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Environmental Gatekeepers: Natural Resource Trustee Assessments and Frivolous Daubert Challenges

May 2019

Citation: 49 ELR 10420

Issue: 5

Author: Allan Kanner

Environmental disasters wreak havoc on ecosystems and public trust resources. The environmental statutory regime in place today aims to remedy these disasters and restore the public trust as efficiently as possible. In order to do so, natural resource trustees, agencies made up of experts in their respective scientific fields, have been given broad authority to assess injuries to natural resources, choose an appropriate remedy, and develop restoration plans. Environmental statutes such as the Oil Pollution Act and Comprehensive Environmental Response, Compensation, and Liability Act have extensive provisions and congressional commentary that indicate that many features encourage expedited restoration, including joint and several liability, separate contribution proceedings, and, importantly, the rebuttable presumption. This Comment asserts that Daubert-type evidentiary challenges to trustee findings are inappropriate as they second-guess the extensive time and effort put into complying with such provisions. Rather, it argues the proper standard is review of trustee action in the fiduciary context. If a trustee’s actions have been arbitrary and capricious, it is reasonable for a court to find that it has abused its discretion. However, a court is not equipped to comprehensively evaluate trustee findings, a unique mix of law, policy, and science, under traditional evidence rules. It exceeds the authority of the judiciary and undermines the purpose of the environmental statutes themselves.

Allan Kanner is the founding member of Kanner & Whiteley, LLC.

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