Environmental Gatekeepers: Natural Resource Trustee Assessments and Frivolous Daubert Challenges

• Date: 01 May 2019

49 ELR 10420 ENVIRONMENTAL LAW REPORTER 5-2019

COMMENTS

Environmental Gatekeepers: Natural

Resource Trustee Assessments and

Frivolous Daubert Challenges

by Allan Kanner

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

I. The Natural Resource Trustee

In natural resource da mage (NRD) cases of any complex-

ity, federal, state, or tribal t rustees are re sponsible for using

science in assessing injuries and determining appropriate

remedies based on the best available evidence for a spe-

ci c incident at a speci c site.1 Because natural and man-

made disasters are c omplex events, they require a pa rticular

skill set to ensure that the resulting assessment is handled

responsibly, e ciently, and e ectively.  e U.S. Congress,

under the Comprehensive Environmental Response, Com-

pensation, and Liability Act (CERCLA) a nd the Oil Pollu-

tion Act (OPA),2 expressly delegated such responsibility to

various natural resource trustees, generally state and fed-

eral environmental agencies.

Following a disaster such as an oil spil l, it is the respon-

sibility of the trustees to ma ke hard choices based not only

on science, but also law and policy. Having been legisla-

tively delegated the responsibility to assess a nd make these

complex choice s, they should not be ea sily second-gues sed.

Trustees are often challenged under traditional trial evi-

dence standards; however, given their unique congressio-

nally delegated position, the better challenge would be

under an “abuse of discretion” standard. Judges are not

equipped to be arbiters of trustee science as is required by

traditional evidence ru les. Trustees and their science are as

unique as the natural disasters they work to remedy, and

therefore warrant treatment commensurate with such leg-

islative delegation.

1. See Allan Kanner, Natural Resource Restoration, 28 T. E. L.J. 355

(2015). Simple restorations may be handled under Type A procedures,

which are “standard procedures for simpli ed assessments requiring mini-

mal  eld observation.” 43 C.F.R. §11.14(ss).

2. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405; 33 U.S.C.

§§2701-2761, ELR S. OPA §§1001-7001.

For example, in the OPA, Congress provided for the

designation of federal, state, Indian tribe, and foreign

trustees by the president, governors, and governing bod-

ies, respect ively.3  e Act notes that “[t]he president, or the

authorized representative of any State, Indian tribe, or for-

eign government, shall act on behalf of the public, Indian

tribe, or foreign country as tru stee of natural resources to

present a claim for and to recover damages to the natural

resources.”4 Each t ruste e is requ ired to “ develop and imple -

ment a plan for the restoration, rehabilitation, replacement,

or acquisition of the equivalent, of the natural resources

under their trusteeship.”5 Importantly, restoration, not

rec overy o f moneta ry da mage s, is t he ulti mate g oal of m ost

environmental statutes.

Because an environmental disaster impacts complicated

ecosystems, it requires complex assessment and a

restoration plan that contemplates not only economic

impacts, but also ecological and proximate consequences,

as well as the appropriate application of laws, regu lations,

and policy.  ese c onsiderations coa lesce in the natural

resource damage assessment (NRDA), which is designed

to take stock of, create a restoration plan for, and

ultimately value the damages to the natural resources at

issue.6 Trustees are charged with determini ng baseline

conditions, the best path toward restoring the resources to

that baseline, and, in some cases, va luing the destruction

and creating compensatory restoration plans in the event

that the resources cannot be restored to such a baseline.7

 e regulations that accompany environmental statutes

o er guidance and provide methods by which to achieve

habitat-to-habitat restoration.8

Under the OPA, the trustee is charged with assess-

ing the environmental dama ges, including the cost of

restoring, rehabilitating, or replacing the resource; the

3. 33 U.S.C. §2706(b).

4. Id. §2706(b)(1).

5. Id. §2706(c).

6. Id. §2706(b)-(g).

7. Id.

8. See, e.g., 15 C.F.R. §990.53.

Author’s Note:  e views expressed herein are those of the author and

do not re ect the views of the  rm’s clients.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.