31] (see Appendix 2)

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[1]  We emphasize that this chapter is only introductory in nature.  Additional background information can be found in Appendices 1 and 2 of this manual and in a recent report published by the Commons Lab of the Science and Technology Innovation Program.  See James McElfish, John Pandergrass & Talia Fox, Clearing the Path: Citizen Science and Public Decision Making in the United States (2016).

[2] For a comprehensive source compiling pending agency actions available for public input, see Regulations.gov, https://www.regulations.gov/ (last visited May 1, 2017).

[3] Additional information can be found on EPA’s website: See Environmental Protection Agency, EPA Docket Center, https://www.epa.gov/dockets (last visited May 1, 2017).

[4] 5 U.S.C. § 706 (emphasis added).

[5] 5 U.S.C. § 553(e).

[6] See Environmental Protection Agency, Petitions for Rulemaking, https://www.epa.gov/aboutepa/petitions-rulemaking (last visited May 1, 2017).

[7] 5 U.S.C. § 556(d).

[8] M.S.A.P.A. § 404.

[9] For example, Tonawanda, NY is a success story on this front.

[10] 40 C.F.R. § 25.3.

[11] 40 C.F.R. § 130.7(b)(5).

[12] Id.

[13] 40 C.F.R. § 25.9.

[14] See, e.g., N.J. Admin. Code § 7:7A-16.19; N.Y. Envtl. Conservation Law § 19-0503; Utah Admin. Code § R317-8(1.9); Vt. Stat. Ann. tit. 10, § 8020.

[15] Information Quality Act of 2001, Pub. L. No. 106-554, § 515, 114 Stat. 2763 (Dec. 21, 2000).

[16] Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452, 8460 (2002).

[17] 16 U.S.C. § 1533(b)(1)(A); 50 C.F.R. § 424.11.

[18] Environmental Protection Agency, Scientific Integrity Policy (2012), at 2.  As of June 2017, the EPA continues to refer to the 2012 policy document.  Environmental Protection Agency, Policy on EPA Scientific Integrity, https://www.epa.gov/osa/policy-epa-scientific-integrity (last visited June 21, 2017).  In February 2017, a bill on scientific integrity was introduced in the Senate, and in March 2017, a similar bill was introduced in the House.  Scientific Integrity Act, S. 338, 115th Cong. (2017); Scientific Integrity Act, H.R. 1358, 115th Cong. (2017).  The former aims to promote open exchange of data and findings.  Both have been referred to a relevant committee or subcommittee.

[19] Environmental Protection Agency, Scientific Integrity Policy, supra fn. 18.

[20] Environmental Protection Agency, Doing Business with EPA: Quality Specifications for non-EPA Organizations, http://www.epa.gov/quality/exmural.html (last visited June 21, 2017).

[21] Iowa Admin. Code 567-61.11(455B).

[22] Iowa Admin. Code 567-61.12(455B).

[23] Id.

[24] Iowa Admin. Code 567-60.2(455B).

[25] There are a variety of requirements that you must satisfy to successfully bring a citizen suit (e.g., sending a notice letter in advance, establishing that the plaintiff has standing to sue, etc.).  Here, our primary topic of interest relates only to the quality of the evidence you will use to support a citizen suit.

[26] Fed. R. Civ. P. 11.

[27] Fed. R. Evid. 901(a).

[28] Fed. R. Evid. 702.

[29] Wyo. Stat. Ann. § 6-3-414(f).

[30] Id. § 6-3-414(g).

[31] At the time of writing, these were Nevada, see Nev. Rev. Stat. Ann. § 493.112(4); North Carolina, see N.C. Gen. Stat. Ann. § 15A-300.1(f); and Vermont, see Vt. Stat. Ann. tit. 20, § 4622(e); see also Appendix 2.

Discussion

Please note that this discussion is not moderated by the Emmett Environmental Law & Policy Clinic.