Tracy
K. Bowles, 2L
Stephanie Showalter, J.D., M.S.E.L.
Introduction
Remote sensing technology is gaining popularity in the courtroom
as a tool for establishing causation and even guilt. Remote
sensing is the process of using instruments to observe and
record information from a distance, allowing detailed observation
and monitoring from the Earths core out through the
atmosphere. This technology enhances vision so that objects,
areas, or activities can be seen from afar using
instruments such as cameras, telescopes, satellites, ocean
buoys, RADAR, and Global Positioning Systems (GPS).
Aerial photographs and satellites, used for image and data
collection, are the oldest and most well-known remote sensing
devices. Ever since the first cameras were invented 150 years
ago, people have been creating images of the earth from afar.
The use of satellites to view the Earth stems from the earliest
days of the space program. Some satellites carry sensors that
collect data passively, by recording radiation that is being
radiated or reflected off the Earths surface or atmosphere.
Other satellites collect data actively, by emitting radiation
and then recording what is reflected back from the Earths
surface or atmosphere. Earth-observing satellites can carry
sensors, which are capable of recording wavelengths across
the entire electromagnetic spectrum, from infrared to visible
radiation. Airplanes also carry sensors, such as Side-Looking
Airborne Radar, which is used by the U.S. Geological Survey
to map geologic features, explore for mineral and energy reserves,
and identify potential environmental hazards. Once the data
has undergone initial processing techniques, it can be used
for various purposes, from the simple production of an enhanced
image to the more complex creation of spatial databases. The
data may also be used to develop statistical observations
and graphs. Geographic Informa-tion Systems (GIS), computer
systems capable of assembling, storing, manipulating, and
displaying geographically referenced information, are an effective
method for analyzing the remote sensing data with reference
to other spatial data.
Remote sensing is not new in the environmental field. Aerial
photographs are used routinely for baseline environmental
studies to determine historical land use and to guide sampling
and site characterization. Additionally, aerial infrared images
have been used by the Army Corps of Engineers in wetlands
permitting enforcement actions. The U.S. Environmental Protection
Agency (EPA) conducts satellite and aerial remote sensing
to support the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), the Resource Conservation and
Recovery Act, and other EPA regulatory programs and investigations.
Images from these projects can stand alone or be used in conjunction
with topographic maps, digital data, and other features stored
in GIS databases. Remote sensing technology can also be used
to monitor oceans, manage coral reefs, monitor pollution and
oil spills, track effluent discharges, and analyze short-term
and long-term fish habitat. Remote sensing technologies are
capable of measuring sea level, wave height, surface wind
speed and temperature, as well as locating ocean floor features.
Evidentiary Challenges
It is important to note that litigators seeking to use remote
sensing data in the courtroom will encounter evidentiary challenges.
The technology is still quite new and many courts are still
unsure of how to categorize remote sensing evidence. Despite
the confusion, most of the data obtained with remote sensing
technologies can be admitted into evidence under Federal Rule
of Evidence 702, which allows the admission of scientific
testimony, if such knowledge will assist the trier of fact.
Scientific data and knowledge, however, cannot be admitted
into evidence unless the court determines that it is relevant
and reliable.1 Generally these requirements will be
satisfied if the data can be authenticated. The ability to
groundtruth, the act of verifying the remotely
sensed data by collecting on the ground data at the particular
site, improves the evidences chance of being accepted
by a court of law. Although they do exist, the evidentiary
challenges are minor and do not differ greatly from those
encountered with other types of scientific and technical evidence.
Remotely sensed data and imagery can also potentially be admitted
as demonstrative evidence under Rule 1006 of the Federal Rules
of Evidence or possibly as Business Records under Rule 803(6).
Remote Sensing in Action
In St. Martin v. Mobil,2 the owners of a freshwater
marsh sued Mobil for damage caused to their land. Mobil operated
canals through the St. Martins' property, which caused damage
to marshland because Mobil failed to properly maintain spoil
banks on their canals. The Fifth Circuit affirmed the district
courts award of damages to the St. Martins. The landowner
introduced aerial photographs of the open ponds produced by
the oil companys failure to maintain spoil banks. The
open ponds eroded the St. Martins marsh property, proven
by a series of aerial photographs that showed the progression
of the deterioration of the marsh and interpreted testimony
of experts from both sides. These aerial photos, combined
with expert testimony, led the court to conclude that Mobil
was responsible for the degradation to the marshland.
In NutraSweet v. X-L Engineering,3 NutraSweet sued
to recover the costs of cleaning up hazardous waste improperly
disposed of by X-L Engineering. NutraSweet introduced into
evidence aerial photographs which showed a history of X-Ls
hazardous dumping. The aerial photos, interpreted by an expert
witness, confirmed that volatile organic compounds were dumped
onto X-Ls land and then migrated through the groundwater
onto NutraSweets land. NutraSweets expert witness,
an environmental scientist, testified that the hazardous waste
found on NutraSweets land was the same as that dumped
by X-L. In support of this testimony, NutraSweets expert
witness used the aerial photographs. The Seventh Circuit held
X-L Engineering liable for violations under CERCLA.
ENDNOTES
1. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 590 (1993).
2. St. Martin v. Mobil Exploration & Producing U.S. Inc.,
224 F.3d 402 (5th Cir.
2000).
3. NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776 (7th
Cir. 2000).