Ecology 101 Our second article is by Robert Cutting and Lawrence Cahoon (UNC Wilmington) who have collaborated in creating a course that blends Law and applied Ecology (Environmental Science). While not exactly the television program “CSI,” the course does deal with the intricacies related to investigating and presenting a legal case involving crimes against the environment and the need for investigators to understand ecological principles.
Forensic Environmental Science: Where Laws and Ecological Principles Meet Introduction The field of “forensic science ” has become popular nationwide, in part because of the “CSI” television series. Investigations of environmental crime, however, rarely receive such television attention. Such investigations require the same techniques, skills, and tools as other criminal investigations, but environmental investigators, including regulatory staff, scientists, employees, or volunteers with environmental organizations, and regular citizens, typically acquire these skills, if at all, “on the job.” In our experience, Science majors may understand the ecological principles of environmental crimes, but are often at a disadvantage, since many never take a course in the American political and legal systems, or even public speaking. Since 1997 we have taught a course annually en-
titled “Forensic Environmental Science.” At that time we could find no other in the nation. The course involves: (1) introduction to basic legal concepts and procedures, (2) use of ecological science in the legal system, and (3) the tools to craft a convincing scientific presentation in any forum.
Target audience Our primary focus has been on senior-level undergraduates, and our student population consists primarily of science majors and environmental studies (B.A. or B.S.) students. Because forensics is popular and we have a new Forensics minor at UNC Wilmington, we also get a smattering of Criminology, Sociology, Political Science, and other pre-law students. We have also had a number of graduate students, but have not offered a graduate-level course. Based on a survey of our spring 2005 class, we found that most had not had even a basic political science class in college, and had correspondingly little understanding of how our system of environmental laws and regulations functions. Although about half (13 of 25) knew that the legislative branch writes environmental laws, only 4 of 25 knew that the executive branch writes environmental regulations. Most had limited contact with the legal system as witnesses, plaintiffs, defendants, or victims, and indicated only poor-to-moderate confidence in their abilities as jurors, investigators, or witnesses. Despite the popularity of televised crime shows, only 4 of 25 understood “chain of custody.” The class rated its knowledge of quality assurance/quality control procedures as none to poor. The class rated its ability to recognize an environmental violation as moderate, but none knew the microbiological standard for drinking water. Thus, there were significant gaps in effective knowledge, which we sought to remedy in this course.
Course objectives The course objectives are fairly straightforward, although they involve a mix of disciplines that is somewhat unusual for a traditional university curriculum. A) Appreciation of the legal system: The course
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Departments addresses (1) the organization of American government/politics, (2) the legal system, including organization and procedure as well as fundamental research skills; (3) the administrative process; and (4) an introduction to environmental laws, both common-law (e.g., nuisance and trespass) and statutory law (the Clean Water Act, etc.). B) Understanding the role of ecological science in environmental law, we attempt to demonstrate (1) the use of sound ecological science in the formulation and administration of law and regulations, (2) weaving understandable and accurate ecological science into presentations of all types. C) Specific skill sets: (1) presentation skills, including verbal and written skills; (2) investigative techniques of all types, including web-based search techniques; (3) interview skills; (4) data collection, including photographic, technical instrumentation, and quality assurance/quality control procedures; and (5) documentation.
Course methodology We cover this wide range of topics in a format that emphasizes real case examples, guest speakers from the various disciplines, and interactive learning. Guest speakers help set the tone and provide real-world context, and have included representatives from the legal system, such as prosecutors, investigators, environmental agency representatives, and representatives of the regulated communities and NGOs. The web now offers incredible opportunities for assignments in legal research. Originally, we addressed the legal system and the scientific issues simultaneously, covering science and law topics in the same 3-hour lecture session. However, because many of the students have so little grounding in the legal and political issues, we now focus on the legal system first.
