Type: Law Bulletins
Date: 06/07/2011

Using Aerial Photography to Win Environmental Cases

Most environmental lawyers and consultants are first introduced to aerial photographs when reviewing Phase I Environmental Site Assessments (ESA) prepared in accordance with ASTM E-1527-05.  However, the use of aerial imagery in Phase I ESA reports to determine historical site conditions barely scratches the surface of the effective use of aerial photography. 

Aerial photography, also referred to as aerial imagery (as a component of remote sensing), is a potent tool for environmental trial lawyers.  Databases of aerial photographs from 1938 are readily available through aerial photography clearinghouses.  The photos are usually taken with a high resolution camera using overlapping images.  The overlapping images are called “stereo pairs” and when viewed as “diapositives” through a stereoscope on a light table produce a three dimensional image of the surface features: buildings, drainage patterns, ravines, containers, tanks, vehicles, mounds, etc.  Vertical and horizontal surface features can be measured, depending on the quality of the photographs.  Aerial photography interpretation can be used in conjunction with geographic information systems (GIS) to develop trial exhibits recreating site conditions at the time of important historic environmental events.

Accurate aerial photography interpretation is a critical component of environmental forensics.  The stereo pairs should be interpreted by a seasoned imagery analyst trained in environmental remote sensing.  Many analysts are former employees of the military or the U.S. government.  Finding a qualified environmental imagery analyst is difficult, because the telltale signs or marks on the aerial photographs of ground level activity, referred to as “signatures,” are different for 55 gallon drums or former burial pits than, for example, intermediate range ballistic missiles.  Stereo pairs are usually shot by aircraft when cloud and vegetative cover are at a minimum (excepting aerial imagery by agencies analyzing crop growth).  Some aerial photos are taken using cameras that detect ranges of the electromagnetic spectrum not visible to the human eye, such as infrared signatures.  The detail can be stunning: some aerial images permit identification of features as small as six inches, and in some cases permit license numbers to be read on vehicles when taken from low-altitude oblique angles. 

Collecting and analyzing the historical library of aerial imagery is not a task for most environmental consultants.  Specialists can call upon not only the more widely used public sources of aerial photographs, but also upon databases of lesser-known aerial photography companies that operate on a regional basis.  Because of the incredible detail and information that can be extracted from stereo positives viewed through a stereoscope on a light table (a table that projects diffuse light from underneath the positive images into the stereoscope), it is usually a mistake to order “prints” from the public resources offering to sell historical aerial photos. 

 To say that aerial photography can be a game changer in environmental cases is an understatement: in one case handled by this firm, the historical aerial photographs showed trucks tipped to dump waste into a ravine…a fact denied by the prior owner of the real property.1   The case settled shortly after sharing these photos with the responsible party.

Juries are intrigued and persuaded by visual and scientific evidence…sometimes known as the “CSI effect.”2   This law firm has used the testimony of experts interpreting environmental signatures on historic aerial photographs.3   The impact on jurors (and judges)4 can be profound.  Environmental attorneys and consultants not trained in aerial photography signature interpretation can miss important clues about past uses of the property.5   The photographs can also be used during, or after, witness interviews to test the accuracy of a person’s memory.  Of course, aerial photographs provide an excellent means of impeaching the credibility of opposing witnesses who testify with professed certainty about different historic site features.

For more information about the effective use of aerial photographs in environmental cases, please contact Kim Burke or any member of the Taft Environmental Practice Group.

1Burke, Kim K., The Use of Experts in Environmental Litigation: A Practitioner’s Guide, 25 N.Ky.Law Rev. 111 (1997).
2Lawson, Tamara F., Before The Verdict and Beyond the Verdict: The CSI Infection Within Modern Criminal Jury Trials, 41 Loy.U.Chi.L.J. 119 (Fall 2009).
3Stout, Kristen K. and Hickerson, Glen H., Environmental Research, Inc., The Use of Aerial Photography to Determine Contamination Events at Agricultural Chemical Facilities, Proceedings before the American Academy of Forensic Sciences, Colorado Springs, CO (Feb. 2003).
4Nutrasweet Company v. X-L Engineering Company, 227 F.3d 776, 788 (7th Cir. 2000)(expert testimony interpreting aerial photographs admissible to show history of site contamination).
5Burke, Kim K., 1999 Annual Meeting, American Academy of Forensic Sciences: Experts and Attorneys in Environmental Litigation: Avoiding Common Mistakes, Coronado Springs Resort, Orlando, FL.

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