Harnessing the power of information through community monitoring: Insights from social science

Texas Law Review

Volumn 86, Issue 7, 2008, Pages 1493-1526

  Overdevest, Christine ^a   Mayer, Brian ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 50049135647     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (178)

1. EPA, NATIONAL-SCALE AIR TOXICS ASSESSMENT (1999), http://www.epa.gov/ttn/atw/nata 1999/natafinalfact. html (last updated Nov. 6, 2007).
2. See Dara O'Rourke & Gregg P. Macey, Community Environmental Policing: Assessing New Strategies of Public Participation in Environmental Regulation, 22 J. POL'Y ANALYSIS & MGMT. 383, 384 (2003) (discussing the limitations of current air-quality-monitoring systems).
3. For example, in Regions VI, IX, and X, as part of its community-grants program, the EPA has funded and approved quality-assurance plans for community bucket brigades. See O'Rourke & Macey, supra note 2, at 402 (noting that EPA Region IX has supported bucket brigades through grant money and hopes to begin reliability studies comparing the buckets with approved monitoring techniques); Louisiana Bucket Brigade: History, http:// labucketbrigade.live.radicaldesigns.org/ article.php?list=type&type=137 (detailing the history of the Louisiana Bucket Brigade movement and noting that EPA Region VI has given grants to community groups to be used for bucket monitoring); see also Letter from Anita Frankel, Dir., Office of Air Quality, EPA Region X, to Gregory Green, Adm'r, Air Quality Div., Or. Dep't of Envtl. Quality (June 19, 1997) (on file with the Texas Law Review) (approving and funding the expansion of a work plan to include community sampling and education, including the provision of ten bucket samplers to the Oregon Clearinghouse for Pollution Reduction). The monitoring data is considered a general qualitative indicator of hazardous air quality and is not approved for regulatory action or to meet legal standards. See JEFF HOBSON, CONTRA COSTA HEALTH SERVS. & SCHUYLER FISHMAN, CMTYS. FOR A BETTER ENV'T, QUALITY ASSURANCE PROGRAM PLAN FOR THE "BUCKET BRIGADE" COMMUNITY AIR SAMPLING PILOT PROJECT 3-4 (1998) [hereinafter PROGRAM PLAN], available at http://www.gcmonitor.org/downloads/QAQCPLAN.PDF (noting that the data generated would be used for public-information purposes only and not for any regulatory, medical, or legal uses); O'Rourke & Macey, supra note 2, at 402-03 (noting that federal and state agencies do not believe that the buckets can be used as a direct enforcement mechanism because of problems meeting chain-of-custody requirements, failure to use approved sampling methods, use of equipment that has not been approved by state or federal agencies, and uncertainties in result interpretation). In many other cases, bucket brigades operate without the support of the regulatory community. See, e.g., Michelle Nijhuis, Passing the Bucket, GRIST, July 23, 2003, http://www.grist.org/news/maindish/2003/07/23/ the/ (discussing a bucket-brigade program in California that was started through a private grant).
4. Joseph E. Stiglitz, Information and the Change in the Paradigm in Economics, 92 AM. ECON. REV. 460, 469-70 (2002).
5. See, e.g., George J. Stigler, The Economics of Information, 69 J. POL. ECON. 213, 215-16 (1961) (analyzing the efficiency of search costs for buyers and sellers).
6. See, e.g., Stiglitz, supra note 4, at 478 (noting that market failures are pervasive as a result of information asymmetries).
7. JOSEPH E. STIGLITZ, MAKING GLOBALIZATION WORK, at xiv (2006). See generally Bruce C. Greenwald & Joseph E. Stiglitz, Externalities in Economies with Imperfect Information and Incomplete Markets, 101 Q.J. ECON. 229 (1986) (analyzing government interventions that can correct market inefficiencies due to information asymmetries); Joseph E. Stiglitz, Nobel Prize Lecture: Information and the Change in the Paradigm in Economics (Dec. 8, 2001), available at http://nobelprize.org/nobel_prizes/economics/laureates/ 2001/stiglitz-lecture.pdf (summarizing Stiglitz's work resulting in the conclusion that government intervention is required to maintain efficient market equilibrium).
8. See JENS BECKERT, BEYOND THE MARKET: THE SOCIAL FOUNDATIONS OF ECONOMIC SOCIOLOGY 2 (Barbara Harshaw trans., Princeton Univ. Press 2002) (1997) ("[O]ften...no equilibria exist.... This results in market failure. But market failure calls into question the central link of economic theory between rational individual action, unlimited markets, and optimal distribution of economic goods."); Jens Beckert, What is Sociological About Economic Sociology? Uncertainty and the Embeddedness of Economic Action, 25 THEORY & SOC'Y 803, 804 (1996) (criticizing the assumption of economic theory that "economic actors can, even in highly contingent situations, deduce their actions from a clear preference ranking and thereby maximize their utility"); Stiglitz, supra note 4, at 460 (arguing that information economics has undermined notions of market reliability in the absence of government intervention).
9. See Michael Spence, Job Market Signaling, 87 Q.J. ECON. 355, 356 (1973) ("If the incentives for veracity in reporting anything by means of a conventional signaling code are weak, then one must look for other means by which information transfers take place.").
