Come and 'take' it: whooping cranes, Texas water rights, Endangered Species Act liability, and reconciling ecological scientific testimony within the context of proximate causation.

Author:Miller, Brett A.
Position::IV. Challenges with Using Ecological Research as Scientific Evidence to Prove Causation B. Challenges Associated with Proving Ecological Injuries 2. Complexities of Ecological Field Research Compared with Laboratory Methodology through VII. Conclusion, with footnotes, p. 129-155
  1. Complexities of Ecological Field Research Compared with Laboratory Methodology

    Although scientific disciplines share similar attributes, including hypothesis testing and empirical data, it is essential to highlight the unique complexities of the respective disciplines. Within the realm of expert testimony, courts must consider the inherent principles of ecological research.

    In an article reviewing the prevailing data gaps between science and the law, Professor Robert L. Fischman remarked, "If Einstein was correct that God does not play dice with the universe, then an understanding of modern ecology recruits the divine spirit for some other game of chance." (147) This ecological paradigm is defined by the realization that because "nature operates stochastically," it is rooted in unpredictable and random forces. (148)

    Redressing ecological injuries within the parameters of the law is difficult, particularly because regulatory schemes for environmental protection focus on the cause and effect of these injuries. (149) Richard J. Lazarus, noted environmental law scholar and professor of law, articulated the challenges that permeate the conflict between ecological injuries and a legal regime addressing these injuries. (150) The environment, shared by many cohabitating species, is subject to "many simultaneous and sporadic actions over time and space." (151)

    Difficulties arise when seeking to prove causation, because environmental harm is dynamic and not static, as the severity of the harm often increases over time. (152) Because nature is not confined to a laboratory, "[a]ctions in one location may have substantial adverse effects in very distant locations." (153) The cause and effect of an ecological injury may be physically distant. (154) Further compounding these spatial challenges, ecological injuries may also be temporally distant. (155) This lack of imminence may prevent an injury from being fully-realized until some point in the distant future. (156)

    The uncertainty that permeates ecological injuries, influencing both cause and effect, is perhaps the most fundamental challenge associated with proving environmental harm in court. (157) Expounding on the root of these difficulties, Professor Lazarus explains: "The primary source of this uncertainty is the sheer complexity of the natural environment and, accordingly, how much is still unknown about it." (158) This uncertainty makes it difficult for judges to assign liability for environmental harm on several fronts.

    With regard to the doctrinal importance of foreseeability, "uncertainty expresses itself in our inability to know beforehand the environmental impact of certain actions." (159) Even more substantial, "[i]t equally undermines our ability to apprehend, after the fact, what precisely caused certain environmental impacts," a feature that further compounds the challenges that judges face when considering scientific testimony in the ESA context. (160)

    Similarly, Professor Fischman also recognized the pervading conflict between courts and ecology, particularly with regard to notions of scientific uncertainty. He explained, "the best we can do about predicting outcomes or explaining occurrences is to describe relative likelihoods." (161) The notion that science is uncertain, and not just an aggregation of unconnected facts, both complicates and foreshadows the overarching conflict between science and proximate cause. (162)

    The mechanisms that influence ecosystem productivity further compound the difficulty in proving causation for long-term ecological injuries. Although complex, natural systems share a dynamic connection in the sense that any changes may result in cascading impacts felt throughout the ecosystem. (163) For instance, shifts in resource availability present a challenge to scientists because proving causation can be problematic "due to lack of baseline data, natural variability, and problems of multiple stressors and multiple sources." (164)

    From the perspective of the dynamic ecosystem at issue in the Aransas Project litigation, it is important to note that ecological injuries are often rooted in multiple causes; a truism that is especially relevant when assigning liability to a singular entity. Because these injuries are "rarely the product of a single action at an isolated moment in time," challenges pertaining to equitable decision-making abound when judges base their determinations solely on science, rather than consulting the established legal principles of proximate cause. (165)

