by Aaron Herrington
This post is part of the student blogger project from the summer session of Space Security Law.
Aaron Herrington is a rising 2L at the University of Mississippi. He is currently pursuing a Certificate in Remote Sensing, Air, and Space Law.
In my previous posts I discussed remote sensing in the context of a commercial setting and when employed by law enforcement, today I discuss the constitutionality of remote sensing in environmental inspections. Congress has included in many pieces of environmental legislation “right of entry” clauses within statutes, which allow governmental investigators access to facilities which would otherwise be off limits. Remote sensing using satellite surveillance is a permissible manner of investigation under the “right of entry” provisions in environmental legislation.
Under this “right of entry” investigators have the power to conduct searches, take samples, and inspect equipment and/or records without first getting a search warrant.1 The problem then becomes, despite this “right of entry” which allows a broad array of investigatory tools, aerial photography, and specifically the legality of the use of satellite imagery under the Fourth Amendment.
In Dow the Court state that an Agency under its investigatory authority, need not identify every possible means that may be employed in the course of exercising the investigatory as prescribed by the authorizing statute. That is, an agency is allowed to employ all means normally associated with them or any that are deemed useful in executing their authority.
The Court in Dow stated that the Environmental Protection Agency (EPA), as a regulatory and enforcement agency, needs no explicit statutory provision to employ methods of observations commonly available to the public at large. Now that satellite imagery is available to the public at large, it is understood that the EPA can use remote sensing satellite technology as an investigatory tool.
One example of the “right of entry” appears in the Clean Air Act.2 This right of entry states that “the authorized representative, that is an investigator, upon presentation of his credentials has the right of entry to, or through any premises of such person or in which any records are to be maintained.”3 Legislative history suggests that this implies permission for entry of building, facilities, and any monitoring equipment present.
Remote sensing satellites are specifically designed to be able to collect data on the earth’s environment.4 This allows satellites to record and analyze electromagnetic energy, including: visible light, infrared radiation, microwave radiation, and all other forms of wave created energy.5 Analyzing this information the EPA is able to detect things such as air pollution by detecting either sensing emission or by detecting deterioration of nearby vegetation, as well as the detection of irrigation violations.
Given the nature in which they employ satellite imagery and because it is no longer reasonable to believe that satellite surveillance does not exist, and because the data collected is generally available to the public, private companies cannot rely on the Fourth Amendment for protection from unwarranted searches under environmental regulations. Therefore, the use of satellite surveillance as a tool of environmental law does not violate the Fourth Amendment.
1 33 U.S.C. § 1318(a)(B) (1988).
2 Clean Air Act § 114, 42 U.S.C. § 7414 (1988).
4 Howard A. Latin, “Remote Sensing Evidence and Environmental Law,” 64 Cal. L. Rev. 1300, 1317 (1976).
5 Jon Erickson, Exploring Earth From Space 53 (1981).