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

      A. The Plight of the Whooping Crane
      B. Guadalupe Estuary
      C. Relationship Between Texas Water Rights and
         Freshwater Inflow in the Guadalupe Estuary
      D. The Aransas Project's Allegations Against TCEQ
      A. Section 9 "Take" Prohibition
      B. Justice O'Connor's Reliance on Proximate
         Causation in the Realm of ESA Liability
      A. The Daubert Trilogy
      B. Challenges Associated with Proving Ecological
          Injuries in the Daubert Context
        1. "Hard" Science vs. "Soft" Science
        2. Complexities of Ecological Field Research
           Compared with Laboratory Methodology
      C. Complications with Using Science to Prove
          Causation for Ecological Injuries in the ESA
      A. District Court's Reliance on Expert Scientific
        1. Inconsistent Review of Expert Scientists
        2. The Notorious Blue Crab Debate
        3. Contradictory Approach to Daubert's
           "Scientific Knowledge" Framework
      B. Fifth Circuit's Reversal on Proximate Causation
      C. Fifth Circuit's Denial of TAP's Petition for
          Rehearing & TAP's Petition to the Supreme Court
          of the United States
      A. Proximate Cause Alleviates the Potential for
          Treacherous Precedent
      B. Future Tension Between State Water Rights and
          Endangered Species Act Protection


Despite the increasing importance of science in the legal arena, distinct scientific disciplines present courts with challenges. The successful preservation of endangered or threatened species requires an understanding of the scientific discipline of ecology. (1) In the realm of Endangered Species Act (ESA) liability, the inherent complexity associated with ecological injuries exacerbates the task of proving causation. The extension of ESA liability to attenuated links of causation has provoked much debate, particularly because these conditions are often prevalent in nature. Although environmentalists recognize that the ESA is essential to the survival of listed species, private landowners often denounce these same provisions as overreaching intrusion by a governmental entity. (2)

In this light, the proximate causation standard can function as a necessary safeguard to prevent assigning liability to a party or entity that otherwise may be just one insignificant link in an attenuated ecological chain. In the context of proving causation for ESA liability, ecological testimony may degrade the court's ability to reach an equitable outcome. Thus, proximate causation is an essential piece of the ESA liability puzzle. Regarding the unique challenges encountered within the discipline of ecology, this article explores the practicality of the proximate causation requirement--particularly as a necessary restraint on the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. (3)

In The Aransas Project v. Shaw, the United States District Court for the Southern District of Texas held that the Texas Commission on Environmental Quality (TCEQ), in its authority to manage state water rights, was liable for the "take" of whooping cranes in violation of ESA [section] 9. The Fifth Circuit Court of Appeals reversed the holding because the Aransas Project failed to prove that TCEQ's water permitting program was the proximate cause of the deaths of twenty-three endangered whooping cranes during the drought of 2008-09. As seen during the course of the Aransas Project litigation, proximate causation ensures that trial court decisions are founded upon established legal theory, rather than the complexities of understanding scientific methodology.

This article does not dispute the importance of science within the legal discipline. Rather, it explores the practicality of incorporating various scientific disciplines into the law, such that the principles underlying these disciplines present inherently different challenges. The dichotomy is apparent from a broad perspective: "In environmental policy, the data gaps between what the law demands and what science supplies reflect the disparate objectives and epistemological approaches of the two fields." (4) Although scientific evidence and testimony will obviously continue their essential roles, the presence of science in the courtroom should not detract from the established truism of proximate causation when examining causal links in complex ecosystems.

This article begins by outlining the conflict in Aransas Project, describing the relationship between the endangered whooping crane, their essential habitat, and Texas water rights. In Part III, the article reviews the ESA "take" prohibition, specifically elaborating on the importance of Justice O'Connor's adherence to the standard of proximate causation in Babbitt v. Sweet Home. (5) Part IV explores the challenges associated with proving the cause of an ecological injury, an issue exacerbated by the Daubert trilogy, which enumerated a framework for courts to address the admissibility of scientific testimony. (6) Finally, Part V analyzes the Aransas Project litigation, illustrating the dichotomy between the district court's dependence on scientific testimony and the Fifth Circuit's reliance on proximate causation. Part VI concludes by framing the Aransas Project decisions as precedent within the broader ESA debate. In the realm of ecology and the ESA, traditional scientific research settings, such as the laboratory or field, are the best arena for scientific debate, particularly when adherence to proximate causation may enhance the court's ability to reach an equitable decision.