A)
Legal system
The lectures set the framework, based on a good environmental law text as a discrete unit, with an
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exam at the end of the section. We have used Powell (1998), occasionally Valente and Valente (1995), and Salzman and Thompson (2003) is worth considering. We are now using Kubasek and Silverman (2005). Extensive web materials illustrate the basic concepts ‹http://www.uncw.edu/evs/cutting/CLASS488/ bio488coursemat.html›. Assignments emphasize application of legal principles, as many of these students will have to do in a government, corporate, or consulting business: (1) research of state and federal statutes, regulations and cases, (2) environmental reporting and data sources, for example, EPA‘s Envirofacts, and Environmental Defense’s Scorecard, and (3) specific agency processes, for example, the permit application procedure for NPDES permits within a state.
Specific topic areas include those below. 1) Organization of government. Often some state or national election or appointment of a Supreme Court justice provides a focal point to highlight the law-making process from the legislative and executive branches of government. Assignments typically include identifying and communicating with the students’ legislators, and researching legislative and regulatory proposals and history. 2) Organization of the legal system, including a discussion of the differences between and interaction among Anglo-American common law, the constitutions of the United States and the states, the statutes, cases, regulations, and executive orders. 3) Legal process and procedure. Dispute resolution mechanisms, including Civil, Administrative, and Criminal systems, as well as alternative dispute resolution mechanisms are studied. We emphasize preparation as the key to resolution of any case. The discovery process is a focal point since that is where much of the action in law cases occurs, and we discuss concepts of evidence so students can better understand how facts and opinions are classified and utilized within the legal system, especially expert testimony. We emphasize criminal procedure since we think that
if students can prepare a criminal case, they can prepare almost any presentation well. We explore search warrants and investigative search warrants so students learn about “probable cause” and “chain of custody.” Finally, we look at jury instructions, so the students have a grasp of what it is that actually must be proved to the satisfaction of the “twelve good and true,” just as real prosecutors do. (For this exercise, we conducted a survey of states’ attorneys general and compiled a fairly extensive catalog of forms ‹http://www.uncw. edu/evs/cutting/CLASS488/bio488coursemat.html, Jury Instructions›) 4) Agencies and Enforcement Issues: Because much of environmental law is really administrative (agency) law, we look at the origins, composition, and functions of administrative agencies. Topics include policy-making, political oversight, the mechanics of rule-making, technical assistance, environmental education, and enforcement functions. Typically, each student is assigned a state to research and report on the air or water-quality permit processes. (5) Specific environmental laws: The Clean Air Act, Clean Water Act, NEPA, RCRA, CERCLA, and other “alphabet soup” acts are covered. We have compiled original source materials on the UNCW EVS Environmental Law Research Module site ‹http://www.uncwil. edu/evs/module/index.html› for easy reference. We tend to focus on the Clean Water Act, since one author of this paper works mainly with surface water quality, and on RCRA and CERCLA, because so much litigation and inquiry involves hazardous/toxic materials.
B)
Ecology and environmental science
1) Scientific basis for laws and regulations. We review briefly some of the history of scientific engagement with the policy process, starting with Dr. Snow’s investigation of the source of cholera infections in London, and including the controversy about pesticide applications stirred by Rachel Carson’s Silent Spring, and continuing through discussions of mercury, dioxins, and microbiological hazards. The dual concerns of human health and ecosystem health are emphasized. The elements of risk assessment are presented, and the
statistical relationships between measured parameters and impacts are discussed so that students understand where statistical uncertainty enters consideration in terms of detection limits and safety threshold arguments. The distinction between correlation and causation is drawn carefully. The importance of emerging issues is discussed, as these are likely to engage students in their early careers. The application of science in making policy is discussed with the unavoidable uncertainties kept in mind. (See, for example, Oliver Houck, Tales From A Troubled Marriage: Science and Law in Environmental Policy, 302 Sci. 1926 [2003]). We point out that environmental management is a work in progress, with different approaches used by different persons. Management techniques discussed include discharge standards, limits and permits, ambient standards, Best Management Practices, nonpoint source management practices, Total Maximum Daily Loads (TMDL), emissions trading programs, basin-wide management plans, and international treaties, such as the Montreal Protocol. 2) Scientific parameters and methods. A comprehensive discussion of the variables one might measure for purposes of ecosystem or environmental monitoring or directed investigation is beyond the scope of the course, so we describe categories of measurement techniques. These include: (a) immediately sensible properties, such as odors, noise, and visible impacts (which lend themselves to photography), (b) instrumental methods, such as use of DO meters, multiprobes, and specialized field instruments, (c) “wet chemistry” techniques that require sampling and laboratory analysis, including gas chromatography and mass spectrometry, (d) methods for pathogens, including standard microbiological assays and newer molecular techniques, and (e) biological indicators, such as toxicity testing and population and community assessment techniques. Students are assigned to select one such method from the American Public Health Association’s Standard Methods manual and write a description of “what, why, and how,” as if for a jury. We also do a demonstration of each instrument and technique we employ later in the course, and allow
