A conversation with Andrew Jackson on the use of satellite and aerial imagery in environmental disputes
Hi Andrew, could you tell me a bit about the work you do?
Andrew Jackson: I'm a lecturer in environmental and planning law at University College Dublin (UCD) in Ireland, and a practising public interest lawyer. Before I joined UCD I worked as in-house lawyer for An Taisce (the National Trust for Ireland) and with Friends of the Irish Environment, two environmental NGOs. Before moving to Ireland in 2007 I worked as a lawyer for the UK government’s Department for Environment (Defra), and before that for a law firm in London called Slaughter and May.
When and how did you decide to start using satellite/aerial imagery in support of your environmental law work? What are the challenges in acquiring imagery to support your work?
Andrew: I've used satellite imagery in my work since it became widely accessible for free via mapping websites - it's very useful in various ways; e.g. looking at the potential impacts of various plans and projects on protected nature conservation areas. My first experience with collecting aerial images from a small aircraft was in 2012, and I've been convinced of the value of this for public interest environmental work since then.
Often environmental disputes turn - legally - on when the damage in question happened. If it happened or commenced too long ago, then an enforcement action might be time barred. Satellite imagery and aerial photography can be very useful to prove (or disprove) when environmental damage happened or commenced; it can also be used to show environmental change over time; and it can be a useful way to document damage in circumstances where visiting a site in person could be very difficult or even dangerous.
In the case of aerial images, the challenges in acquiring images mainly revolve around cost. For example, if I want to hire a small 4-seater aircraft with a pilot, in Ireland this would cost around EUR 300 (US $370) per hour all-in, which is a cost (and time) effective way to document damage if you take the photos yourself. But this will quickly add up once you start documenting numerous examples of environmental damage. There’s also the arguable incongruity of using a plane to document environmental damage – even if this is more environmentally efficient that driving around the country in a car.
An alternative to hiring a small plane would be to acquire - or use the services of the operator of - an unmanned aircraft ("drone") with the ability to record images. The aerial images produced can be excellent, and can be in 3D (allowing you to evidence volumes of material extracted over time, for example), but there are various issues to consider with drones, such as:
- Licensing - is the operator licensed? Do you need a licence if you're planning to operate one yourself?
- Cost - it could cost several thousand euro to acquire the necessary kit and software, and it might be more cost-effective to hire a small aircraft than to incur this cost or pay the operator of an unmanned craft.
- Security - if the unmanned aircraft needs to take off and land from near the site of the environmental damage, there's always the risk that the people doing the damage could follow the craft back to you/the operator.
- Flexibility - when travelling over sites in a small aircraft it's possible to divert off course to photograph something which catches your eye; an unmanned aircraft likely won't offer the same degree of flexibility.
Accessing historical aerial photography is another challenge. For example, in 1973 the first comprehensive aerial photographic survey of Ireland was completed, comprising 6,484 black and white photographs in total. Ireland's national mapping agency - Ordnance Survey Ireland (OSI) - holds a monopoly over providing copies of these images to the public, but at a cost (they are not available online).
A few years ago I wanted to obtain a complete set of these 1973 photos to defeat developers' claims that a given damaging activity (say quarrying or peat extraction) has been ongoing since before October 1964, when Ireland's first planning laws came into force. That is, if I could point to a photo showing that there was no quarry in a particular field in 1973, then clearly the quarry couldn't have been operating there since before 1964. But OSI charges the public EUR 200 (US $250) for a single electronic photo from the survey, which would make the cost of acquiring a full set (undiscounted) almost EUR 1.3 million (US $1.6 million)! So I made a request to obtain access to the photos at a reasonable cost under Ireland's access to environmental information rules.
OSI first claimed that the access rules didn't apply, then tried to propose a 5-year licence fee which ran to tens of thousands of euro. I appealed to Ireland's Commissioner for Environmental Information and, to cut a long story short, the OSI finally granted free access to certain NGOs to any electronic image from the 1973 survey, and they then charge a small annual licence fee (about US $100) to use any images publicly, plus an additional small fee for certifying an image for use in court. But it took a long time to get to this position, and the EUR 200 per image charge still unfortunately applies to members of the general public, because the Commissioner for Environmental Information maintains that they cannot vindicate rights for the general public and can only address the dispute on the facts before them.
