Proof and uncertainty in environmental science and law

Source abstract

Abstract The article explores how courts have addressed issues of scientific uncertainty in claims involving diffuse environmental pollution or climate damages. It explores the approaches adopted by courts to seek to achieve a just outcome in the face of such evidential uncertainty in three jurisdictions, the United Kingdom, New Zealand, and Kenya. While science often communicates findings with varying degrees of confidence, the law requires definitive conclusions to make findings of liability. The article explores different approaches that courts have adopted to address this uncertainty. The United Kingdom and New Zealand offer examples of courts creatively interpreting and developing the common law, relying on precedent and taking inspiration from similar jurisprudential developments in other jurisdictions to bridge gaps left by inconclusive scientific evidence. In contrast, Kenya’s legal system, shaped by its 2010 Constitution, offers an example of a legal system where the gradual codification of principles like the precautionary principle provides direction to courts in their decision making. The article concludes that courts adopt a range of different approaches to exercise judgement fairly and consistently where scientific uncertainty may make the rules of evidence less workable or create imbalances between the parties. It argues that courts play a critical role in adapting legal standards to evolving scientific and societal realities.