10. See Ross L. Watts & Jerold L. Zimmerman, Agency Problems, Auditing, and the Theory of the Firm: Some Evidence, 26 J.L. & ECON. 613, 613-14 (1983) (describing the importance of independent audits to monitoring firms' managers).
11. See Paul M. Healy & Krishna G. Palepu, Information Asymmetry, Corporate Disclosure, and the Capital Markets: A Review of the Empirical Disclosure Literature, 31 J. ACCT. & ECON. 405, 415 (2001) ("Auditors provide investors with independent assurance that the firm's financial statements conform to GAAP [Generally Accepted Accounting Principles]. The fact that stock prices react to earnings announcements suggests that overall investors regard accounting information as credible." (citation omitted)).
12. See infra Part III.
13. MARGARET E. KECK & KATHYRN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS 16 (1998).
14. Id. at 14.
15. See id. at 17 (noting as an example of information politics the strategic use of public demonstrations and appeals to the United Nations and foreign governments by human-rights activists in Buenos Aires to ensure that the Argentine government complied with public statements, existing legislation, and international standards).
16. Id. at 27.
17. See id. at 27-28 (comparing examples of short, effective causal stories with examples of long, less effective causal stories).
18. See id. at 27 ("Environmental campaigns that have had the greatest transnational effect have stressed the connection between protecting environments and protecting the often vulnerable people who live in them.").
19. Id. at 29.
20. See, e.g., Archon Fung & Dara O'Rourke, Reinventing Environmental Regulation from the Grassroots Up: Explaining and Expanding the Success of the Toxics Release Inventory, 25 ENVTL. MGMT. 115, 115 (2000) (advocating an alternative form of environmental regulation in which "the major role of public agencies is not to set and enforce standards, but to establish an information-rich context for private citizens, interest groups, and firms to solve environmental problems"); Bradley C. Karkkainen, Information as Environmental Regulation: TRI and Performance Benchmarking, Precursor to a New Paradigm?, 89 GEO. L.J. 257, 260-61 (2001) (describing the EPA's Toxics Release Inventory (TRI) as "a watershed, pioneering the systematic use of performance monitoring and benchmarking as regulatory tools.... TRI establishes a broadly accessible, objective, open-ended, cross-media metric of facility-level environmental performance that is not tied to any particular regulatory standard.... TRI data are reported in standard units." (footnote omitted)); Shelley H. Metzenbaum, Measurement that Matters: Cleaning up the Charles River, in ENVIRONMENTAL GOVERNANCE: A REPORT ON THE NEXT GENERATION OF ENVIRONMENTAL POLICY 58, 58-117 (Donald F. Kettl ed., 2002) (using the cleaning up of the Charles River as an example of how effective outcome-focused environmental-performance goals can be in improving environmental quality).
21. Shelley H. Metzenbaum, Information, Environmental Performance, and Environmental Management Systems, in REGULATING FROM THE INSIDE: CAN ENVIRONMENTAL MANAGEMENT SYSTEMS ACHIEVE POLICY GOALS? 146, 173-74 (Cary Coglianese & Jennifer Nash eds., 2001) ("The U.S. Congress, EPA, and the states should move rapidly to experiment with and eventually expand requirements to report standardized environmental performance measures.... Packaging and disseminating information remains another weak link in the environmental-management information infrastructure sorely in need of both public and private attention."); Metzenbaum, supra note 20, at 105 (advocating "an EPA-wide performance management system, where information about environmental goals and environmental progress is broadly known, regularly reviewed, and becomes the basis for strategy development, tactics formulation, and resource allocation").
22. See generally Fung & O'Rourke, supra note 20.
23. See EPA, Toxics Release Inventory (TRI) Program: Get TRI Data, http://www.epa.gov/tri/ tridata/index.htm (providing a publicly searchable database as well as an archive of public data releases).
24. Pub. L. No. 99-499, §§ 301-305, 311-313, 321-330, 100 Stat. 1729 (codified as amended at 42 U.S.C. §§ 11001-11005, 11021-11023, 11041-11050 (2000)).
