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83 U. Colo. L. Rev. 1 (2011-2012)
The Problem of Environmental Monitoring

handle is hein.journals/ucollr83 and id is 3 raw text is: UNIVERSITY OF COLORADO LAW REVIEW Volume 83, Issue 1 2011 THE PROBLEM OF ENVIRONMENTAL MONITORING ERIC BIBER' Environmental law depends on the regular collection of accurate information about the state of the natural environment (ambient monitoring) in order to assess the effectiveness of current regulatory and management policies and to develop new reforms. Despite the central role that ambient monitoring plays in environmental law and policy, the scholarly literature has almost ignored the question of whether and how effective ambient monitoring will take place-even though there is ample evidence that our current ambient monitoring data have extensive gaps and significant flaws. Moreover, the importance of ambient monitoring will only increase in the future with the shift to a new paradigm of adaptive management in which management and regulatory decision-making are kept purposefully flexible for future adjustment. This Article develops the ignored concept of ambient monitoring, explains why public agencies will predominantly have the task of ambient monitoring, and explores the fundamental characteristics of effective Assistant Professor of Law, UC Berkeley School of Law (Boalt Hall), Visiting Assistant Professor of Law, University of Chicago Law School, Fall 2011. Thanks to Brad Karkkainen, John Leshy, Albert Lin, J.B. Ruhl, Robin Kundis Craig, Jonathan Nash, Todd Aagaard, William Buzbee, David Sklansky, Cymie Payne, Katarina Linos, Eric Talley, Suzanne Scotchmer, Gillian Lester, Jodi Short, Wayne Brazil, Robert Bartlett, Michelle Wilde Anderson, Molly van Houweling, Lynn Huntsinger, Louise Fortmann, Justin Brashares, Michael Kang, Lance Gunderson, Kai Lee, Matthew Fladeland, Berry Brosi, David Skelly, Holly Doremus, Dan Farber, Joe Sax, Andrew Guzman, Ty Alper, Alex Camacho, Anne Joseph O'Connell, Melissa Murray, Matthew Stephenson, and Dave Owen and participants in workshops at Emory Law School; Vermont Law School's Colloquium on Environmental Scholarship; UC Berkeley Department of Environmental Science, Policy and Management; UC Berkeley Energy and Resources Group; and UC Berkeley School of Law for helpful comments. I am indebted to Jessica Cheng, Ryan Kelly, Jay Chayoung Kim, Tosh Sagar, and Heather Haney for invaluable research assistance. This paper is dedicated to the memory of Phil Frickey.

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