Obtaining satellite images can prove a costly business. While you can of course take a free screen grab from various mapping websites, this could be in breach of copyright (depending on what you plan to do with the image), and may not be acceptable as evidence before a court - more below. Once you move away from this and go down the route of seeking to obtain images from the satellite companies themselves, there are (at least) three challenges:
First, there's a knowledge/expertise gap - that is, without being an expert it's hard to know the full range of satellite data providers, and then how to go about sourcing and obtaining individual images.
Second, there's the cost issue - obtaining even one or two images might cost several hundred or even several thousand euro.
Third, there's the certification issue - even if I can afford to obtain one or more images from a satellite company, will they certify the image(s) for use in court (in terms of origin, location, date, area, etc.)? If not, who will?
How can satellite imagery support litigation, particularly related to illegal activities that impact the environment? What are the challenges of using imagery in courts?
Andrew: The free availability of high resolution satellite data is incredible nowadays - e.g. think of Google Earth or Apple Maps, to name but two. While these images can be very helpful in terms of policy advocacy, and could in principle be hugely useful in support of litigation (e.g. in proving that damage happened before/after a particular date), producing such images successfully in court might prove difficult.
For example, the laws on digital evidence in any given country might make it very hard or even impossible for you simply to turn up in court with a screen grab from Google Earth as your evidence (setting to one side any copyright issues): could you prove the accuracy of the metadata, the date of the image, its precise location, the area of land or water covered, or the fact that the image has not been altered in some way? While you could just take a chance and seek to rely on such a screen grab, if the opposing side objects you could find your meticulously prepared case being thrown out for not reaching the required standard of evidential proof.
But if you rule out relying on free screen grabs, then you're inevitably back in the territory of seeking to obtain images from satellite companies, and this will likely raise (at least) the three issues I identified in answering the question immediately above: i.e. expertise, cost, and certification.
How do you overcome these challenges?
Andrew: To be honest, I am not yet sure how precisely to overcome these challenges. Much will depend on the local context: i.e. what do the courts in a given jurisdiction accept by way of evidence? I know that there are two potential cost barriers: the cost of obtaining images, and the cost of paying a service provider (if you can find one) to source images and certify them appropriately for use in court. The mission is to minimise each of these barriers. At the moment there may be more scope for reducing the second cost than the first: that is, it might be possible (depending again on the local context) to explore the possibility of legal/satellite experts providing their services in the context of litigation on a 'no win no fee' basis, whereby the cost of their services only becomes payable if a case is successful and costs are recovered by the public interest litigant. This would require the service provider to have an appetite for financial risk, as well as the expertise, time and inclination to assess the merits of a particular case and the likelihood of recovering costs, but that is do-able. Some lawyers are willing to take cases on this sort of basis.
What advice would you give to organizations looking to use imagery as a tool in their work, but don’t know where to start?
Andrew: Aerial photography from a small aircraft or using an unmanned aircraft need not be prohibitively expensive: look into the costs in your country - you might be pleasantly surprised! Regarding satellite data, get in touch with experts who are on your side. And check the laws of evidence in your country - don't risk losing a good case by producing evidence that is destined to be thrown out by a court.
What changes do you anticipate in the future of “satellite imagery for good”?
Andrew: At the risk of this sounding like a plug (I have no connection to this company), I am excited by the recent establishment in London (UK) of the world's first "space detective agency", Air & Space Evidence Ltd (http://www.space-evidence.net/). The company has been set up by satellite and legal experts and is aiming to address many of the problems/gaps I've identified above. They are particularly interested in environmental work. Having been in contact with them, I know that they are able to source and price satellite images of precise areas of land, for particular dates, from a range of suppliers - interestingly, the costs of such images vary enormously from provider to provider. The company is also very well placed to offer advice and assistance on certification and production of such evidence in court. One of the company's founders - Ray Purdy, ex of UCL in London - was the co-editor (with Denise Leung) of the collection "Evidence from Earth Observation Satellites. Emerging Legal Issues" (December 2012, Brill / Martinus Nijhoff), so they certainly have a strong pedigree in this field.
I'm also hopeful that market forces will operate to meet the clear demand that exists for reasonably priced (i.e. cheap or even free!) satellite images for use in support of public interest environmental work. In this regard I’m very interested in the progress of companies (e.g. Planet Labs) which have been launching batches of small satellites, “which will provide the highest cadence imagery of Planet Earth ever collected—everywhere, every day, on demand, at an affordable price.” You can read more about these ongoing efforts here. A democratisation of satellite data in this way would be a huge leap forward.