Environmental Transparency
in a Digital Era

by Russell L. WEAVER, Professor of Law & Distinguished University Scholar, University of Louisville, Louis D. Brandeis School of Law.

Because of the Internet, which has profoundly influenced both society and communication, environmental transparency, and environmental activism, are more possible today than at any point in human history.1 Centuries ago, before the printing press, mass communication was difficult and slow.2 Indeed, for most of human history, books and documents were laboriously prepared by hand, and there was no way to quickly create or reproduce written works.3 Moreover, only a small number of people (usually monks) had the time to write books, and they typically wrote religious texts in Latin.4 During this period, the absence of books was less critical because many people were illiterate.5

With Johannes Gutenberg’s development of the printing press in the fifteenth century, the possibilities for effective communication increased dramatically.6 Gutenberg’s invention involved development of a system of movable type7 that could be used to relatively quickly “compose” pages by assembling the letters into wooden boxes the size of a printed page, and thereby lay-out pages to be printed.8 The composed pages could then be used to create numerous copies of a page.

Gutenberg’s invention represented a dramatic advance in communications technology, altering the “entire fabric of society,” because it encouraged literacy, broadened knowledge,9 and directly impacted the “world of ideas by making knowledge widely available and creating a space in which new forms of expression could flourish.”10 The printing press is credited with contributing to the Renaissance, the Scientific Revolution, and the Protestant Reformation.11

Following the invention of the printing press, and the beginning of the Industrial Revolution, communications technologies changed little for centuries.12 Printers continued to set type by hand, to use screw presses, and to produce only a relatively small number of pages per hour.13 Communications did not advance much until the invention of electricity in the nineteenth century; an invention that enabled people to communicate information through electrical impulses.14 These impulses led to the development of the telegraph in the 1840s, as well as to the development of the telephone, radio, television and satellite networks, and dramatically transformed communication, making nearly instantaneous worldwide communication possible.15 Electricity also led to the creation of the Internet which has had the most dramatic impact on the ability of the people to communicate with each other.

This short article discuss how the Internet has promoted increased communication and transparency regarding environmental issues. It begins by analyzing the evolution in speech technologies, and the unique role that the Internet plays among those technologies. The second half of the article focuses specifically on the environment, and shows how the Internet has allowed ordinary people to obtain information about environmental conditions, to advocate for environmental change, and to connect with others to promote environmental change.

§ 1 – The Internet and the Capacity for Mass Communication

The Internet has been transformative. Prior communications technologies were defined by the fact that they were “controlled” by the elite. Even prior to the fifteenth century, when most writings were undertaken by hand, the ability to write was limited and controlled by monks because they were literate, and had the time to read and write,16 but they focused on creating religious works.17

Although the printing press was revolutionary, in many respects, it did not significantly alter the ability of ordinary people to communicate with each other. The printing press clearly expanded communications possibilities beyond the monks, governmental officials and universities that had previously created written works,18 and gave private individuals the chance to own the means of communication. Because of its utility, the printing press rapidly spread from Germany to other countries, and dramatically affected communication.19 Nevertheless, the printing press was not readily accessible by the masses. The owners of printing presses, especially the owners of newspapers, had easy access to the technology, and could easily communicate their ideas to their fellow citizens and could criticize government.20 The difficulty is that few people had enough money to buy or operate their own printing presses21 because printing required expensive and specialized printing equipment.22 Moreover, market forces limited the ability of newspapers to operate profitably.23

The net effect is that, even though the press revolutionized speech technology, the elite (e.g., governmental officials, newspapers, universities and the rich who owned and controlled presses) were the primary beneficiaries of the new technology, and were the ones who were the most able to use the printing press to disseminate their ideas. Those who did not own presses could try to persuade the owners or editors of newspapers or magazines to publish their ideas (e.g., by writing op-ed pieces or persuasive articles). However, the editors (and reporters) of newspapers served as “gatekeepers” in the sense that they could decide whether or not to publish the ideas of others, and could reject those ideas that they did not like. A writer could (in theory, at least) pay a newspaper owner to publish his ideas, but few could afford to do so, and the publisher always retained the authority to reject the payment and the publication. The net effect was that ordinary individuals did not have assured access to the print medium for disseminating their ideas. If the gatekeepers of the print media refused a publication request, and the speaker could not afford to pay to publish and distribute them, the speaker was left with only more primitive methods of communication (e.g., speech and handwritten methods).

