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Generative Environmental Governance: Part 1
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September 24, 2020
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View, explore, and comment on the interaction diagram: https://miro.com/app/board/o9J_kl7JoVI=/

Written by Shannon Dosemagen and Elizabeth Tyson

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 abundance, 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 generative actions-- 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. Trusts can guard against extraction, place working lands into conservation status for perpetuity and seek to forestall extinction, but generative actions can lead to a proliferation of resources. 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, is 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? 

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

[2] 2013   Wood, Mary Christina. Nature’s Trust: Environmental Law for a New Ecological Age. 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.