Adversarial Science

• Author: Sanne H. Knudsen
• Position: Assistant Professor of Law, University of Washington School of Law
• Pages: 1503-1557

1503

Adversarial Science

Sanne H. Knudsen

ABSTRACT: Adversarial science—sometimes referred to as “litigation

science” or “junk science”—has a bad name. It is often associated with the

tobacco industry’s relentless use of science to manufacture uncertainty and

avoid liability. This Article challenges the traditional conception that

adversarial science should be castigated simply because it was developed for

litigation. Rather, this Article urges that adversarial science is an important

informational asset that should, and indeed must, be embraced.

In the ecological context, adversarial science is vital to understanding the

ecological effects of long-term toxic exposure. Government trustees and

corporate defendants fund intensive scientific research following major

ecological disasters like oil spills as part of a process known as natural

resource damage assessment (“NRDA”). During this process, lawyers engage

scientists to advance advocacy positions, either to support or to defeat claims

for natural resource damages. The NRDA process presents an unparalleled

opportunity to intensively study the effects of toxic exposure to ecosystems at

the very moment those impacts are unfolding. At the same time, the science

that emerges is adversarial; it suffers from the same conflicts of interests and

perceptions of bias as other result-oriented science.

While scientists and legal scholars have written extensively about the conflicts

of interest embedded in other forms of policy-relevant science, surprisingly little

scholarly attention has been given to the influence of litigation on NRDA

science or the implications of that influence on the broader scientific

understanding of ecological harms. This Article casts a bright light on

adversarial science, using the scientific literature to expose the influence of

litigation on NRDA science. More importantly, this Article—while

acknowledging the risks of adversarial science—urges policymakers to

embrace it. Ultimately, this Article offers solutions that both release

adversarial science from traditional clouds of suspicion and allow

 Assistant Professor of Law, University of Washington School of Law. I would like to

thank Professors Bob Anderson, Bill Rodgers, Wendy Wagner, Lisa Heinzerling, Sandra Zellmer,

Mark Squillace, Sarah Light, Alex Wang, and other participants at the University of Washington

Young Environmental Scholars’ Workshop for feedback to earlier versions of this work. I would

like to especially thank Professor Wendy Wagner for her encouragement to develop this project;

Professor Elizabeth Porter for her invaluable insights; Professor Holly Doremus for her helpful

comments; and Devra Cohen for her research assistance.

1504 IOWA LAW REVIEW [Vol. 100:1503

adversarial science to inform public policy on the long-term harm from toxic

exposure.

I. INTRODUCTION ........................................................................... 1504

II. THE PROMISE OF ADVERSARIAL SCIENCE .................................... 1508

A. THE NECESSITY OF LITIGATION SCIENCE................................. 1509

B. COMPARING ADVERSARIAL SCIENCE TO OTHER POLICY-RELEVANT

SCIENCE ................................................................................ 1514

III. DIAGNOSING THE PROBLEMS OF NRDA SCIENCE ....................... 1521

A. LITIGATION SCIENCE AS SUBSERVIENT SCIENCE ....................... 1522

B. THE FUNDING EFFECT AND ADVANTAGE OF UNCERTAINTY ....... 1527

C. PROBLEMS OF PARITY AND ASYMMETRICAL TRANSPARENCY .... 1533

IV. STRUCTURAL COMPLICATIONS OF LONG-TERM INJURIES ........... 1538

V. PROPOSED SOLUTIONS ................................................................ 1544

A. FUNDING THE BASELINE ......................................................... 1544

B. A LONG-TERM MULTIPLIER ................................................... 1552

C. EXPANDING REBUTTABLE PRESUMPTIONS AND RULE 11

CERTIFICATIONS .................................................................... 1553

VI. CONCLUSION .............................................................................. 1556

I. INTRODUCTION

While no one hopes for environmental disasters, a great deal can be

learned from them. In fact, much of what we know of long-term ecological

exposure to toxins comes from studies undertaken in the wake of massive oil

spills like the Exxon Valdez or the Deepwater Horizon. In many ways, these

events—though unfortunate—present an unparalleled opportunity to

intensely study the effects of toxic exposure to ecosystems. Laboratories, for

instance, cannot replicate the conditions often needed to study the complex

response of ecosystems to toxins. Though inordinately complicated, the

ecological conditions created post-Exxon Valdez or post-Deepwater Horizon allow

for real-time observation of the intricate and entangled ways that ecosystems

are impacted by toxic exposure. The political support for intensive scientific

inquiry is also piqued in the wake of mass-disaster events. Media attention and

public outcry combine to create a demand for comprehensive study that may

otherwise have less enthusiastic political support.

2015] ADVERSARIAL SCIENCE 1505

As an example of the informational opportunities created by mass-

disaster events, consider the intense study of the Gulf of Mexico that is

currently underway to determine the nature and magnitude of injuries caused

by the 2010 Deepwater Horizon oil spill.1 Technical working groups consisting

of government, academic, and industry scientists have been assembled to

study the ecological impacts of oil spills on a wide variety of species and their

habitats, from mudflats to corral.2 For each affected resource and habitat, the

scientific inquiry is cumbersome and detailed. Some scientists are tasked with

evaluating the impacts of oil and chemical dispersants on representative

groups of aquatic species.3 To do so, they must consider a range of exposure

pathways, including “oil droplets . . . oiled sediment, and ingestion of

contaminated prey [or] food.”4 Other studies are focused on enhancing

knowledge of deepwater communities, which first requires “[m]apping soft-

and hard-bottom habitats along the continental shelf and sea floor.”5 The

amount of scientific data being generated from this collective research is

massive,6 so much that specialized support teams have been assembled to

create and manage information databases.7

Importantly, the study in the wake of these disasters is not just short-lived.

There is increasingly a focus on studying the long-term, chronic impacts. After

the Deepwater Horizon spill, government trustees have declared their

commitment “to a long-term assessment of the Gulf, recognizing that the

1. For a detailed discussion of the coordinated scientific research following the Deepwater

Horizon oil spill, see generally NAT’L OCEANIC & ATMOSPHERIC ADMIN., NATURAL RESOURCE

DAMAGE ASSESSMENT: APRIL 2012 STATUS UPDATE FOR THE DEEPWATER HORIZON OIL SPILL (2012)

[hereinafter 2012 DEEPWATER HORIZON STATUS REPORT], available at htt p://www.gulfspill

restoration.noaa.gov/wp-content/uploads/FINAL_NRDA_StatusUpdate_April2012.pdf.

2. Id. at 15; see also id. at 27–37 (providing additional information on the range of

resources and habitats that are being studied in the wake of the Deepwater Horizon oil spill,

including: deepwater communities, water column and invertebrates, marine fish, marine

mammals, sea turtles, nearshore sediment and resources, submerged aquatic vegetation, oysters,

shallow water coral, shorelines, birds, terrestrial species, and human use).

3. Id. at 29.

4. Id. at 30.

5. Id. at 32.

6. BP reports that

[s]ince May 2010, BP has worked with state and federal trustees to develop and

implement more than 240 initial and amended work plans to study wildlife, habitat

and the recreational use of these resources. By the end of 2014, BP had sp ent

approximately $1.3 billion to support the assessment process.

Restoring the Environment, BP, http://www.bp.com/en/global/corporate/gulf-of-mexico-restoration/

restoring-the-environment.html (last visited Feb. 17, 2015).

7. 2012 DEEPWATER HORIZON STATUS REPORT, supra note 1, at 28 (“[T]he data management

team has been working to collect, record and assimilate the thousands of environmental samples,

analytical and observational records.”).