25. See Fung & O'Rourke, supra note 20, at 116.
26. Research on the effectiveness of TRI information disclosure is suggestive rather than definitive. See Mark Stephan, Environmental Information Disclosure Programs: They Work, but Why?, 83 SOC. SCI. Q. 190, 197 (2002) ("There have been case studies that have laid out credible arguments for the significant influence of the TRI in specific cases." (footnote omitted)). Some mechanisms used to explain the roughly 45% reductions in emissions reported since the launch of the TRI include a stock market effect. Khanna et al. show that firms with large releases suffer significant stock market declines upon release of the data. See Madhu Khanna, Wilma Rose H. Quimio & Dora Bojilova, Toxics Release Information: A Policy Tool for Environmental Protection, 36 J. ENVTL. ECON. & MGMT. 243, 245 (1998) (demonstrating that the "provision of environmental information about firms in the chemical industry causes them to incur negative average stock market returns during the one-day period following the disclosure of the TRI"). Konar and Cohen show that the firms with the largest stock market declines in turn reduce emissions. See Shameek Konar & Mark A. Cohen, Information as Regulation: The Effect of Community Right to Know Laws on Toxic Emissions, 32 J. ENVTL. ECON. & MGMT. 109, 120 (1997) (finding that the forty firms who received the most significant negative stock-price reactions following the disclosure of the TRI significantly lowered their emissions). Hamilton has shown an association between high releases and media coverage, finding that the higher the pollution figures in TRI reports, the more likely print journalists are to write about releases. James T. Hamilton, Pollution as News: Media and Stock Market Reactions to the Toxics Release Inventory Data, 28 J. ENVTL. ECON. & MGMT. 98, 104-08 (1995). The literature casting doubt on the efficacy of the TRI typically raises the prospects of underreporting and ghost reductions. Koehler and Spengler, as well as Natan and Miller, have found underreporting. See generally Dinah A. Koehler & John D. Spengler, The Toxic Release Inventory: Fact or Fiction? A Case Study of the Primary Aluminum Industry, 85 J. ENVTL. MGMT. 296, 297 (2007) (finding evidence of underreporting to the TRI by aluminum facilities); Thomas E. Natan, Jr. & Catherine G. Miller, Are Toxic Release Inventory Reductions Real?, 32 ENVTL. SCI. & TECH. 368A, 373A (1998) (finding little innovative source reduction from 1991 to 1994 because of the widespread reporting of "paper changes," such as changes in estimation methods rather than actual reduction projects). The policy recommendations in each case are to increase the regulatory stringency of the TRI by requiring auditing or monitoring of reports. Citizen groups could play a role in this regard. See Margaret M. Jobe, The Power of Information: The Example of the U.S. Toxics Release Inventory, 26 J. GOV'T INFO. 287, 287 (1999) (describing how citizen access to information on toxic emissions creates market-based incentives to reduce pollutant emissions); Susan L. Santos et al., Industry Response to SARA Title III: Pollution Prevention, Risk Reduction and Risk Communication, 16 RISK ANALYSIS 61-64 (1996) (describing the causes and effects of increased communication with the public).
27. Fung & O'Rourke, supra note 20, at 120.
28. Id.
29. Id. at 122.
30. Id.
31. Id.
32. Id. at 120-22; see supra note 21 and accompanying text.
33. See, e.g., 132 CONG. REC. H9575 (daily ed. Oct. 8, 1986) (statement of Rep. Snyder) (commenting that Congress may have created a program so complex "that it collapses from its own weight").
34. Three primary changes were made: (1) reducing reporting frequency from annual to biannual; (2) reducing reporting requirements on persistent bioaccumulative and toxic substances below 500 lbs.; and (3) shifting the detailed reporting threshold of nonpersistent bioaccumulative and toxic substances from 500 to 5,000 lbs. Toxics Release Inventory Burden Reduction Final Rule, 71 Fed. Reg. 76,932, 76,944 (Dec. 22, 2006) (amending several reporting provisions codified at 40 C.F.R § 372).
35. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-07-464T, EPA ACTIONS COULD REDUCE THE AVAILABILITY OF ENVIRONMENTAL INFORMATION TO THE PUBLIC 4 (2007) (reprinting the Senate testimony of John B. Stephenson, Director, Natural Resources and Environment) (estimating that 3,565 facilities would no longer have to report quantitative information about their chemical use to the TRI).
36. See DAVID VOGEL, THE MARKET FOR VIRTUE: THE POTENTIAL AND LIMITS OF CORPORATE SOCIAL RESPONSIBILITY 3 (2005) (defining "civil regulation" as the idea that "an organization's survival depends on how it responds to the demands and expectations of different stakeholders (e.g., consumers, investors, NGOs, media and local communities"). See generally Gary Lynch-Wood, The Market for Virtue: The Potential and Limits of Corporate Social Responsibility, 19 J. ENVTL. LAW (2007) (book review).
37. Graínne de Búrca & Joanne Scott, Introduction to LAW AND NEW GOVERNANCE IN THE EU AND THE US 1, 2 (Graínne de Búrca & Joanne Scott eds., 2006).
38. See NEIL GUNNINGHAM ET AL., SHADES OF GREEN: BUSINESS, REGULATION, AND ENVIRONMENT 2, 1-3 (2003) (examining how "corporations [can] be motivated to go beyond compliance with existing environmental regulations" and the extent to which "better corporate environmental performance [has] stemmed...from the degree to which environmentally concerned communities and customers become better organized and more demanding"); NEIL GUNNINGHAM & PETER GRABOSKY, SMART REGULATION: DESIGNING ENVIRONMENTAL POLICY 3-5 (1998) (using the term "environmental regulation" "to include not just conventional forms of direct... regulation - the staple diet of many politicians - but also to include much more flexible, imaginative, and innovative forms of social control which seek to harness not just governments but also business and third parties").
39. GUNNINGHAM & GRABOSKY, supra note 38, at 4-5, 12.
40. Id. at 262.
41. See Shakeb Afsah, Allen Blackman & Damayanti Ratunanda, How Do Public Disclosure Pollution Control Programs Work? Evidence from Indonesia 2 (Res. for the Future, Discussion Paper 00-44, 2000), available at http://www.rff.org/Documents/RFF-DP-00-44.pdf (listing Tietenberg's seven channels through which public disclosure of information can affect the behavior of polluting entities); see also Tom Tietenberg, Disclosure Strategies for Pollution Control, 11 ENVTL. & RESOURCES ECON. 587, 587-93 (1998) (discussing the effectiveness of regulatory strategies involving public and private attempts to increase the availability of information on pollution).