A. The Plight of the Whooping Crane

Whooping cranes (Grus americana) currently face the threat of extinction, with merely 500 individuals estimated to exist worldwide. (7) This "majestic bird" is the largest bird in North America, standing an imposing height of five-feet and possessing a wingspan greater than eight-feet. (8) In 1970, the United States Fish and Wildlife Service (USFWS) listed the species as endangered, affording the crane protection under the Endangered Species Act (ESA). (9) The world's only wild population of whooping cranes is the Aransas-Wood Buffalo (AWB) flock, comprised of approximately 300 individuals. (10) The flock annually migrates thousands of miles: from Canada's Wood Buffalo National Park in the northern Alberta province, to their wintering grounds in Aransas National Wildlife Refuge, Texas (Aransas Refuge). (11)

Robert Porter Allen, a prominent ornithologist in the early twentieth century, initiated conservation efforts to bring this iconic bird back from the brink of extinction. Allen best described the plight of this species: "If we succeed in preserving the wild remnant that still survives, it will be no credit to us; the glory will rest on this bird whose stubborn vigor has kept it alive in the face of increasing and seemingly hopeless odds." (12) Despite being on the verge of extinction in 1941 with just fifteen wildbirds remaining, federal and state conservation efforts have continued the arduous and resource-intensive process of species recovery. (13)

B. Guadalupe Estuary

Each fall, whooping cranes embark on their annual migration from the Canadian breeding grounds to the species' winter habitat in the Aransas Refuge, subsequently returning to Canada in April of the following year. The Aransas Refuge, located along the Texas gulf coast, is comprised of 9,000 hectares of salt flats and surrounding estuarine areas. (14) San Antonio Bay, commonly referred to as the Guadalupe estuary, is adjacent to the crane's wintering ground in the Aransas Refuge and considered part of the flock's critical habitat. (15)

An estuary is a semi-enclosed body of water where the freshwater and saltwater mix, often described as the area "where the river meets the sea." (16) As a result, estuaries are one of the most highly productive natural systems on earth. The Guadalupe estuary receives freshwater inflows from the San Antonio and Guadalupe Rivers, maintaining a dynamic ecosystem that provides the whooping crane flock with essential foraging habitat. (17) Foraging behavior greatly affects a population's health, ability to survive, and reproductive ecology, as an animal's search for food resources is fundamentally intertwined with its environment.

C. Relationship Between Texas Water Rights and Freshwater Inflow in the Guadalupe Estuary

The quantity of freshwater flowing into the cranes' critical habitat in the Guadalupe estuary is related to the Texas Commission on Environmental Quality's (TCEQ) permitting authority for Guadalupe River withdrawals. (18) The TCEQ has general jurisdiction over both "surface water and water rights" in Texas.19 The surface waters are owned by the State of Texas, such that "the water of the ordinary flow. . .of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico." (20) Unless exempted by a statute, no person may divert, store or impound state-owned water without TCEQ's authorization. (21)

TCEQ authorizes withdrawals of surface water by issuing withdrawal permits or certificates of adjudication. (22) In Texas, the right to withdraw surface water is usufructuary, such that the owner has a right of use, but not complete ownership. (23) The prior appropriation doctrine governs Texas' water rights, invoking the principle of "first in time, first in right." This provision regulates the allocation process and resolves conflicts between lawful appropriators in times of water shortage. (24) The oldest water right is the most senior and enables its owner to withdraw all of the water to which he is entitled before a more junior right holder can take his allocation. (25)

Although the Texas Water Code requires TCEQ to consider environmental impact in its permitting decisions, the Code does not authorize TCEQ to grant water rights for instream flows based on environmental concerns. (26) The regulatory scheme includes a "during emergencies" provision, such that permitting related to environmental flows might be suspended during drought conditions. (27) Texas water rights, through the TCEQ's permitting requirements and regulatory powers, may influence the quantity of freshwater reaching the state's estuaries, thus potentially affecting the availability of freshwater to users throughout the state. (28)

Involving a finite resource, the issue of sufficient freshwater flow will continue to be a source of conflict in this state, particularly as the dichotomy between those interested in the health of Texas estuaries and those interested in securing water supplies for agricultural, industrial, or municipal uses becomes more apparent.