The next major advance in speech technology, the telegraph, also did not enable ordinary people. Only the wealthy could afford to have telegraphs in their homes, and even then the device required mastery of the Morse Code.24 The device was used primarily by government and businesses,25 especially newspapers who used it to transmit or receive news content.26 It was difficult for ordinary individuals to send telegrams. They were required to carry to the telegraph office,27 which would transmit it to a distant telegraph office, and the recipient office would arrange delivery.28 While the telegraph could be used by ordinary individuals, it was relatively expensive for the time (fifty cents for 10 words).29 As a result, although the telegraph offered point-to-point communication for the wealthy, it did not enable mass communication.

Radio and television technology, indeed broadcast technology generally, was revolutionary in terms of its speech potential. For the first time, spoken words and pictures could be transmitted very quickly over very long distances, and could be used to reach large audiences simultaneously. However, because of the limited number of airwaves, as well as because of the significant expense necessary to acquire, establish and operate a radio station, few individuals could obtain a broadcast license.30 Those who did hold licenses effectively became gatekeepers of the technology for those who did not. As with newspapers, radio broadcasters had the authority to decide what would (and, more importantly, would not) be aired.

Television broadcasting was subject to similar limitations. In virtually every country, government has exercised significant control over television broadcasting.31 In some countries, television broadcasting is either government-owned or government controlled. In the United States, television stations are generally controlled by private individuals rather than being government owned,32 and television broadcasters are regarded as exercising a public privilege to broadcast even though they been given fairly broad authority to control what is broadcast on their stations.33 Although ordinary individuals have the right to listen to the broadcasts provided by the owners of television stations, they have not historically had the right to broadcast their own content or ideas over the airwaves except with the permission or consent of the owners of television stations. The net effect was that a non licensee’s ability to access the air waves was subject to the whims of those who held the licenses. A non licensee could create an op-ed piece, or might even try to offer an advertisement, but the holder of the radio or television license was not required to broadcast either of them.34 Although some broadcasters allowed (and allow) private individuals to air op-ed pieces, just as some newspapers publish op-eds or letters to the editor, the broadcaster’s editor or producer retained discretion about whether to air a particular op-ed. The point is that, during most of the twentieth century, the average individual had few affordable and effective means of mass communication. As before the invention of the printing press, individuals could give speeches, and could draft arguments and position papers, but could not readily or easily harness the communications potential of radio and television in order to communicate their political and social ideas.

Cable television,35 and satellite radio and television, also advanced communication, but also came with gatekeepers. Those technologies have dramatically increased the number of viewing and listening options, sometimes increasing station availability by hundreds of times, and have also expanded the number of perspectives available in the information marketplace. However, they did not dramatically increase the ability of average individuals to access the media or participate in freedom of expression. Increasingly, cable television has been dominated and controlled by large corporations,36 and many of these corporations own multiple types of media.37 Even though some cable companies have established local access channels,38 thereby providing ordinary people with some access to this new medium, the overwhelming majority of the hundreds of cable and satellite channels were and are controlled by media conglomerates.