42. See Beth Savan, Alexis J. Morgan & Christopher Gore, Volunteer Environmental Monitoring and the Role of Universities: The Case of Citizens ' Environmental Watch, 31 ENVTL. MGMT. 561, 563 (2003) (describing collaboration between a volunteer-monitoring organization and the University of Toronto).
43. See Paul Teske & Mark Schneider, The Bureaucratic Entrepreneur: The Case of City Managers, 54 PUB. ADMIN. REV. 331, 336 (1994) (observing the influence of citizens on the actions of entrepreneurial city managers).
44. See Allan Mazur, Global Environmental Change in the News: 1987-90 Versus 1992-96, 13 INT'L SOC. 457, 469 (1998) (identifying factors that determine whether environmental issues are taken up by the media, such as their "connection to other prominent issues" or "human interest angle[s]").
45. See Tietenberg, supra note 41, at 591-92 (discussing the various channels through which public disclosure can put pressure on polluters); Afsah, Blackman & Ratunanda, supra note 41, at 1 (noting the effect of public disclosure on pollution abatement).
46. See GUNNINGHAM ET AL., supra note 38, at 136 ("The regulatory, economic, and social licenses are monitored and enforced by a variety of stakeholders...."); GUNNINGHAM & GRABOSKY, supra note 38, at 345-55 (discussing the influence of financial institutions, NGOs, and other interest groups in the context of agriculture and the environment).
47. Christine Overdevest, Cailin Huyck Orr & Kristine Stepenuck, Volunteer Stream Monitoring and Local Participation in Natural Resource Issues, 11 HUM. ECOLOGY REV. 177, 182 (2004).
48. Id.
49. Id. at 183.
50. See id. at 178 (noting that little research has been done on the role community monitoring plays in building community environmental and civic capacity).
51. See supra notes 41-45 and accompanying text.
52. See Peter Grabosky, Using Non-governmental Resources to Foster Regulatory Compliance, 8 GOVERNANCE 527, 543 (1995) (arguing that greater regulatory compliance can be achieved by suing third parties).
53. Sean Cooney, Making Chinese Law Work: The Prospects for Regulatory Innovation in the People's Republic of China, 30 FORDHAM INT'L L.J. 1050, 1082 (2007) (arguing that the "complexity of social relations and the scarce resources available to regulatory agencies" make the goals of a command-and-control method of regulation frequently unachievable).
54. See IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE 3-5 (1992); GUNNINGHAM & GRABOSKY, supra note 38, at 4; CHRISTINE PARKER, THE OPEN CORPORATION: EFFECTIVE SELF-REGULATION AND DEMOCRACY 245-47 (2002); Grabosky, supra note 52, at 543-46 (all discussing meta-regulation).
55. Cooney, supra note 53, at 1083.
56. GUNNINGHAM & GRABOSKY, supra note 38, at 10; PARKER, supra note 54, at 247.
57. See Robert V. Percival, Environmental Legislation and the Problem of Collective Action, 9 DUKE ENVTL. L. & POL'Y F. 9, 24 (1998) ("The initial generation of [environmental procedural] innovations - citizen suit provisions, rights of access to information, attorney-fee shifting provisions, expanded rights to judicial review - were designed to give previously underrepresented interests more voice in the policymaking process.").
58. See generally JOHN GAVENTA, POWER AND POWERLESSNESS: QUIESCENCE AND REBELLION IN AN APPALACHIAN VALLEY 3-13 (1980) (discussing theories about why certain interests are prevented from being mobilized in a social relationship involving domination); MANCUR OLSON JR., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (rev. ed. 1971) (positing that large or latent groups have no tendency to voluntarily act to further their common interests); SAM PELTZMAN, POLITICAL PARTICIPATION AND GOVERNMENT REGULATION (1998) (exploring various questions involving the roles of both broad and narrow interests in exerting political pressure to achieve favorable regulatory outcomes); E.E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA (1960) 34-35 (critiquing the view that pluralist-governance approaches represent the public will: "[T]he flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent. Probably about 90 percent of the people cannot get into the pressure system."); George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. 3, 3 (1971) (arguing that regulation is designed and operated primarily in the interests of industry); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 384-87 (James Q. Wilson ed., 1980) (describing how the mobilization of various interests helped to create different regulatory agencies).
59. See generally Robert D. Putnam, The Strange Disappearance of Civic America, AM. PROSPECT, Winter 1996 (examining the causes of the decline of civic engagement in America).
60. Percival, supra note 57, at 24 (discussing Mancur Olson's argument that diffuse public interests result in political obstacles to collective action).
61. See id. at 27 (arguing that regulatory innovation will be necessary to prevent concentrated industry interests from overpowering diffuse citizen interests).
62. Clean Air Act, 42 U.S.C. §§ 7401-7671q (2000).
63. EPA, Technology Transfer Network Air Toxics Web Site, http://www.epa.gov/ttn/atw/ nata1999/natafinalfact.html (last updated Mar. 28, 2008).