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Departments the students to get some “hands-on” experience with the devices and the data they produce. Knowing what good data look like is critical. 3) Quality assurance and quality control (QA/QC). The preliminary course survey showed that students initially had a poor understanding of the proper strategies and procedures for handling samples (= evidence) and analyzing them to yield trustworthy results and interpretations. One lecture covers the elements of quality assurance, the development of a quality control plan, and both internal and external quality control procedures, since data quality must ultimately be defensible in any academic or applied setting. (Implementation of QA/QC plans and procedures was an element of the subsequent group projects assigned to the class.) 4) Quantitative reasoning. The ability to interpret the meaning of numerical information is critically important in science in general, and of course, in environmental regulation and management, but many students exhibit “math anxiety” that inhibits their performance. Humans transmit information through imagery, words, and numbers, apparently in decreasing order of effectiveness when math anxiety is a factor, so we emphasize the translation of numerical information into interpretive words and imagery, including tables and graphs. 5) Interpreting agency data. Once students understand the parameters involved, they can interpret the compliance and enforcement data supplied to regulatory agencies and available to the public. Students are provided actual Daily Monitoring Reports (DMRs) from local NPDES permit holders and asked to analyze patterns of performance in the data sets, including violations, and to present these in a format easily understandable to a lay audience, i.e., a jury.
C)
General skill sets
Since this is both a theoretical and practical course, we spend considerable time working through the skills necessary to construct a winning case. These inquiries
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also break up the lectures and are usually fun for all involved. 1) Presentations: verbal presentations plus writing and PowerPoint assignments. We consistently hear from graduate schools and employers that students need more experience in verbal and written communications. We offer several opportunities to build skills, such as exercises to investigate an assigned state’s NPDES or air permit program, and to create a four-slide presentation to demonstrate how to secure a permit that gets the student in front of a friendly audience. 2) Research: both legal issues and scientific methods. The legal research component is essential, because once in the field, students will be confronted with the need to research legal issues in each jurisdiction they encounter. There are exercises to find and discuss statutes, regulations, and cases, such as U.S. Supreme Court cases on the environment. At other times, students research statutory language (usually the CWA or RCRA/CERCLA), and sift through the EPA docket to learn of impending rules changes. Similarly, we usually randomly assign research related to states for the same purposes. The utility of starting with the appropriate agency and learning the agency’s view (if possible) is stressed, which can be a short cut to the primary and secondary materials. 3) Investigative and interview techniques. We usually have some fun with interview techniques, discussing everything from the “Good Cop/Bad Cop” approach to the need to secure the hard drives on a subject’s computers. The emphasis is on building good listening skills and using the “open-ended” question so the subject will talk. In one exercise, we have a volunteer (dressed up in a disguise) run into the classroom during a lecture and grab some object we have placed in the room. There is usually a rollicking discussion after each student has recorded his/ her “observations”—and a wide range of opinion on key details! In another, we provide scripted roles for the students, who role-play regulatory personnel, percipient witnesses, and possible polluters. The students then break into small groups and videotape each other
as they harangue and cajole to try to get information from resistant colleagues. We then critique the videos so students learn both interview skills and video skills at once. Frequently, we have guest speakers from regulatory agencies, or investigators from law enforcement, talk about methodology. The students apply these skills during the final exercise when they can talk with real people who are part of the regulated community. 4) GPS, GIS, and map skills. Critical to most investigations is good situational awareness, but our preliminary survey showed that students had minimal knowledge of geographic information techniques. We usually start with exercises that require students to locate aerial, topographic, and satellite images of target locations, through Terraserver, Google Earth, Google Maps, NOAA, and our county GIS section. (OPIS: ‹http://www.csc.noaa.gov/opis/›) Finally, we have several GPS devices available, from hand-held devices to integrated units for laptops and PDAs, and encourage the students to work with each. 5) Use of multimedia. The medium is often the message in forensics. Thus, we emphasize utilizing photography, video, and chart/graph depictions to manage complicated information for easy digestion by the target audience. Students also have “hands-on” experience with digital cameras, digital video, and related software. Use of the photographic equipment is the subject of a lecture segment on basic techniques and considerations (such as lighting, focus, film vs. digital); another exercise is for students to transfer video they have shot into a PowerPoint presentation using Windows Media.