    Proving causation is especially problematic because ecological food chains are inherently attenuated, such as the whooping crane--blue crab nexus described in Aransas Project. As energy transfers sequentially between different trophic levels, it does so in the presence of multiple interconnected food chains. (166) The intrinsic complexities of the natural system illuminate the fact that endangered species are not isolated from the potential indirect effects of various sources. (167)

    Relying solely on scientific testimony may further complicate the task of proving causation, primarily because species are in constant competition for food, resources, and space. (168) When judges look to scientific evidence to prove ecological injuries, they may not fully consider that "environmental harms are more typically the cumulative and synergistic result of multiple actions, often spread over significant time and space." (169)

    Dr. R. Douglas Slack, testifying as an expert scientific witness in Aransas Project, described the challenges associated with incorporating science into the courtroom:

    But science advances. Science is not static. [We] may have a conclusion in one study at one time, but as we move forward and advance our knowledge of an ecosystem, that's going to change. And, so, I may be guilty of moving forward in science and changing my conclusions. (170) Dr. Slack's quote underscores the dichotomy between science and law, which should serve to caution legal regimes that choose to overlook established proximate causation jurisprudence solely in favor of scientific testimony, particularly when assigning liability for violations of the "take" prohibition.

    In general, science involves the construction of convincing explanations through the acquisition of reliable knowledge. (171) As debate throughout the scientific community ensues on a particular theory, not all testimony may be fundamentally neutral or rooted in objectivity. (172) The debate among credentialed ecologists is contentious, as limited funds for research are often controlled by agencies with agendas. (173) Scientists often have personal values that influence (consciously or unconsciously) their questions, their assumptions, and the interpretation of their experimental results. (174) These individuals work for various state and federal agencies, companies, research institutions, and other public interest groups. (175) As a result, vigorous scientific debate and underlying personal biases may be difficult for courts to assess.

    1. Complications with Using Science to Prove Causation for Ecological Injuries in the ESA Context

      An underlying tension between science and the law permeates the ESA, "from which a 'law-science' decision-making process emerges, befuddling to lawyers and scientists alike." (176) The common law's judicial principles, rooted in linear models of cause and effect, may not adequately comprehend the complex and erratic characteristics of nature. (177)

      Predictably, courts face a dilemma because "the common law concept of proximate causation fails to jibe with the way nature works." (178) Although this statement might suggest that courts should shift to incorporate more science when considering ESA liability, this reasoning emphasizes precisely the opposite. It instead proposes that perhaps we ask courts to do too much with regard to scientific comprehension within the courtroom. Because judges are experts in the field of law, it is unrealistic to require them to look beyond their legal expertise in an effort to understand the complex mechanisms of nature.

      Requiring judges to reach the same level of understanding as an established scientist during a week-long bench trial is not only impractical, but may also lead to inequitable results. Uncertainty and multiple causes permeate ecological injuries, further supporting the reason why courts should continue to use proximate cause as a limit when reviewing scientific testimony, especially in the context of the "take" prohibition.

      Aside from requiring all judges to obtain doctoral degrees in ecology if they wish to hear ESA cases, perhaps it is correct to rely upon Justice O'Connor's tort principles as an overarching safeguard. (179) Although some scholars disagree, additional commentators suggest that courts should continue to borrow from the common law by applying proximate cause principles when resolving disputes regarding the "take" prohibition. (180)

      Scientists make predictions based on the probability of an aggregated behavior occurring within an ecosystem; yet the exact same ecosystem may still "defy identification of direct cause-effect for their components." (181) Despite the difficulties encountered by scientists in proving causation within their own respective research, some scholars nevertheless continue to advocate against incorporating tort principles into the take analysis. (182)

      Seemingly, this uncertainty makes it more difficult to prove causation. "What is easily foreseeable to those with a modicum of training in natural history may not be foreseeable to those who hold widely prevalent, but erroneous, views of ecology and animal behavior." (183) This proposition echoes Justice Breyer's aforementioned reluctance to turn the courtroom into a scientific laboratory. More precisely, determining whether the cause and effect are foreseeable "will depend upon the judge's scientific understanding of the direct relationship...

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