64. Id.
65. See Robert D. Bullard, Introduction to THE QUEST FOR ENVIRONMENTAL JUSTICE: HUMAN RIGHTS AND THE POLITICS OF POLLUTION 1, 3 (Robert D. Bullard ed., 2005) (recounting the George H.W. Bush Administration's 1992 recognition that environmental protection had not worked for "communities in which people of color and low-income groups live"); J. TIMMONS ROBERTS & MELISSA M. TOFFOLON-WEISS, CHRONICLES FROM THE ENVIRONMENTAL JUSTICE FRONTLINE 10-11 (2001) (contending that "racism...is driving much environmental injustice in America"). See generally STEVE LERNER, DIAMOND: A STRUGGLE FOR E NVIRONMENTAL JUSTICE IN LOUISIANA'S CHEMICAL CORRIDOR (2005) (detailing the community effects of toxic emissions from two Shell plants in Louisiana's "Chemical Alley").
66. See supra note 1 and accompanying text.
67. See OFFICE OF ENVTL. INFO., EPA, REPORT 260/K-01-001, THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT: SECTION 313 RELEASE AND OTHER WASTE MANAGEMENT REPORTING REQUIREMENTS 20-43 (2001) [hereinafter EPA REPORTING REQUIREMENTS] (listing the potentially hazardous substances defined under § 313).
68. Id. at 10.
69. Id. The EPA requires regions to complete at least four on-site inspections and twenty overall inspections per year, and it encourages regions to target facilities that meet the reporting criteria but fail to report. OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, EPA, NATIONAL PROGRAM MANAGER GUIDANCE 34 (2008) [hereinafter PROGRAM MANAGER GUIDANCE], available at www.epa.gov/compliance/resources/ policies/data/planning/npmguidance 2008.pdf.
70. See EPA REPORTING REQUIREMENTS, supra note 67, at 13 (requiring facilities producing or using the EPCRA § 313 chemicals to report all emissions of the pollutants into the environment).
71. See PROGRAM MANAGER GUIDANCE, supra note 69, at 12 (explaining that the EPA will seek criminal sanctions when violations are "knowing and willful").
72. See infra section III(D)(2).
73. Pub. L. No. 99-499, §§ 301-305, 311-313, 321-330, 100 Stat. 1729 (codified as amended at 42 U.S.C. §§ 11001-11005, 11021-11023, 11041-11050 (2000)).
74. EPA, Toxics Release Inventory Program, What is the Toxics Release Inventory (TRI) Program, http://www.epa.gov/tri/triprogram/whatis.htm (last updated Mar. 31, 2008).
75. AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, U.S. DEP'T OF HEALTH AND HUMAN SERVS., HAZARDOUS SUBSTANCES EMERGENCY EVENTS SURVEILLANCE ANNUAL REPORT 4, 9, 14 (2002), available at http://www.atsdr.cdc.gov/ HS/HSEES/annual2002.pdf.
76. Id. at 15.
77. Id. at 3.
78. Amy Wold, Results Released of Chemical Plant Accidents Probe, ADVOCATE (Baton Rouge, La.), Mar. 31, 2004, at 17A.
79. Id.
80. Id.
81. Kevin Duffy, Fayette Urges Plant to be Shut: Board Says South Fulton Odor a Threat to Neighbors, ATLANTA J.-CONST., Aug. 31, 2006, at JM14; Julie Turkewitz & Kevin Duffy, Noxious Odor and Fear Cloak Wary Residents, ATLANTA J.-CONST., July 28, 2006, at E1.
82. Duffy, supra note 81, at JM14.
83. Memorandum from Stuart Brown, Dir., Div. of Pub. Health, Ga. Dep't of Human Res. & Jim Ussery, Assistant Dir., Envtl. Prot. Div., Ga. Dep't of Human Res., to Stakeholders (Aug. 18, 2006), available at http://health.state.ga.us/pdfs/hazards/Update%20Memo%208-18-06_1.pdf.
84. See Turkewitz & Duffy, supra note 81, at E1 (noting an assortment of medical symptoms complained of by residents and quoting a local pastor's suspicion that "more of the chemical got out than the company is letting on").
85. See generally Volunteer Monitoring: Past, Present and Future, VOLUNTEER MONITOR (San Francisco, Cal.), Spring 1994, available at http://www.epa.gov/owow/monitoring/volunteer/ newsletter/volmon06no1.pdf.
86. See generally id. (discussing a variety of issues pertaining to volunteer environmental-monitoring groups throughout the nation and recounting their history).
87. Overdevest, Orr & Stepenuck, supra note 47, at 177.
88. See Savan, Morgan & Gore, supra note 42, at 562 (noting that volunteer monitoring data is primarily used for educational purposes).
89. Overdevest, Orr & Stepenuck, supra note 47, at 177.
90. O'Rourke & Macey, supra note 2, at 400, 403.
91. Metzenbaum, supra note 20, at 82-83 (describing how public attention motivates agency staff as well as "those outside the agency").
92. Bucket air samplers first created to assist litigants in a civil lawsuit have been accepted by several EPA regions (but to a public-information standard, not a legal or regulatory-action standard). See, e.g., PROGRAM PLAN, supra note 3, at 7-8 (describing the involvement of EPA Region IX's air toxics laboratory).
93. Nijhuis, supra note 3.
94. Id.
95. EPA, Region IX Featured Stories: Tosco-Rodeo Oil Refinery, http://www.epa.gov/region 09/features/tosco/ (last updated Mar. 5, 2007).