D. The Aransas Project's Allegations Against TCEQ

During the winter of 2008-09, coinciding with a severe drought, Aransas Refuge researchers noted an increase in whooping crane deaths within the Guadalupe Estuary and surrounding areas. (29) The incident motivated environmentalists, coastal businesses, bird enthusiasts, and others to form "The Aransas Project" (TAP), a non-profit Texas-based entity. The purpose of the alliance was to promote responsible water management of the Guadalupe River basin and to ensure that freshwater continues to flow from the Texas Hill Country to the bays. (30)

In hopes of alleviating this concern, TAP argued that TCEQ's management of water diversions along the San Antonio and Guadalupe River systems caused the deaths of endangered whooping cranes. (31)

On March 10, 2010, TAP filed a lawsuit alleging that the TCEQ violated the ESA's "take" prohibition. (32) TAP requested injunctive relief to ensure that the AWB flock has sufficient water resources to prevent future "takes" of whooping cranes. (33) TAP alleged that TCEQ water permitting reduced the quantity of freshwater that flowed to the coast, resulting in high salinity levels throughout the Guadalupe estuary. (34)

TAP argued, most importantly, that these high salinity levels decreased the abundance of blue crabs (Callineches sapidus) and wolfberries (Lycium carlinianum), (35) which are the primary nutritional resources for whooping cranes. According to TAP, the cranes experienced food stress upon altering their foraging behavior to search for additional resources. (36) TAP suggested that the birds expended more energy foraging for alternative prey-ultimately resulting in emaciation and increased susceptibility to disease, followed by eventual death. (37)

The crux of TAP's argument was that both TCEQ's actions (and inaction), with regard to the management of freshwater diversions along the San Antonio and Guadalupe River systems, caused "harm" to the endangered whooping cranes by actually injuring and killing an estimated twenty-three birds. (38) TAP named several TCEQ officials as defendants, including Chairman Bryan Shaw. (39) The court granted leave to intervene for multiple parties, including the Guadalupe-Blanco River Authority, the Texas Chemical Council, and the San Antonio River Authority. (40) For purposes of this article, all state and intervening defendants are hereinafter referred to collectively as "TCEQ." The numerous amicus curiae briefs filed on behalf of both parties highlight the statewide ramifications of the decision, particularly for agricultural and municipal interests, as well as environmentalists. (41)


Described as the "pit bull" of environmental laws, the Endangered Species Act is among the most "revered and reviled" tools for ecosystem protection. (42) The ESA scrutinizes activities that may affect listed species and provides rigorous protection through the conservation of ecosystems, particularly those that serve as critical habitat for threatened and endangered species. (43) Although decisions to assign liability may positively affect the health of certain populations, these same decisions may serve as a detriment to the development or use of natural resources, including land and water. (44)

In Tennessee Valley Authority v. Hill, the U.S. Supreme Court broadly proclaimed that the ESA's purpose was "to halt and reverse the trend toward species extinction, whatever the cost." (45) This comprehensive legislation represented a regulatory scheme to preserve biodiversity, whereby populations could increase through conservation and protection measures. (46)

Congress enacted the ESA in 1973 to prevent the further elimination of threatened and endangered species in the United States. (47) Scientific review is at the core of ESA jurisprudence, as science is particularly important to the listing process, designating critical habitat, and to proving the "take" of a protected species. (48) Section 4 authorizes the USFWS and the National Oceanic and Atmospheric Administration (NOAA) to identify and list species as endangered or threatened. (49) The ESA requires that agencies found their decisions "solely on the basis of the best scientific and commercial data available." (50) These agencies may then designate critical habitat and develop recovery plans, further incorporating scientific considerations into the agency consultation process. (51)

