Overcoming Legal and Institutional Barriers to the Implementation of Innovative Environmental Technologies

Abstract

The paper’s primary contribution lies in examining the many obstacles to widespread adoption of real-time control (RTC) of stormwater management systems. Like other “smart cities” technologies, RTC is increasingly essential in light of growing challenges to effective water management caused by aging infrastructure, increasing urbanization, changing climate, and shrinking municipal budgets. These systemic changes have stressed existing “static” stormwater systems intended simply to convey flow to nearby receiving waters without regard to overall system conditions.

After studying dozens of RTC implementation examples worldwide, and reviewing numerous legal decisions related to municipal liability for stormwater mismanagement, we distilled the institutional barriers that prevent municipalities from embracing RTC technologies: regulatory fragmentation, workforce readiness, resistance to innovation, data management, cybersecurity, and cost. We also identified two potential legal risks. First, by actively controlling the flow of stormwater, an operator may unwittingly increase the strength of negligence or nuisance claims against it. Second, the sheer amount of data collected by RTC networks effectively puts the operator on notice of problems within its system, further strengthening those tort claims. The paper suggests a variety of strategies to combat these institutional and legal barriers to smooth the transition to RTC systems.

Some of the lessons learned here may apply in analogous situations involving other innovative technologies capable of improving public health and the environment.

Keywords: water law, environmental law, environmental engineering, interdisciplinary

JEL Classification: K32