Thoughts About the Evidentiary Value of Science in Environmental Litigations

Reading David Hunter et. al.’s Book on International Environmental Law and Policy (Foundation Press, 3rd Edition, 2007) one legal question drew my interest: Do you think that the increased certainty of the IPCC (Intergovernmental Panel on Climate Change) regarding the human causation of climate change would be sufficient to satisfy the causation element in a lawsuit?

The question is relevant in that it asks lawyers and law students alike on how we can actually use findings of scientific research in concrete cases. It forces us to think about the linkage of hard sciences and the law in environmental advocacy.

Hunter's question presupposes that a court has already taken cognizance of a case (most likely a tort case or an injunction case relating to an environmental concern). Stated otherwise, the question directs our attention to the evidentiary value of findings of scientists and experts all over the world in a concrete court setting.

Relevant to this question is the definition of the Philippine Supreme Court of causation element for purposes of recovering damages (in tort cases, and maybe injunction suit to a limited extent):

“Proximate cause is that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury and without which the result would not have occurred.” (Sabena Belgian Airlines vs. Court of Appeals G.R. No. 104685. March 14, 1996)

A more incisive explanation is found in another case:
“(T)he proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and Continuous chain of events, each having a close causal Connection with its immediate predecessor, the final event in the chain immediately affecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent, and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.” (Vda. de Bataclan vs. Medina, 102 Phil. 181,186)

How do you prove causation or proximate causation in order to maintain a suit? Rule 128 of the Rules of Court provides:
Section 3. Admissibility of evidence. -- Evidence is admissible when it is relevant to the issue and is not excluded by the law of these rules.

From this, it is plausible to argue that reports such as the IPCC Report on human causation of climate change, may be appreciated as relevant evidence in a concrete case. A possible objection may be based on the rule on hearsay. However, the Rules of Court itself allows a possible exception from the hearsay rule as it may be characterized as learned treatise on the subject.

Rule 140, Section 46 provides:
Section 46. Learned treatises. -- A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a)

The Rules and its application however, should not be viewed in a vacuum. The Judge or the Justice who interprets them plays a crucial role in the application of the Rules. Oposa vs. Factoran shocked the Philippine legal community when the Supreme Court hinted that a cause of action may arise from the broad principles outlined under Article II of the 1987 Constitution.

That Judges and Justices have a great role to play in their respective jurisdictions in enforcement of environmental legislation. As final arbiters of what the law means, they have the final say on the binding effect of the law and where necessary, they can compel performance of duties outlined in the law.

Policy advocates should target the Judiciary as potential partners for the advocacy. In my view, the shock triggered but Supreme Court decisions in favor of pressing environmental concerns is indicative of the ignorance or lack of knowledge of the grave consequences of prolonged disregard for the environment. Training programs or seminars for Members of the Judiciary is crucial in generating environmental consciousness and awareness that could pose positive results for the environmental movement.

This is not to undermine the role of the implementing agencies. After all, the contemporaneous construction of these agencies of environmental legislation has been respected by our courts. The doctrine of contemporaneous construction after all, finds solid support from jurisprudence here and in the United States to the effect that "findings of administrative agencies who are recognized experts in their field, when supported by substantial evidence shall not be disturbed by the courts."