A. Section 9 "Take" Prohibition

ESA [section]9 prohibits both indirect and deliberate "takes" of all species listed as endangered. (52) The ESA broadly defines "take" as any actions or inactions that "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a protected species. (53)

More specifically, the term "harm" prohibits "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." (54)

The ESA authorizes citizen-suits, as federal district courts have jurisdiction to enforce ESA provisions. (55) The party alleging the "take" must satisfy the requirement of standing by demonstrating they have suffered an injury in fact, that the injury is "fairly traceable" to the defendant's actions, and that a favorable decision will likely redress the injury. (56)

The "take" prohibition governs the actions or inactions of all "persons," including any "officer, employee, agent, department, or instrumentality of ... any state." (57) Much controversy surrounds the extension of ESA liability to private landowners and developers, as the discovery of an endangered species on individual's property may prevent the landowner from using that property. (58)

Perhaps even more controversial, this prohibition also applies to actions by state agencies that adversely affect the habitat of a species, potentially resulting in the indirect "take" of an endangered species. (59) In fact, citizens have challenged this prohibition under a range of situations. In Strahan v. Coxe, citizens challenged the issuance of licenses by a Massachusetts agency that allowed fishermen to use gear that entangled and harmed northern right whales. (60) As a "third-party taking" situation, the court enjoined the state from permitting the entire fishing industry to use the harmful gear, rather than adjudicating multiple citizen-suits against each individual commercial fishermen. (61)

An alleged activity need not directly kill or injure the species to violate ESA [section]9; rather, the activity may indirectly harm the species by modifying its essential habitat. When the connection between the activity and alleged "take" is less direct, establishing remote chains of causation impedes a court's ability to rule on the "take" prohibition.

Although science plays a vital role in the listing process and ability to promulgate other ESA provisions, (62) using science as a vessel to establish causation is a much more convoluted enterprise, especially with regard to proving a violation of the "take" prohibition.

B. Justice O'Connor's Reliance on Proximate Causation in the Realm of ESA Liability

In her Babbitt v. Sweet Home concurring opinion, Justice Sandra Day O'Connor qualified the Court's understanding of the "take" definition, noting that the prohibition is subject to "ordinary principles of proximate causation, which introduce notions of foreseeability." (63) Proximate cause serves to limit the ramifications of the "take" prohibition because it is inequitable to assign liability "for every effect that could be causally linked to [an actor's] conduct regardless of how remote, unusual, or unforeseeable the consequence." (64)

Sweet Home tightened the proof of "take" analysis by implementing the tort-like tests of "proximate" and "but-for" causation. (65) According to the Supreme Court, Congress intended to assign ESA liability to foreseeable events--rather than accidental effects on protected species. (66)

Although courts encounter "difficult questions of proximity and degree" when assessing "limitless fact patterns" to determine whether an activity caused the "take" of a species, principles of proximate causation offer a familiar guide for the judiciary. (67) The blurred line of demarcation between punishable and non-punishable "takes" illuminates the daunting issues encountered when proving causation. (68)

In her Sweet Home concurrence, Justice O'Connor expounded upon the majority ruling in two aspects. First, she specified that the "significant habitat modification" prohibition was limited to situations that cause "actual, as opposed to hypothetical or speculative, death or injury to identifiable protected animals." (69) Next, Justice O'Connor criticized the imposition of ESA liability in Palila v Hawaii Dep t of Land and Natural Resources, indicating that the decision lacked the requisite proximate causation analysis. (70) In Palila, plaintiffs alleged that the State violated the ESA when it allowed feral mouflon sheep and goats to graze on seedlings, thereby preventing the growth of essential habitat used by the endangered palila bird. (71) The Ninth Circuit held that the Hawaii state agency violated the ESA by allowing feral sheep to eat seedlings, a resource that might have fed and sheltered the endangered bird once the seedlings were fullygrown. (72) In her analysis of Palila II, Justice O'Connor articulated the flaws in the Ninth Circuit's reasoning, which imposed ESA liability "no matter how long the chain of causality between modification and injury." (73) According to Justice O'Connor, the state agency could not have proximately caused the death of the protected birds by allowing the sheep to consume and ultimately destroy the seedlings, a resource which may or may not have grown into trees and suitable habitat. (74)