96. Nijhuis, supra note 3.
97. Id.
98. Id.
99. Erin Hallissy, $571,000 of Unocal Settlement to Be Used for Warning System, S.F. CHRON., July 22, 1995, at A15.
100. O'Rourke & Macey, supra note 2, at 388.
101. Nijhuis, supra note 3.
102. O'Rourke & Macey, supra note 2, at 389; Nijhuis, supra note 3.
103. Eloise Dortch, Residents Will Do Air Testing the US Way, W. AUSTRALIAN, Jan. 28, 2006, at 42.
104. O'Rourke & Macey, supra note 2, at 389.
105. See GUNNINGHAM & GRABOSKY, supra note 38, at 99 (noting that NGO activity influences industry behavior even when the industry has government support).
106. See GUNNINGHAM ET. AL., supra note 39, at 34-39 (articulating the notion of a "license to operate," which is an interactive model of corporate environmental performance); Grabosky, supra note 52, at 530-31 ("[G]overnments have begun to rely increasingly on the independent certification of regulatory compliance by third parties.").
107. See id. at 545 (explaining the benefits to government of using third parties to fulfill public purposes).
108. See infra section III(D)(4).
109. Mark Bovens, Analysing and Assessing Accountability: A Conceptual Framework, 13 EUR. L.J. 447, 450 (2007).
110. See infra Part IV.
111. Nijhuis, supra note 3; see also groundwork, In the News, http://www.groundwork.org.za/ (providing information about groundwork's efforts).
112. Nijhuis, supra note 3.
113. Eliza Strickland, To Clean the Air, Communities Grab a Bucket, CHRISTIAN SCI. MONITOR, Apr. 1, 2004, at 14, available at http://www.csmonitor.com/2004/0401/p14s01-lihc.html.
114. Id.
115. John M. Biers, Bad Air Day, TIMES-PICAYUNE (New Orleans, La.), Sept. 17, 2000, Money, at 1.
116. Strickland, supra note 113, at 14.
117. Mary Swerczek, Norco Residents Rejoice in Buyout, TIMES-PICAYUNE (New Orleans, La.), July 6, 2002, Metro, at 1.
118. Nijhuis, supra note 3. Christine Knapp works with air samplers in south Philadelphia as an organizer for Clean Water Action, an NGO. Id.
119. For a sample outline of a bucket-brigade training workshop, see Yonge Nawe Environmental Action Group, Community-Based Air Quality Monitoring Workshop, http://www. yongenawe.com/03resources/workshopmaterial/ airquality130202.html.
120. Louisiana Bucket Brigade: Norco: Profile, http://labucketbrigade.live. radicaldesigns.org/ article.php?list=type&type=23.
121. See, e.g., Press Release, Louisiana Bucket Brigade, St. Bernard Community Members to Take Soil Samples (Mar. 1, 2006), available at http://www.labucketbrigade.org/communities/ chalmette/press/20060301.shtml.
122. See, e.g., Jan Adam, Testing Reinforces Air Quality Findings, PITTSBURGH POST-GAZETTE, Apr. 9, 2003, at N-8 (describing a meeting in which a local bucket brigade reported its air-sampling activities); Tom Avril, Local Activists Sniff Out Pollution, PHILA. INQUIRER, Feb. 24, 2003, at F1 (reporting on the work of a Philadelphia bucket brigade); Cara Buckley, Air of Suspicion, MIAMI HERALD, May 19, 2006, at 1A (reporting on a citizens' group fighting pollution from a local plant); Cara Buckley, Air of Suspicion, MIAMI HERALD, May 20, 2006, at 1A (continuing her earlier report on a citizens' group fighting pollution from a local plant); Dina Cappiello, Pollution Monitors Donated to County and City Agencies, HOUS. CHRON., Feb. 24, 2005, at B4 (reporting on donations by area activists that more than doubled the number of air pollution monitors available to city and county programs); Christopher Heredia, Lessening the Scares in the Air: Contra Costans Begin Noting Chemical Discharges, S.F. CHRON., Apr. 4, 1998, at A17 (noting efforts by county officials to train volunteer sniffers and samplers to report air pollution to augment testing already in place); Charisse Jones, Activists Use Research To Win Pollution Battles, USA TODAY, Dec. 6, 2006, at 13A; Sara Miller Liana, In Mexico, a Clean-Air Bucket Brigade, CHRISTIAN SCI. MONITOR, Mar. 4, 2008, World, at 4 (noting the launch of Mexico's first bucket brigade); Nijhuis, supra note 3 (discussing a bucket-brigade program in California that was started through a private grant); Toxic Soil in New Orleans, MOTHERJONES.COM, Apr. 4, 2006, http://www. motherjones.com/mojoblog/archives/2006/04/toxic_ soil_in_n.html (noting the continuing work of the Louisiana Bucket Brigade post-Katrina).
123. Emma D. Sapong, Two Plants Accused of Air Pollution, BUFFALO NEWS, Feb. 17, 2005, at B3.
124. See id. (noting that while benzene levels were within New York's limits, they would have exceeded the more stringent standards of these three states). Cf. CLEAN WATER ACTION, NEVILLE ISLAND BUCKET BRIGADE: 2002 REPORT 4 (2002), http://www.cleanwaterfund.org/pdfs/nev_bb02. pdf (describing the detection in western Pennsylvania of several air toxics which, while not monitored locally, would have been subject to regulation in Texas, Louisiana, or North Carolina).
