Environmental Gatekeepers: Natural Resource Trustee Assessments and Frivolous Daubert Challenges
Allan Kanner, Natural Resource Trustee Assessments and Frivolous Daubert Challenges, 49 ELR 10420 (May 2019)
8 Pages Posted: 28 May 2019
Date Written: May 2019
The article addresses the role of Daubert in Natural Resource Trustee’s Natural Resource Damage Assessments following an environmental disaster such as an oil spill. It analyzes whether or not Daubert challenges are appropriate in such circumstances and suggests that an arbitrary and capricious challenge may be more suitable. Given that Natural Resource Trustees are akin to a traditional trust trustee, it would follow that the same fiduciary obligations attach regarding the preservation and restoration of the natural resources in the Public Trust. When combined with the rebuttable presumption and scientific methods codified in many environmental statutes and regulations, evidentiary challenges under the Daubert standard are frivolous and would be better replaced by an arbitrary and capricious challenge in line with typical trust fiduciary duties.
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