Today, the dynamics of speech are changing in ways that give ordinary people much greater access to communications technologies, and an enhanced potential for mass communication. The distinguishing feature of the modern era is the Internet which has made mass communication both cheap and affordable. Once again, the change is being driven by technological innovation, including the invention of personal computers (PCs) and the development of the Internet.39 The personal computer was a dramatic breakthrough in communications technology because it allowed individuals, especially those who could not afford to own or operate printing presses, to quickly and easily create quality content at home using their own equipment.40 When coupled with a printer, the prices of which had dropped dramatically, the PC enabled ordinary people to print their own content.41 While people may have previously been able to create typed documents using typewriters or other techniques, the PC allowed individuals to create high quality documents with exceedingly high quality graphics, and to print the documents that they had created.42 In addition, they could create multiple copies, and could effectively engage in “desktop publishing.”43 PCs were supplemented by laptop computers,44 and they were followed by a variety of handheld devices that made text messaging possible.45 Handheld devices allow individuals to connect to the Internet even though they are away from their PCs, and allow individuals to send e-mails and text messages, surf the web, access Facebook pages, and do other things. Market penetration for the various handheld devices (including cellphones) now includes 96 percent of young people in the United States.46 Because of these developments, gatekeepers play a much less prominent role in Internet communication. The net effect is that ordinary people possess dramatically enhanced communications possibilities than they have ever possessed before.

The Internet complimented personal computers and handheld devices by enabling ordinary individuals with the means for mass distribution of information.47 With the Internet, ordinary people could bypass traditional methods of communication, and the gatekeepers of those technologies, and distribute content directly to their readers. Indeed, individuals could instantaneously disseminate their ideas all over the world. Not only could individuals send e-mails and create websites, they could also communicate through chat rooms, list serves and blogs. They could also send text messages, and communicate in lots of other (new) ways. Moreover, Internet communications are different from other forms of mass communication because the barriers to access are extremely low. Those who lack the means to buy a computer can gain inexpensive access through a cyber café48, through a library or university49, or through a handheld device. Indeed, a number of businesses offer free Internet connections as a way of encouraging business. The end result is that millions upon millions of people now regularly engage in speech and communication through the medium of the Internet.

Unlike the telephone, an e-mail can be distributed to a very large group of people in far-flung places, and the communication can take place instantaneously. Nevertheless, e-mail is now relatively old school. Indeed, new technologies seem to emerge almost daily. The power of the Internet has been enhanced by the development of new forms of social media such as MySpace and Facebook.50 Included are such Web search and communications devices as listservs, Google, blogs, YouTube, Flickr, Twitter, 3-D panorama, streaming, and other more modern methods of communication. Although Twitter communications involve only 140 characters, nearly 20 million people now use the service (20 million of which are active),51 producing more than 100 million tweets a day,52 and two billion tweets per month.53 In a 24-hour news cycle, in which electronic media can disseminate information quickly, Twitter is even faster, and Tweets can be used by reporters to solicit information from possible sources. By mid-2010, Facebook had more than 500 million users worldwide.54

Blogs are becoming commonplace. As one commentator noted, one “of the great things about the political blogosphere is that it is very open and meritocratic. For very little money, anyone can start a blog and post their thoughts on the Web,”55 and there are lots of other communications options, including online commentary and so-called “viral videos.”56 E-mail has supplemented, if not been eclipsed by, text messaging which has exploded in recent years, and which has created its own societal problems.57 Oral and visual communication have been enhanced by Skype which allows individuals to make phone calls and convey video over the Internet.58 Skype is even available now through handheld devices.59

The Internet is extraordinarily democratic in the sense that individuals are free to write about the issues that move them,60 and to transmit their ideas to a wide range of other people, without having to invest in printing presses or radio and television stations. In addition, ordinary people are no longer forced to go through the traditional gatekeepers of communication, or the societal norms or personal preferences imposed and enforced by those gatekeepers.61 Someone who wishes to publish something can simply do so, and can quickly and easily transmit it around the world. As a result, ordinary individuals are beginning to directly communicate with each other on a scale that has never been seen before, and the result has been a free speech revolution that has affected not only the United States, but the entire world. Through the Internet, ordinary people can now engage in politics from the comfort of their homes, and can reach thousands if not millions of other people. As one commentator noted, “What we are finally seeing […] is a realization of that ideal that Adams and Jefferson and Paine and before him Voltaire and Plato had […] that ideal of having everybody have a shot at participating in this discussion.”62 Political communication is no longer the sole purview of the rich and powerful, but now also resides in the masses.