D)
Final project
The course is geared to a final project that counts as 40% of the grade. The objective is to apply the skill sets and to learn to work with all the foibles of a team. The first issue is to locate a suitable site. While sending students off to roam around until they find an environmental problem would be realistic, but it would also entail risks, so we aim for more controlled cir-
cumstances. Classes have analyzed and sampled a “package” wastewater treatment facility for leachate from our county landfill, as well as an experimental “artificial wetland” created by county staff as a future treatment alternative. Recently, the class analyzed Wilmington’s Wastewater Treatment Plant for compliance. The advantages of using a regulated facility are several, including the controlled conditions, the availability of trained staff to conduct an initial tour, and NPDES standards and records to be used as benchmarks. The charge is to conduct a review of the facility as an environmental consultant to the facility itself, and to prepare a presentation to the management of the facility. We must agree to confidentiality in order to have access to the sites, so even if violations are discovered (and they are), the teams act as advisors.
1) Preparation. Generally, formation of teams early is desirable so students get to know each other and their skills. The teams can plan both for research about the site and for tasks to be performed while at the site. Students secure the documentation on the facility, then write a work plan for the site visit. In the process, students must familiarize themselves with the testing to be accomplished, and ready the equipment for field use. 2) Field exercise. The first stage of the field exercise is to tour the facility. Often, this is the first time students are exposed to the sounds and sights of a large industrial facility. The function of the facility as well as the requirements of the regulatory agencies are discussed. The students then break into their teams to conduct sampling. Usually, teams must share at least some of the equipment. All teams are charged with photographic documentation, and usually share photos because of technical difficulties they encounter under field conditions. The test results are then recorded. Some equipment provides direct readings that must be recorded in real time. Some record data over time directly into a laptop or PDA, or remotely collected data can later be downloaded from the calculatorsized basic unit. When the class was smaller, students performed their own “wet-chemistry” for some parameters such as Total Suspended Solids or phosphate,
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Departments but with larger classes, this has become somewhat impractical. Students do learn to work with labs, because we usually have the university labs analyze student BOD samples, which are collected and handled with true “chain-of-custody” documentation.
lect a specified number of questions from a larger list (Appendix B). The most interesting grading project is the presentation, but it is the most difficult to grade. A standardized performance evaluation has been created (Table 1).
3) Presentation. The presentation is always an eye-opening experience for our groups. First, there is the thrill of the group experience with the occasional no-show and laggard. Then, there are assorted technical difficulties—and we have had almost all of them. The film cameras don’t work, the digital cameras suffer some malfunction, or the video is unusable for some reason. The sampling almost always is adequate, because with some exceptions, even the wet chemistry can be performed on site. Beyond the sitegathered data, students must secure plant diagrams, aerial photos, plot plans, plant documentation, and other background data from other sources. Groups often add slides with explanations of technical terms or processes. A sample of the student presentations can be viewed at: ‹http://www.uncw.edu/evs/cutting/ CLASS488/bio488coursemat.html› under the pulldown menu for PowerPoint Presentations.