125. Sapong, supra note 123.
126. Press Release, Cheektowaga Citizens' Coal., Inc., Cheektowaga Citizens' Coalition Fights Back (Mar. 14, 2004), available at http://www. bucketbrigade.net/article.php?id=197.
127. Id.
128. Id.
129. Id.
130. Press Release, Cmty. Labor Refinery Tracking Comm., Philadelphia Area Residents File Pollution Lawsuit Against Sunoco Refinery (Apr. 12, 2005), available at http://www.environmental integrity.org/pub311.cfm.
131. Harold Brubaker, Sunoco Settles Pollution Suit, PHILA. INQUIRER, Nov. 10, 2005, at C3. The settlement followed a June 2005 consent decree between Sunoco and federal, state, and local environmental authorities, which required Sunoco to spend $285 million on pollution-control equipment at four of five refineries over the next eight years. Id.
132. These expenses can be quite high, as bucket brigades must maintain quality assurance along the chain of custody, pay $500 per sample for professional analysis, and wait many days to get results of grab samples. Communities for a Better Environment, Handbook Case Study, http:// www.chemicalbodyburden.org/hb_cs_cbe.htm. Real-time monitors create immediate data, with no analysis costs, and do not require any chain of custody. Id. For these reasons, these monitors increase bucket brigades' capacity to monitor substantially. Id. A similar settlement in Texas, where the local bucket brigade Community in Power and Development Association (CIDA) has been operating since 2000, also got firms to buy real-time monitors so that samples could be taken regularly in real time without the cost in time and expense of analyses by an EPA-certified laboratory. See Press Release, Global Cmty. Monitor, Agreement Reached with Shell by Environmental Justice Community in Port Arthur, Texas (2006), http://www.gcmonitor.org/article. php?id=236. Activists in the bucket-brigade community seem to be pursuing these real-time monitors to increase their pragmatic capacity to call for accountability.
133. Christopher Curry, Soot Sleuths: Volunteers Monitor Industrial Plant Emissions, OCALA STAR-BANNER, Dec. 31, 2005, available at http://www.ocala.com/apps/pbcs.dll/article?AID= 2005212310364.
134. See TULANE ENVTL. LAW CLINIC, TULANE UNIVERSITY, ANNUAL REPORT: 2005-2006, at 9-11 (2006), available at http://www.tulane.edu/∼telc/pdfs/ 05_06_annual.pdf (detailing the Tulane University Environmental Law Clinic's involvement in the lawsuit).
135. Cmty. Labor Refinery Tracking Comm., supra note 130.
136. See Press Release, Anne Rolfes, La. Bucket Brigade, Louisiana Bucket Brigade and Hurricane Katrina (Sept. 2, 2005), available at http://www.labucketbrigade.org/press/pr_090205. shtml (noting that before Katrina the Bucket Brigade focused its work in St. Bernard Parish on supporting the St. Bernard Citizens for Environmental Quality).
137. John C. Kuehner, Capturing Flats' Bad Air in a Bucket: Amateur Freelance Patrols Aim to Clean Up Cuyahoga Valley, CLEVELAND PLAIN DEALER, Jan. 23, 2006, at B1.
138. See EARTHJUSTICE ET AL., SMOKESTACK ROLLBACK: HOW THE BUSH ADMINISTRATION'S CLEAN AIR ACT PROPOSALS WILL INCREASE TOXIC REFINERY POLLUTION AND JEOPARDIZE PUBLIC HEALTH 2 (2002), available at http://www.refineryreform.org/downloads/ Smokestack_Rollback.pdf (noting that the Lone Star Sierra Club has assisted communities in data analysis, provided air-sampling training, and addressed air-pollution hazards through public comments).
139. See Heredia, supra note 122 (reporting that Contra Costa County approved a local bucket brigade program using $50,000 in federal EPA funds).
140. Rose Foundation award information can be found at http://www.rosefdn.org/ grants/awards 1999.html.
141. The Robert Wood Foundation provided a grant of $105,000 to support bucket campaigns, in addition to a $20,000 award to Ms. Rolfes. Press Release, Robert Wood Johnson Found., Robert Wood Johnson Foundation Announces 2007 Community Health Leaders (Oct. 4, 2007), available at http://www.rwjf.org/newsroom/newsreleasesdetail.jsp?productid=22471&typeid= 160.
142. CLEAN WATER ACTION, supra note 124, at 2.
143. Michael May, Port Arthur Blues: A Native Son Returns to Revitalize His Pollution-Plagued Neighborhood, TEX. OBSERVER, Mar. 1, 2002, at 8, available at http://www.texasobserver. org/article.php?aid= 569.
144. See Karen Turni Bazile, State of St. Bernard Soil is Still Murky, TIMES-PICAYUNE (New Orleans, La.), Aug. 13, 2006, Metro, at 1 (describing the support provided to the Louisiana Bucket Brigade by University of Michigan graduate researchers who analyzed soil samples and interviewed residents on soil and air contamination); Liana, supra note 122, at 4 (noting York University's involvement in helping to launch Mexico's first bucket brigade); Mary Swerczek, Toxins Expert to Speak to Norco Residents, TIMES-PICAYUNE (New Orleans, La.), Feb. 16, 2002, Metro, at 1 (reporting on the upcoming visit of a University of Illinois toxicologist before the Louisiana Bucket Brigade).
