“An expert is a person who has few new ideas; a beginner is a person with many,” Albert Einstein famously said. Many factors contribute to success in environmental litigation. Perhaps none are more important than the need to effectively use experts. This is particularly true when a party is challenging an action by the Pennsylvania Department of Environmental Protection (“DEP”) before the Environmental Hearing Board (“EHB”).
A recent EHB decision (Friends of Lackawanna v. DEP, EHB Docket No. 2021-066-L, Adjudication dated January 9, 2023) highlights the importance of experts and the repercussions of failing to present expert testimony when litigating before the EHB. In that case, a third-party challenge to a landfill permit was denied largely because the party challenging the issuance of the permit failed to present any expert testimony on many issues and presented inadequate testimony on other issues. The EHB has noted numerous times that cases before it often involve complex, technical, and scientific issues that hinge on expert evidence. The EHB has also stated that while expert testimony is not always necessary, it is often an “uphill battle” to proceed without such testimony.
While the standard for qualification of an expert in Pennsylvania is a fairly liberal one (an expert witness need only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience), it behooves a party seeking to influence most actions (or challenge DEP) to consult and/or retain a well-qualified expert as early in the process as possible. Challenging DEP actions, whether they be permit decisions or enforcement actions, typically involves highly technical issues related to geology, hydrology, engineering, public health, modeling, and many other scientific or economic disciplines.
While some may regard retaining a qualified expert to be somewhat of an extravagance, not hiring one often ultimately leads to pouring money down the litigation drain with nothing to show at the end but a costly legal defeat. A qualified expert can provide many benefits to justify the expense, including:
- Providing expert input prior to a DEP action to influence DEP’s decision, thereby potentially obviating the need for costly litigation;
- Working with the party’s attorney to identify flaws in a DEP action, thereby potentially narrowing and focusing the scope of any legal challenge;
- Assisting a party’s attorney during the discovery process that is part of a legal challenge to a DEP action;
- Convincing the EHB during trial that DEP’s position is technically flawed and not supported by scientific evidence.
The bottom line is that successful environmental litigation usually involves both an experienced environmental attorney and qualified experts. Environmental attorneys at Barley regularly work with experts in multiple disciplines. Clients who interact with DEP should consult with their attorney to discuss whether an expert will be necessary and to identify the right expert for their case. If you have any questions concerning environmental litigation, please contact Martin R. Siegel or any member of Barley Snyder’s Environment & Energy Industry Group.
