Environmental Evidence

Authors

Seema Kakade

Abstract

The voices of impacted people are some of the most important when trying to make improvements to social justice in a variety of contexts, including criminal policing, housing, and health care. After all, the people with on-the-ground experience know what is likely to truly effectuate change in their community, and what is not. Yet, such lived experience is also often significantly lacking and undermined in law and policy. People with lived experience tend to be seen as both community experts with valuable knowledge, as well as nonexperts with little valuable knowledge. This Article explores the lived experience with pollution as evidence in administrative and civil judicial cases involving pollution permits. In doing so, it makes three contributions to the literature. First, it articulates a vision for thinking about evidence in pollution permit cases that is not solely focused on conventional “scientific” evidence, but also includes what this Article calls “community” evidence. Community evidence is the range of tools accessible to local communities that document the reality of their experience with pollution, such as lay witness testimony, photos and videos, demographic data, and citizen science. Second, it identifies key challenges with using community evidence in pollution permit cases in both the administrative and judicial contexts. Some cases encounter evidentiary challenges regarding relevancy, reliability, and scope, and others face more practical challenges such as lack of funding and understanding of the legal system. Third, it advocates for increased use of community evidence, in conjunction with conventional scientific evidence, as a mechanism to uplift the influence of the lived experience in pollution permit cases. Suggestions for how to do so include paying local community members for their expertise, proactively discussing community evidence in briefs and case opinions, and creating rebuttable presumptions for certain kinds of community evidence. The goal is to validate community evidence as a source of knowledge and truth worthy of consideration.

Recommended Citation

Seema Kakade, Environmental Evidence, 94 U. Colo. L. Rev. 757 (2023).
Available at: https://scholar.law.colorado.edu/lawreview/vol94/iss3/5