The proximate causation standard is contingent upon considerations of fairness, which prevent "imposing liability for remote consequences." (75) Because the concept of proximate causation does not have a precise definition, Justice O'Connor instead illustrated both ends of the spectrum: (76) for example, the element of proximate causation is not satisfied when a farmer's fertilizer is diverted by a tornado and deposited in a wildlife refuge, causing the death or injury of protected species. (77) Conversely, when an individual extracts water from a reservoir on his property and kills an endangered fish, the proximate causation standard is more likely to be satisfied. (78)

Proximate causation acts as a threshold to eliminate the opportunity to assign liability in the context of bizarre situations. (79) More precisely, the standard functions as an equivalent to foreseeability and duty in normal tort cases, particularly because it considers the "natural and probable consequences" of an act. (80)

In ESA liability cases, federal courts determine whether there is sufficient proof to uphold the proximate causation standard by performing "the type of case-by-case analysis prescribed by Sweet Home." (81) Two years after Sweet Home, the district court in Strahan held that the state of Massachusetts had violated the "take" prohibition by allowing commercial fisheries to trawl in endangered right whale habitat. (82)

The First Circuit evaluated scientific evidence indicating that over one-half of the examined right whales bore scars from fishing equipment. (83) The court noted examples of actual entanglement, and though the circumstances of causation were not particularly direct, they were not attenuated to the point of being outside the realm of foreseeability: (84) Entanglement was a foreseeable type of harm of which the agency authorized despite having knowledge that endangered right whales could be caught in the devices. (85)

Even with robust scientific testimony, proving the "take" of an endangered species is difficult when trying to establish chains of causation within complex ecosystems. In Greenpeace Foundation v. Mineta, the plaintiffs alleged that the commercial lobster fishery was causing the "take" of the endangered Hawaiian monk seal. (86) Greenpeace argued that the seal population was dwindling because of low birth rates and shrinking food supplies, primarily as a result of commercial fishing operations. Although the fishery may have modified essential habitat by reducing the prevalence of lobster, Greenpeace did not sufficiently prove that the lobster was "absolutely critical" to the monk seal's diet. (87) Despite using traps, the lobster fishery did not physically harm the seals. (88) This broken link in the chain of causation impeded the court's ability to assign ESA liability. Although important to the seal's diet, the declining lobster population was not enough to prove a violation of the "take" prohibition.

Portraying the dichotomy between direct and indirect "takings," the court in Greenpeace Foundation also examined the commercial bottomfish operation. The court found that this fishing method had accidentally killed several seals. (89) Fishermen had also directly killed additional seals to prevent them from stealing catch from lines. (90) Contrary to the lobster fishery, the court in this instance did not hesitate to find that both the accidental and intentional killings were "takes" in violation of the ESA. (91) This case portrays Justice O'Connor's spectrum of proximate causation in the context of "take" liability. Although entanglement in fishing lines was sufficient to prove causation, establishing the more attenuated chain of causation to establish the "take" of a protected species is more much problematic, such as the allegations against the lobster fishery, even when founded upon scientific data.

The Sweet Home decision subjected the proof of "take" analysis to principles of proximate causation and foreseeability, as seen by the holdings in Strahan and Greenpeace Foundation. Although the standard is not required, a majority of courts consider proximate causation in their reasoning. (92) Courts should continue to employ the common law framework, particularly in ESA liability cases, because incorporating the proximate causation standard functions "to prevent unfairness in attaching liability." (93)

From a liability perspective, proximate cause refers to the reasonably anticipated consequences and intervening forces between an activity and its alleged harm. (94) Considering that as of June 2015 the ESA lists over 2,200 plants and animals as either threatened or endangered, with many more under consideration for listing--proximate causation represents a critical safeguard for judges as they preside over future ESA "take" litigation and the multifaceted chains of causation within these cases. (95)

   Science, and the science of ecology, is not equivalent to truth.
   Rather, science is a specialized language and method that we employ
   to learn about truth (objective reality) and to explain errors
   (arising from non-scientific, objectively false versions of
   reality). (96)

