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79 N.Y.U. L. Rev. 115 (2004)
Environmental Protection in the Information Age

handle is hein.journals/nylr79 and id is 129 raw text is: ARTICLES ENVIRONMENTAL PROTECTION IN THE INFORMATION AGE DANIEL C. ESTy* Information gaps and uncertainties lie at the heart of many persistent pollution and natural resource management problems. This article develops a taxonomy of these gaps and argues that the emerging technologies of the Information Age will create new gap-filling options and thus expand the range of environmental protection strategies. Remote sensing technologies, modern telecommunications systems, the Internet, and computers all promise to make it much easier to identify harms, track pollution flows and resource consumption, and measure the resulting impacts. These developments will make possible a new structure of institutional responses to environmental problems including a more robust market in environmental prop- erty rights, expanded use of economic incentives and market-based regulatory strat- egies, improved command-and-control regulation, and redefined social norms of environmental stewardship. Likewise, the degree to which policies are designed to promote information generation will determine whether and how quickly new insti- tutional approaches emerge. While some potential downsides to Information Age environmental protection remain, the promise of a more refined, individually tai- lored, and precise approach to pollution control and natural resource management looks to be significant. INTRODUCTION ................................................. 117 I. DEFINING THE ROLE OF INFORMATION IN THE ENVIRONMENTAL REALM ............................... 121 A. Information Issues in the Environmental L iterature ........................................... 124 B. A Deeper Theory of Information ................... 130 1. The Shadow of the Property Versus Liability Rules D ebate .................................... 130 2. Beneath the Cathedral ........................... 131 II. INFORMATION GAP FILLING ............................ 140 A. Gap Filling and Institutional Design ................ 141 * Copyright © 2004 by Daniel C. Esty. Professor of Environmental Law and Policy, Yale School of Forestry and Environmental Studies and Yale Law School; former Deputy Chief of Staff and Deputy Assistant Administrator for Policy at the U.S. Environmental Protection Agency. Thanks to Farrin Anello, Mark Barnett, Noah Chesnin, Bessie Dewar, Katy Fischer, Brian Fletcher, Phil Fortino, Diane Haar, Gretchen Hoff, Dean Kawamoto, Julia Peck, and Meryl Raymar for research assistance. Thanks to Bishop Grewell, David Victor, Nicole Vickey, Thiru Vignarajah, David Roe, Dennis Hirsch, and Rob Klee, as well as the participants in the Yale Law School faculty seminar, the Yale Environment School faculty seminar, and INSEAD's environmental seminar for comments on prior drafts. Spe- cial thanks to Marge Camera. 115 Imaged with Permission of N.Y.U. Law Review

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