F) Final survey results
The teams then present their findings. Each member of the group must participate in the presentation. Teams adopt different approaches, from humorous to ominous. Typically, the presentations last 15–20 minutes, with questions from the instructors and other classmates following each.
A final self-evaluation of students’ perceptions of how their knowledge and abilities changed as a result of this course was conducted in the spring semester of 2005. There were marked improvements in their understanding of the basic civics questions about environmental law, regulation, investigation, standards of proof, differences between common and statutory law, and chain of custody. Students’ confidence in their ability to recognize, document, and report environmental violations improved. They felt better able to serve as jurors, expert witnesses, and team members. They reported better understanding of how to find and interpret environmental information, including permits and monitoring data. They rated their ability to conduct actual investigations, use testing procedures, comprehend and explain their results as improved. Interestingly, their only ambivalence was about their ability to serve as a witness (lay, not expert) in a trial, a task at which they expected to be about average. These survey results indicated that most students perceived they had learned significant portions of the course material, although final grades spanned a range of over 30% for the class.
E)
G) Outtakes, missteps and conclusions
Measures
The group presentation forms the backbone of the coursework, but there are several other kinds of graded components. First, there are graded and ungraded homework assignments (Appendix A). There are also traditional exams, of course. We currently use a major “quiz” after the introductory legal materials, and another that covers the scientific materials immediately prior to the presentations. The final exam is cumulative for the course. The format is always short-answer essay so the students have an opportunity to write and to make their case. Often, we will allow students to se-
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The conclusion we have reached after 7 years with this course is that undergraduates can absorb the diverse materials and can perform on a par with many professionals in the field. The students who have had environmental law generally have an easier time at the outset, because they have spent a semester with the legal system and environmental laws. The science students do manage to get up to speed, however, and non-science types (a B.A. in Environmental Studies, for example), may have to scramble on some of the ecological science topics.
Things to consider
1) If possible, have a prerequisite of environmental law or political science. 2) Block classes. We have done a 3-hour marathon once a week to allow for schedules and the field exercise, but students tire in this format. Two sessions per week would be more ideal for learning, but might present scheduling issues since a 3–4 hour block for the field exercise is necessary at least once a semester. 3) Have sufficient equipment. It is axiomatic that in a course like this, equipment adequate to the numbers of students is required. We expanded our course rapidly and had to scramble for additional grant money to purchase photo, instrument, and computer resources. Consult with others on campus, as we did with our Watson School of Education. Many times if an ecology or environmental education course is offered, there will be equipment available that is not always in use.
Conclusion A course in Forensic Environmental Science has proven to be popular and a real stimulus both for students and for the instructors. Best of all, it seems to have equipped our students for much more than just presentation in an adversarial setting: they can communicate more effectively, even with their workplace supervisors, after taking this class.
Literature cited Carson, R. 1962. Silent spring. Houghton Mifflin, Boston, Massachusetts, USA. Clifford, M. 1998. Environmental crime. Aspen, Gaithersburg, Maryland, USA. Drielak, S. C. 1998. Environmental crime: evidence gathering and investigative techniques. Charles C. Thomas, Springfield, Illinois, USA. Houck, O. 2003. Tales from a troubled marriage: science and law in environmental policy. Science 302:1926– 1929. Kubasek, N. K., and G. S. Silverman. 2005. Environmental law. Fifth edition. Prentice-Hall, Upper Saddle River,
New Jersey, USA. Powell, F. M. 1998. Law and the environment. Thomson/ West, Eagan, Minnesota, USA. Salzman, J., and B. H. Thompson. 2003. Environmental law and policy. Foundation Press, New York, New York, USA. Valente, C. M., and W. D. Valente. 1995. Introduction to environmental law and policy: protecting the environment through law. West, Minneapolis, Minnesota, USA.