A. The Daubert Trilogy

The task of proving causation is an "inferential process," such that the trier of fact weighs evidence and concludes whether an effect is the result of a particular stimulus.97 The interpretation of scientific evidence complicates issues of causation--whereas the Daubert trilogy dramatically altered the landscape of incorporating expert scientific testimony to establish a sequence of inferences, specifically with regard to questions of admissibility. (98) This article questions whether the Supreme Court's intention was to apply Daubert principles to all scientific disciplines or just those disciplines encountered within the Daubert trilogy. More precisely, perhaps the principles expounded in Daubert should not apply in the same manner across all scientific disciplines, particularly those not rooted in traditional laboratory methodology.

The Daubert trilogy consists of three Supreme Court cases relating to the evidentiary validity and reliability of expert testimony. (99) Each case disputed the issue of causation, though the particular scientific disciplines involved were traditional "hard" sciences (e.g., health sciences, clinical studies, epidemiological studies, toxicology). In the trilogy's seminal case, Daubert v. Merrell Dow Pharmaceuticals, Inc., the Court enumerated a stringent test for the admissibility of scientific evidence. (100) Further, the Court established basic principles to guide trial judges in determining the admissibility of scientific expert testimony pursuant to Rule 702 of the Federal Rules of Evidence. (101) The Court reasoned that trial courts have an obligation to act as a gatekeeper by vetting the relevance and reliability of expert testimony. (102) As an underlying theme in Daubert, the Court recognized the standard that "evidentiary reliability will be based on scientific validity" when courts review the testimony of scientific experts. (103)

According to Daubert, trial judges must ensure that the substance of an expert's testimony is entrenched in "scientific knowledge." (104) To qualify as "scientific," inferences must be derivative of scientific methods and procedures. (105) Conjunctively, the term "knowledge" pertains to more than mere subjective beliefs and unsupported speculation. (106) The Court qualified this interpretation, noting that validity of scientific testimony is not an absolute, because "there are no certainties in science." (107)

Although not a definitive test, Daubert enumerated several considerations to determine whether an expert's testimony is validly rooted in scientific methodology. (108) The Court emphasized the empirical nature of science, such as the use of hypotheses to examine the falsifiability, refutability, and testability of a theory. (109) As an additional indicator of "good science," the Court examined whether the theory has been through the peer-reviewed publication process and subjected to the scrutiny of the scientific community. (110) Nevertheless, scholars have expressed concern with Dauberts "unduly cramped" approach to the philosophy of science. (111) Rather than focusing on whether the expert witness may "assist" a lay person in seeking the truth about their respective scientific discipline-many courts have come to treat the Daubert considerations "not as flexible criteria, but as technical hurdles, tests to be rigorously surmounted." (112)

Courts have traditionally considered Daubert principles in the context of regimented laboratory sciences rather than field sciences. In Daubert, the case focused on an alleged link between a prescription drug and birth defects in children born to mothers' who had ingested the pharmaceutical. (113) Attempting to prove causation, the plaintiffs' experts sought to testify on findings based on animal studies performed in the laboratory. (114) The experts also sought to testify about epidemiological studies and chemical-structure analyses. (115) In general, the science in Daubert focused on laboratory experiments performed in controlled situations with controlled variables. Because the Court derived its considerations within the context of these laboratory studies, it is unclear whether the Court considered the applicability of the considerations in regards to the validity of scientific testimony based on "soft" sciences, such as field studies within the discipline of ecology.

In Daubert, the plaintiffs' sought to prove the alleged link of causation with scientific evidence derived from clinical and laboratory studies. In comparison, ecological field studies are often the focus when attempting to establish causation for violations of the ESA's "take" prohibition. Judges may not recognize the distinctions between the laboratory science in Daubert and ecological research, such as in the Aransas Project and other ESA cases. Field research variables may be difficult to identify, unlike controlled laboratory variables, because random mechanisms and sampling schemes are often encountered in nature. In fact, the scientific method is not precisely the same across all disciplines of science. (116) Because the Daubert ruling focused on the admissibility of scientific testimony in products liability litigation, the Court "did not discuss the relevance of its analysis to the review of regulatory science[s]," such as environmental sciences. (117)

