Come and “Take” It: Whooping Cranes, Texas Water Rights, Endangered Species Act Liability, and Reconciling Ecological Scientific Testimony Within the Context of Proximate Causation

Abstract

2. 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 unique complexities of respective disciplines. Within realm of expert testimony, courts must consider inherent principles of ecological research. In an article reviewing prevailing data gaps between science and law, Professor Robert L. Fischman remarked, If Einstein was correct that God does not play dice with universe, then an understanding of modern ecology recruits divine spirit for some other game of chance. (147) This ecological paradigm is defined by realization that because operates stochastically, it is rooted in unpredictable and random forces. (148) Redressing ecological injuries within parameters of law is difficult, particularly because regulatory schemes for environmental protection focus on cause and effect of these injuries. (149) Richard J. Lazarus, noted environmental law scholar and professor of law, articulated challenges that permeate conflict between ecological injuries and a legal regime addressing these injuries. (150) environment, shared by 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 severity of 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) 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 distant future. (156) that permeates ecological injuries, influencing both cause and effect, is perhaps most fundamental challenge associated with proving environmental harm in court. (157) Expounding on root of these difficulties, Professor Lazarus explains: The primary source of this is sheer complexity of natural environment and, accordingly, how much is still unknown about it. (158) This makes it difficult for judges to assign liability for environmental harm on several fronts. With regard to doctrinal importance of foreseeability, uncertainty expresses itself in our inability to know beforehand environmental impact of certain actions. (159) Even more substantial, [i]t equally undermines our ability to apprehend, after fact, what precisely caused certain environmental impacts, a feature that further compounds challenges that judges face when considering scientific testimony in ESA context. (160) Similarly, Professor Fischman also recognized 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) notion that science is uncertain, and not just an aggregation of unconnected facts, both complicates and foreshadows overarching conflict between science and proximate cause. (162) mechanisms that influence ecosystem productivity further compound difficulty in proving causation for long-term ecological injuries. Although complex, natural systems share a dynamic connection in sense that any changes may result in cascading impacts felt throughout 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. …