Expert Opinions In Environmental Litigation – Practical Considerations
David G. Ries, Thorp Reed & Armstrong, LLP, Pittsburgh, PA 

Natural Resource Damages (NRD) Update
Gail H. Allyn, Pitney Hardin LLP, Morristown, NJ 

Expert Opinions In Environmental Litigation – Practical Considerations

David G. Ries, Esq., Thorp Reed & Armstrong, LLP, One Oxford Centre, 301 Grant Street, 14^th Floor, Pittsburgh, PA  15219, Tel:  412-394-7787, Fax:  412-394-2555, Email:  dries@thorpreed.com

Environmental litigation almost always involves scientific issues and expert opinions, often with multiple experts in different disciplines.  In 1993, the United States Supreme Court issued its landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which the Supreme Court established (1) a gatekeeping requirement under which federal courts must screen expert opinions for reliability and exclude “junk science,” and (2) a new, more flexible test to be used in this process.  These standards have now become better defined through their application by courts for over ten years and by amendments to the Federal Rules of Evidence. While admissibility of expert opinions is primarily the responsibility of attorneys, it is important for environmental professionals to understand the issues, both to assist attorneys and to take them into consideration in projects which may later result in litigation.  This presentation will explore some of the practical considerations for environmental professionals in performing work for litigation or services which might later be the subject of litigation.  It will include such areas as (1) when experts may rely on the work of others, like field investigation, lab analysis and modeling, (2) opinions based on experience rather than on published standards, and (3) the more rigorous analysis, beyond usual environmental protection standards, which is often required for litigation.

Natural Resource Damages (NRD) Update

Gail H. Allyn, Esq., Partner – Environmental Practice Group, Pitney Hardin LLP, P.O. Box 1945, Morristown, NJ  07962-1945, Tel: 973-966-8048, Fax: 973-966-1550
Email:  gallyn@pitneyhardin.com

For many years, the federal and state governments have had the legal authority to seek payment for damage to natural resources from parties who are responsible for environmental contamination.  This was often an element of enforcement actions and settlements resulting from large oil spills and other headline events, but less frequently required in more routine remediation cases.  More often, the governmental agencies would defer any claims for natural resource damages when approving site cleanups, while at the same time reserving their rights to bring such claims in the future.

Now there is renewed focus on natural resource damages, both on the federal and state level.  For example, the state of New Jersey has initiated an ambitious program to make the assessment and collection of natural resource damages a part of every site cleanup.  “No further action letters” giving final approval to cleanups will not be issued until a party’s responsibility for natural resource damages is resolved.  In addition to individual sites, New Jersey also is focusing on entire watershed areas.  In 2003, New Jersey issued a directive to 66 companies connected to 18 sites along the lower Passaic River in northern New Jersey, requiring them to arrange for an assessment and interim restoration of the river ecosystem.  Other states are watching with interest the development of New Jersey’s program, to decide what actions to take in their own jurisdictions.

The evaluation of natural resource damages, especially in complex watershed systems, presents many challenging technical and legal issues.  These include the overlapping authorities of federal and state trustees, the problem of quantifying the value of the resource that has been lost, and the issue of what is fair compensation or resource substitution.  This presentation will discuss some of the issues that any party faced with a natural resource damage claim must be prepared to address, using examples from recent cases in New Jersey and elsewhere.

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