Internet resources Environmental Defense, Scorecard: ‹http://www.scorecard. org/› U.S. Environmental Protection Agency Envirofacts: ‹http:// www.epa.gov/epahome/commsearch.htm› University of North Carolina at Wilmington, Department of Environmental Studies course materials: ‹http://www. uncw.edu/evs/cutting/CLASS488/bio488coursemat. html› University of North Carolina at Wilmington, Department of Environmental Studies Environmental Law Research Module: ‹http://www.uncwil.edu/evs/module/index. html›
Robert Cutting, J.D. Department of Environmental Studies UNC Wilmington Wilmington, NC 28403 (910) 962-3140 E-mail:
[email protected] Lawrence Cahoon, Ph.D. Department of Biology and Marine Biology UNC Wilmington Wilmington, NC 28403 (910) 962-3706 E-mail:
[email protected]
APPENDIX A The graded homework assignments include both law and scientific topics, such as: 1) View a movie (on reserve) or read a book about environmental investigations, justice, etc., and write a
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Departments brief review following guidelines we prescribe. 2) Select a scientific measurement method from an APHA manual on reserve in the library and write a one-page description as if for a jury about how the method works, what it tells you, and why you would use it. 3) Visit the OPIS web site, identify a set of permittees in the coastal area, then view the enforcement data web site and find out if any of the selected set have been cited for a violation in a selected 12-month period. 4) Use a handout of 12 months’ of DMR data for a local utility and illustrate as if for a jury if and how often they violated their NPDES permit for a selected parameter. 5) Go forth with a camera and photograph using proper forensic technique something you perceive to be an environmental violation, e.g. littering. Submit a set of digital images with factual description of the imagery. Ungraded homework assignments include learning skill sets such as: 1) Visit the EPA Scorecard site and for a zip code of your choice, review and print out one page that relates to air quality, water or toxic releases. 2) You will be assigned a state. Visit the environmental agency website and print out one page from the instructions on how to obtain an NPDES permit to discharge to surface waters. 3) Visit the U.S. Supreme Court website. Use the index to review either a pending case that has to do with the environment or a case since 1990 and write a 2-3 paragraph reaction paper. 4) Visit the TOXMAP site (http://toxmap.nlm.nih. gov/toxmap/main/index.jsp) and identify the toxic release closest to your home; describe what is released, by whom, and how much.
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5) Visit either GOOGLE EARTH (http://earth. google.com) or Microsoft Terraserver (http://terraserver.microsoft.com) and locate any site of a water body. Print out the depiction (Google is more difficult to print); print out the topographic map if you use Terraserver.
APPENDIX B Sample questions from past exams: 1) Discuss the rationale behind the Enforcement Pyramid used by the NC Division of Water Quality, as discussed by Mr. Shiver. Provide the “pyramid” and discuss briefly why each option is selected. 2) Briefly discuss the operation of RCRA as it affects landfills 3) If the legislature of State Green does not like the actions of the state’s environmental agency, what action could the legislature take? 4) What kinds of considerations might cause a regulatory agency to consider filing criminal charges? What considerations make criminal prosecutions difficult? 5) As a manager for a corporation that proposes to discharge liquid effluent to the surface waters of State Purple, what remedies could you employ if your proposed discharge meets EPA standards, but the addition of even that discharge will cause the water quality of the receiving waters to degrade below standard? 6) Describe two different ways in which we regulate pollution. 7) Discuss the two major functions of Trial Courts. 8) What two functions do trial courts serve? 9) If an inspector for the Air Pollution Control District is denied entry by the plant manager into a fac-
tory that has a stack and emissions are visible, what should that inspector do? 10. What is the overall organization of the federal –state partnership created under the Clean Water Act? 11. Discuss BRIEFLY the tests used to determine if a federal court has jurisdiction over a case.
BIO 488 FORENSIC ENVIRONMENTAL SCIENCE TEAM PROJECT GRADE SHEET Team _____________________________________________ Criteria Persuasiveness
Score
Comments
Organization Content Clarity Graphics Photos Graphs Tables Accuracy Scientific Basis Overall Impact
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