In the dissenting opinion, Chief Justice William Rehnquist emphasized his concern that the majority's decision went beyond the question presented, ruling on an area of law before it was fully developed. (118) Although Daubert principles have encountered widespread acceptance, there are inherent difficulties that arise when referring to the institution of science generically, without any plausible limitations. According to the Chief Justice, the duty of the judiciary is not "to become amateur scientist[s]." (119) He elaborated on this apprehension, "I defer to no one in my confidence in federal judges, but I am at a loss to know what is meant when it is said that the scientific status depends on its 'falsifiability,' and I suspect some of them will be, too." (120)

Scientific knowledge is dynamic, such that it changes as new information becomes available. This is primarily because scientific explanations are based on observations and experiments and consequently can be substantiated by other scientists. (121) Issues with causation are manifest in the realm of expert testimony, particularly when judges must determine the evidentiary reliability of the testimony to assess the cause of ecological injuries. Despite being familiar to experts, concepts of scientific causation and statistical correlation may not resonate with judges. (122) This posits a dilemma when courts must decide whether to assign liability on the merits of scientific data, because "science does not reveal the truth, so much as produce the best available or most likely explanation of natural phenomena, given the information available at the time." (123)

District courts have great discretion in determining the validity of evidence from different scientific disciplines, prompting inconsistencies with how courts handle proof of causation. (124) Judge Alex Kozinski, while presiding on Dauberts remand to the Ninth Circuit, expressed his concern with the task assigned to federal judges with regard to scientific testimony:
   Our responsibility, unless we badly misread the Supreme Court's
   opinion, is to resolve disputes among respected, well-credentialed
   scientists about matters squarely within their expertise, in areas
   where there is no scientific consensus as to what is and what is
   not 'good science,' and occasionally to reject such expert
   testimony because it was not 'derived by the scientific method' ...
   [W]e take a deep breath and proceed with this heady task. (125)

Judge Kozinski's hesitation, though directly referring to the clinical trials in Daubert, is even more concerning in the context of reviewing ecological testimony. This concern is magnified when coupled with the notion that any scientific consensus regarding a given theory is in perpetual fluidity; thus, the fundamental differences among the various scientific disciplines amplify the challenges associated with reconciling science and the law.

Examining the role of science in the courtroom, Justice Stephen Breyer proclaimed, "A judge is not a scientist, and a courtroom is not a scientific laboratory." (126) Although various issues proliferate from this declaration, Justice Breyer's use of the term "laboratory" suggests that controlled experiments within the realm of "hard" sciences were the origin of the Daubert principles, rather than ecological studies and other "soft" sciences.

This distinction is important because "hard" sciences, such as chemistry and toxicology, maintain fundamentally different methodologies and assumptions than those in ecological studies. Specifically, "controlled experiments of chemistry and toxicology provide a different set of challenges for integrating information into law than do the ecological issues associated with conservation biology." (127) According to some scholars, Daubert raised the possibility that conservation biology and other "soft" sciences may be unacceptable as a basis for deciding causation. (128)

Ecologists face complexities and unpredictable natural forces when analyzing causation in the environment. This underscores the significance of using proximate causation in conjunction with judicial reliance on scientific experts, particularly when assigning ESA liability based on ecological testimony. Proximate causation is a necessary restraint when courts apply Daubert principles in their review of ecological testimony within the context of proving violations of the "take" prohibition, primarily because the principles in Daubert may be better suited to evaluate the admissibility of laboratory sciences.

B. Challenges Associated with Proving Ecological Injuries in the Daubert Context

1. "Hard" Science vs. "Soft" Science

Daubert presents challenges when reviewing the reliability of ecological data as scientific evidence. Trial judges are not "supposed to make global judgments about either a discipline or all of an expert's theories," but rather the court should direct its focus on "the task at hand." (129) Instead, as scholars suggest, the "reverberating clang" of Dauberts specifically enumerated considerations have the tendency to "drown[] everything else out." (130) Because Daubert did not consider the applicability of its considerations in the context of non-laboratory sciences like ecology, the differences between "hard" and "soft" sciences underscore the complications presented to courts.