§ 2 – The Internet and the Environment

The Internet has had a similar impact on environmental communication. At one point, it was relatively difficult for ordinary individuals to obtain and analyze technical environmental information or engage in environmental advocacy.63 This work with done largely by large environmental organizations who could afford to hire large staffs.64 With the advent of the Internet, the calculus has changed. Professor William Gilles is a strong advocate of the idea of “sousveillance” – the idea that members of society can observe the actions of governmental actors and attempt to influence their actions.65 He describes sousveillance as involving the “increasing tendency of the citizenry to watch, gaze, look and monitor, from the bottom, the practices of their governments, or even more widely, everyone’s action thanks to the democratization of ICT tools.”66 In the modern era, sousveillance is possible. As one commentator noted, “Today, one environmental advocate with a 56k modem and a $20 per month Internet account has more power to acquire information, to communicate, and to participate than a whole staff of people did ten years ago.”67

There are a number of websites, including governmental websites, that allow the public to access environmental information.68 For example, the United States Environmental Protection Agency (EPA) maintains a website entitled “Envirofacts”69 that is designed to provide “multi year information about stationary sources of air pollution; large-quantity generators of hazardous wastes; treatment, storage and disposal facilities; Superfund sites ; facilities required to develop Risk Management Plans under the Clean Air Act; facilities that submit Toxic Release Inventory reports characterizing multimedia releases of toxic chemicals; and facilities required to report wastewater discharges pursuant to the Permit Compliance System.”70 Some analysts tout Envirofacts as “one of the best sources of environmental information on the Internet” because it is available in multiple formats, is easy to and can be accessed though a “fill-in-the- blank” form, and “ almost all of the information on the site is derived directly from industry self-reporting to the U.S. EPA and/or its state counterparts, pursuant to mandates imposed by law.”71

Individuals can also access environmental information through private websites. For example, the Right-To-Know Network72 “offers information from government files about chemical accidents and unpermitted releases, chemical testing and federal civil enforcement action, and also includes other information (e.g., census, environmental, and mapping information).73 In addition, Environmental Defense maintains the website Scorecard74 which publishes information in an effort to “encourage and sustain activism.” Scorecard focuses on matters “like lead poisoning and runoff from animal lots,” and includes “a report card ranking system by which states (and in most cases, smaller geographic areas) and facilities are contrasted with each other.” Another website is maintained by the Natural Resources Defense Council’s (NRDC) which posts information on its website75 related to the EPA’s Cumulative Exposure Project (CEP).76 There are other similar websites.77

Individuals can also use the Internet to locate scientific and technical information that will help them evaluate the technical environmental information that they find on the EPA website or other sites.78 For example, the U.S. EPA’s Office of Air Quality, Planning and Standards provides the Technology Transfer Network79provides a “clearinghouse of the scientific and engineering information used to generate EPA’s multiple Clean Air Act activities.”80 The website includes the Maximum Achievable Control Technology (MACT), including emissions and pollution control information reported by industry sector, and the Ozone Transport Assessment Group, which documents “nitrogen oxide (NOx) transportation across the eastern United States.”81 Of course, individuals can also use search engine directories such as the Google Web Directory which “offers numerous subcategories of websites under ‘environment,’ including ten sites on environmental ethics, seventy-six sites on forests and rainforests, and 385 sites on biodiversity.”82

In addition to accessing technical and scientific information on the Internet, individuals can also access legal information through such sites as “Findlaw” and the Government Printing Office’s “GPO Access.”83 Findlaw84 “provides a wide array of useful legal documents and links to legal resources for environmental advocates,” including the United States Code, the Code of Federal Regulations and Federal Register notices, as well as statutes and administrative codes for many states, and some U.S. Supreme Court opinions and lower court information and opinions.85 “Findlaw also provides links to websites for nonprofit legal groups and information regarding the U.S. House of Representatives, Senate, and Council on Environmental Quality.”86 GPO Access87 provides many of the same documents available on Findlaw, including a collection of earlier U.S. Supreme Court opinions, as well as “congressional bills and hearing reports, House and Senate reports and Congressional Records.”88