145. See Manuel Torres, Post-Flood Muck Has Toxins, Group Says, TIMES-PICAYUNE (New Orleans, La.), Oct. 26, 2005, Metro, at 1 (reporting an EPA spokesman's refusal to comment on the Louisiana Bucket Brigade's testing results because of unfamiliarity with the group's methodology and techniques).
146. See Louisiana Bucket Brigade, supra note 3 (detailing the Louisiana Bucket Brigade's efforts in Cancer Alley).
147. See generally CLEAN WATER ACTION, SOUTH AND SOUTHWEST PHILADELPHIA BUCKET BRIGADE REPORT: WHAT'S IN OUR AIR? (2003), available at http://www.cleanwaterfund.org/pdfs/ ourair03.pdf (providing a report on the CLRTC and other organizations' bucket-brigade efforts in south and southwest Philadelphia).
148. See, e.g., PHIL BROWN, TOXIC EXPOSURES: CONTESTED ILLNESSES AND THE ENVIRONMENTAL HEALTH MOVEMENT 13-14 (2007) (pointing out that corporations with extensive scientific resources can deride any consideration of data originating from more sparsely staffed advocacy groups as an assault on progress).
149. Gitte Laasby, Better Air Testing Demanded, POST-TRIB. OF NW. IND., Aug. 3, 2007, at A13.
150. Id.
151. Id.
152. Bovens, supra note 109, at 449.
153. See supra Part II.
154. See supra section III(D)(4).
155. See supra subsection III(D)(3)(a).
156. EPA, QUALITY ASSURANCE POLICY STATEMENT 2 (1979), available at http://epa.gov/ region07/programs/artd/air/nsr/nsrmemos/quality.pdf. In the case of the Region IX bucket brigades, the Regional Quality Assurance office provided extensive quality-assurance support. See O'Rourke & Macey, supra note 2, at 402.
157. QUALITY ASSURANCE POLICY STATEMENT, supra note 156, at 1.
158. Id.
159. See generally Deborah Grossman-Garber et al., Volunteers Educate and Motivate Citizens for Water Quality Protection: The Role of Volunteer Water Quality Monitoring Programs in the Cooperative Extension Service (1997) (unpublished manuscript, on file with the Texas Law Review) (explaining the role that Cooperative Extension Service volunteers play in environmental monitoring).
160. COOP. STATE RESEARCH, EDUC., AND EXTENSION SERV., U.S. DEP'T OF AGRIC., VOLUNTEER WATER QUALITY MONITORING, http://www.usawaterquality.org/volunteer/outreach CSREESFactsheetI.pdf.
161. Steven Chillrud, Greg O'Mullan & Wade McGillis, Op-Ed., Sensor Deprivation, N.Y. TIMES, Jan. 30, 2008, at A23.
162. Id.
163. Id.
164. See Grabosky, supra note 52, at 535 (discussing incentives governments can offer to the private sector to increase regulatory compliance).
165. See supra notes 94-104 and accompanying text.
166. Heredia, supra note 122.
167. Id.
168. Id.
169. Id.
170. See EPA, EPA QA/G-5, GUIDANCE FOR QUALITY ASSURANCE PROJECT PLANS 2 (2002), available at http://www.epa.gov/quality/qs-docs/g5-final.pdf (citing the requirement, based on a 1994 standard, that all projects funded by EPA have approved quality-assurance plans).
171. See PROGRAM PLAN, supra note 3, at 6-8 (describing the assistance to be provided by each entity to the bucket brigades).
172. Field blanks are Tedlar bags filled with nitrogen taken to the field and then sent to the lab for analysis. Id. at 7. These provide a measure of whether contamination is occurring during the handling of the Tedlar bags from the point of sample site to the analytical lab. Id.
173. SCHUYLER FISHMAN, CMTYS. FOR A BETTER ENV'T, QUALITY ASSURANCE REPORT: "BUCKET BRIGADE" COMMUNITY AIR SAMPLING PILOT PROJECT (1998), http://www. bucketbrigade.net/downloads/QAQCRPT1.PDF. These are both common solvents used in the petrochemical industry that acutely and chronically affect the central nervous system. See N.J. DEP'T OF HEALTH & SENIOR SERVS., HAZARDOUS SUBSTANCE FACT SHEET: METHYLENE CHLORIDE 1, 2 (2001) available at http://nj.gov/health/eoh/rtkweb/documents/fs/1255.pdf. They are among the primary air toxics monitored by bucket brigades. See PROGRAM PLAN, supra note 3, at 3 (listing these substances as specific concerns for the project); N.J. DEP'T OF HEALTH & SENIOR SERVS., HAZARDOUS SUBSTANCE FACT SHEET: TOLUENE 1 (2007), available at http://www.nj.gov/ health/eoh/rtkweb/documents/fs/1866.pdf.
174. FISHMAN, supra note 173, at 4.
175. PROGRAM PLAN, supra note 3.
176. Id. at 4.
177. Id.
178. See John Braithwaite, Presentation to the University of California, Berkeley, General Aspects of Law (GALA) Seminar Series: Meta Regulation for Access to Justice (Nov. 13, 2003), available at http://www.law.berkeley.edu/centers/kadish/gala03/Braithwaite%20Kent.pdf (advocating "restorative justice" as "a process where all the stakeholders in an injustice have an opportunity to discuss the consequences of the injustice and what might be done to repair the harm").