Amplifying the distinction between "hard" and "soft" scientific disciplines are the fundamental challenges that scientists themselves face in proving the cause and effect of an ecological injury. As the Aransas Project litigation illustrates, perhaps courts should approach ecological data with caution, especially with regard to the ESA s "take" prohibition.

Jared Diamond, prominent author and scientist, scrutinized the intrinsic differences between "hard" and "soft" sciences. (131) Representing the minority of scientists who have researched in both "hard" and "soft" scientific disciplines, Diamond offers a unique perspective. According to Diamond, the complex variability of "soft" sciences makes the field of ecology, "one of the softer of the biological sciences" and more difficult to study than "hard" sciences. (132)

"Hard" sciences, such as chemistry and molecular biology, utilize evidence provided by "controlled, repeatable experiments" in the laboratory. (133) Based on well-understood assumptions, "hard" sciences often yield "high[ly] accurate measurements." (134) "Hard" sciences comport to traditional stereotypes, invoking images of science confined to the laboratory, with researchers donned in white coats and holding test tubes. (135)

On the contrary, "soft" sciences, such as ecology and other observational field studies, are theoretically more difficult to research. They "can't be measured to several decimal places in labs," primarily because "the world is full of phenomena that are intellectually challenging." (136) Presumably, courts may also struggle to understand the differences between "hard" and "soft" sciences in the context of ESA cases, particularly when reviewing ecological testimony to establish chains of causation.

The dichotomy between laboratory and field research is evident when scientists examine specific variables within a study. Laboratory research has predetermined sample sizes and known variables, and readily lends itself to scientific hypotheses. In stark contrast, ecological research, generally conducted in nature, challenges researchers: "You can't start it and stop it whenever you choose. You can't control all the variables; perhaps you can't control any variable. You may even find it hard to decide what a variable is." (137)

These differences are often misunderstood by scientists themselves, suggesting that courtroom debate is an inefficient platform to settle this contention. Even statistical models do not fully describe the random mechanisms and sampling schemes encountered in nature. (138) Especially in the Daubert context, testing an ecology hypothesis is challenging because non standard data routinely confronts researchers, as populations rarely follow patterns of normal distribution. (139)

The scientific discipline of ecology accounts for "the relationships between organisms and their past, present, and future environments. These relationships include physiological responses of individuals, structure and dynamics of populations, interactions among species, organization of biological communities, and processing of energy and matter in ecosystems." (140) More precisely, an understanding of ecology allows scientists to comprehend the mosaic of factors that influence a species' interaction with the physical environment. (141) Through observational studies, ecologists can examine situations in which nature is allowed to take its course without interference or laboratory manipulations by the ecologist. Ecology is broader than most other sub-disciplines of biology because it necessarily evaluates the interaction between multiple groups of organisms and various elements of their physical environment. (142)

In comparison, researchers directly control the conditions and variables within experimental studies conducted in the laboratory. (143) Because the predictive nature of science emphasizes the probability of various outcomes rather than absolute certainty, the complexity and risk associated with assigning ESA liability can frustrate the interaction between scientists and courts. (144) Although founded upon "elegant hypothesis construction and testing," otherwise valid scientific research may actually be insufficient "to provide the necessary information and thus, the rational guidance for scientifically sound decision making." (145)

Consequently, the Supreme Court may not have fully considered the complexities of "soft" sciences or field research when they first employed the Daubertprinciples in the context of scientific testimony. Rather than assigning judges with the responsibility of "determining the validity of a scientific theory as a kind of amateur scientist," some scholars advocate for a return to Rule 702's "helpfulness" or "assist" standard in regards to the review of expert testimony. (146) In the context of complex ecological injuries, perhaps it would benefit trial judges to assess these situations under the guidance of established legal principles, such as proximate causation.
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Title Annotation:I. Introduction through IV. Challenges with Using Ecological Research as Scientific Evidence to Prove Causation B. Challenges Associated with Proving Ecological Injuries 1. "Hard" Science vs. "Soft" Science, p. 99-129
Author:Miller, Brett A.
Publication:UCLA Journal of Environmental Law & Policy
Article Type:Author abstract
Date:Jun 22, 2016
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