Environmental advocates can also use the Internet to facilitate public participation in permitting, rulemaking, and legislation. For one thing, individuals can now use the Internet to ascertain information regarding ongoing administrative processes. For example, the EPA’s rulemaking process can be accessed through the web.89 On a local level, many states and regional EPA now place online draft permits, public notices, final permits, summary documents, and point-of-contact information online.90 For example, in Illinois, air permits are posted on a single website.91

The Internet also offers public interest advocates a new way to communicate with one another and to organize political constituencies. For example, the Clean Air Network (CAN) is a Washington-based organization that builds coalitions among a wide range of groups from across the country in an effort to promote clean air.92 The Internet has also enabled the media to advocate for governmental responses to climate change.93 For example, one blog on the New York Times website advocated in favor of the climate change theory,94 and another blog discussed ways that ordinary people can combat climate change.95 The evidence suggests that some blogs have broad readership.96 In addition, there is evidence that governmental policymakers are aware of what is being written in blogs.97 For example, governmental policymakers have critiqued information contained in blogs (even though those policymakers might not have been altered or shifted by the blogs).98

Of course, like any communications technology, the Internet works both ways. In other words, it can be used not only by environmental activists, but also their opponents, and can be both a source of legitimate information and misinformation.99 As one commentator noted, although “blog after blog denies climate change is a problem or that people’s actions have anything to do with it,” but often, “there’s no basis behind what is reported.”100 In one instance, computer hackers sought to undermine claims regarding climate change.101 They did so by breaking into a computer server at a climate research center in Britain, stealing correspondence between U.S. and British researchers, and claiming that the correspondence showed that the case for climate change had been overstated and “attempted to manipulate data.”102 Disclosure of the information created a furor because it was released only weeks before the Copenhagen climate change conference.103

Even in China, a country in which the government has engaged in aggressive censorship, the Internet is beginning to significantly reshape society.104 China now has some 298 million Internet users, as well as some 70 million bloggers,105 and those bloggers have repeatedly found ways to avoid governmentally-imposed Internet restrictions.106 The Internet has been vigorously employed by ordinary Chinese people to pressure the Chinese government on environmental issues. For years, the Chinese government has tried to downplay the existence of pollution within the country.107 As a result, when airline flights are cancelled or delayed due to pollution, airport authorities make no reference to pollution in their announcements, but instead suggest that the cancellations are due to “weather conditions.”108 Likewise, when smog envelopes a city, the government characterizes the haze as “fog, not fumes.”109 These efforts to silence communication are repeatedly being challenged. Although Twitter feeds are blocked in China, U.S. Embassy pollution readings in China are distributed through unblocked sites.110 Likewise, when the Chinese government claimed that air quality was improving, disbelieving activists purchased air quality monitors, and began posting environmental readings on the Internet.111 Environmental activists in other Chinese cities did likewise.112 As pollution data began to mount, Chinese citizens began to demand environmental improvements, and air quality standards were heightened.113 In one instance, a video about the environment went viral in China.114 The video received millions of hits within the space of a week,115 and was ultimately banned by the Chinese government,116 but not before it created a national stir over Chinese environmental issues.117

Conclusions

The Internet has dramatically transformed communication, including communication related to the environment. It has enabled ordinary people to engage in “sousveillance” in the sense that they can access environmental information from both governmental and private websites. In addition, it has enabled ordinary people to access the technical information needed to evaluate environmental information, and has provided individuals with the legal information needed to bring legal changes. In short, the Internet has resulted in a shift in the balance of power that “has the potential for profound implications among the regulated community, regulators, and public interest advocates,” and that will make it “increasingly difficult for the regulated community to avoid public scrutiny of environmental performance.”118 The Internet has also provided individuals with the means to mobilize environmental activism. Through e-mails, listserves, and a multitude of other Internet devices, individuals have the ability to communicate with each other, to mobilize others, and influence the political process. The net effect is that ordinary individuals have a previously-unavailable capacity to engage in environmental activism.