Avoid These Evidence Issues in Environmental LitigationJuly 14, 2015 – Articles New Jersey Law Journal
Experience is a cruel teacher, and I write this article in the hope that others will be spared some of the evidence problems I have faced. Environmental trial practice is unique because of the incredible breadth of environmental laws, as well as the great variety of disputes. Environmental law is an amalgamation of federal and state common law, with a number of statutory structures (federal and state) adding to the mix.
To add to the complexity, environmental law covers a number of areas, ranging from coastal zone management (CZMA), storm water discharge (CWA and SWD), hazardous waste remediation (Spill Act and CERCLA), air pollution (CAA), chemical process (TSCA), preventing manufacturing from contaminating (RCRA), landfill design and operation (SWDA), protection of endangered and threatened species (ESA)—and this list does not cover dozens of other areas such as nanotechnology, farm run-off, lead paint pollution, asbestos, nuisance, trespass, second-hand smoke, pesticide application, underground storage tanks (USTs), etc.
Environmental Hearings: Forum Dictates the Rules
Environmental challenges are heard in local municipal courts, state and federal administrative proceedings, agency hearings and, of course, federal court. Each forum may have different evidential rules. Jurisdiction is important to consider because many state laws are, in fact, the result of delegation by the United States Environmental Protection Agency (USEPA) to the New Jersey Department of Environmental Protection (NJDEP)—but both the rules of civil procedure and the rules of evidence vary depending upon which forum is hearing the dispute.
A prime example of this is in the area of expert witnesses. Environmental law hearings often require expert testimony to explain the reams of data underlying the dispute in question. Be careful, because the state rules of evidence as to who qualifies as an expert, and what satisfies the criteria of an adequate methodology, are far more lenient than those in federal court. In practice, nearly any individual with adequate experience or education will be permitted to testify in state court even if there are questions about their data or methodology. Federal courts are far more restrictive as a result of the Iqbal, 556 U.S. 662 (2009), and Twombly, 550 U.S. 544 (2007), decisions. A simple recommendation is to chose an expert and require an expert report that satisfies the more stringent federal standard—that way, if the matter gets removed to federal court, you are assured of having that expert testify regarding his or her opinions.
Administrative Hearings: Preserve the Record
Administrative proceedings have far more flexible standards than either state or federal court proceedings. Because they are relatively informal and the hearing officer has great latitude in admitting evidence, many lawyers fail to object fully to the admission of evidence that would not be admitted in state court or the even more strict federal courts. This is a mistake—always protect the record. In the event of an adverse ruling from the administrative tribunal, your client may wish to appeal and the court to which you appeal will carefully study the hearing transcript. If you failed to state clearly the basis for your objection, you may be stuck with inadmissible evidence harmful to your position.
Common Evidence Issues in Environmental Disputes
Environmental litigation often requires evidence regarding one or more of the following: 1) historic records to prove a change in real property over time; 2) huge volumes of environmental data prepared by multiple people, which is nearly incomprehensible; 3) corporate environmental and compliance records; and, among others, 4) governmental reports and records. How do we get these things into evidence?
How to authenticate? The first place to look is NJRE 902/FRE 902, which indicate those documents that are self-authenticating. Be warned—Rule 902 is where I have seen most evidence problems arise with regard to government records, historic records, foreign documents and business records. For a public document to be self-authenticating, it has to bear the signature of an officer of the state or relevant governmental entity. Other records require a seal. (Note, getting a sealed public document can take weeks or months, so plan well ahead of trial.) Some public records require that they be certified—meaning that there has to be an attached certification that the record was the document actually prepared or required. These small points may seem picayune, but they are often the difference between being able to have a document self-authenticated or having the court determine that they are incompetent evidence and will not be admitted.
Two common errors in providing summaries are: 1) not making the originals available for inspection by your opponent; and 2) failing to inquire of the court whether the judge wants the originals available in the courtroom at the time of trial. From an advocacy perspective, the biggest issue is how to make this data come alive. The simplest solution? Remember that a picture is worth a thousand words—perhaps a few million words in the environmental litigation context. Create powerful but accurate graphics that demonstrate both your presentation and interpretation of the data. Use colors, overlays, and avoid simply presenting columns of numbers and data points (unless, of course, the data alone really is persuasive and simple). Make the data presentation interesting, but always make sure that it is beyond any doubt an accurate representation of the facts. Both you, as counsel, and your client will suffer greatly if the graphics are disingenuous and falsely represent the data.
The primary issue here is authentication, so it is critical to: 1) get the documents in advance of trial and determine if they are in the format where the court will admit them; and 2) study NJRE 901 and 902/FRE 901 and 902 to ensure that the evidence you intend to rely upon is properly authenticated. Getting that raised corporate seal may be a small thing—but it can be the difference between having evidence admitted or excluded.
The most common rule to rely upon is NJRE 803(c)(8), which addresses public records, reports and findings. These documents are excepted from hearsay if the document was written by a public official within the scope of that official's duties. Beware, however, of two problems that constantly arise in the application of this rule. The first is that the data or information upon which the public official relied must be trustworthy. If there is sincere doubt about the manner in which the public official derived his or her analysis, then anticipate a fight regarding admissibility of that document. A second problem is that NJRE 803(c)(8) addresses only the question whether that record falls within a hearsay exception—the record still has to be authenticated. A public record must have the signature of an official affixed (NJRE 902(a)/FRE 902).
Environmental trial practice in New Jersey is particularly enjoyable because of the camaraderie within the bar. In the limited space here, I cannot address all of the evidence problems I have faced, but I hope that by sharing the points above that others will be spared the evidence problems I have faced.
Reprinted with permission from the July 14, 2015, edition of the New Jersey Law Journal © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877.257.3382 - [email protected] or visit www.almreprints.com.