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 monitoring that make it so challenging. This Article then connects the scientific challenges of effective monitoring to the dynamics of public agencies to establish why those agencies might fail to conduct effective monitoring. Finally, it proposes possible solutions, with a focus on developing separate monitoring agencies.