Securing, Examining, and Cross-Examining Expert Witnesses in Environmental Cases

It is necessary at the outset to define the scope of the problem with which this Article will deal. Environmental cases are litigated in both judicial and administrative tribunals. The judicial proceedings include plenary actions and special proceedings and are heard in both federal and state courts. The administrative proceedings include licensing proceedings before federal agencies such as the Federal Power Commission and Atomic Energy Commission. Whether such administrative proceedings are deemed quasi-judicial or not, they are within the scope of this Article so long as they are adversary and involve testimony under oath, examination and cross-examination of witnesses, a formal record of testimonial and documentary evidence, and findings and conclusions based solely on that record. Of course, many legislative bodies and committees, as well as administrative agencies, conduct nonadversary “hearings” with formal records. Such hearings often involve the testimony and statements of large numbers of renowned experts, and a strong case can be made for urging that they are better instruments for ascertaining truth and wisdom than are adversary proceedings. The focus of this Article, however, is solely on proceedings which are adversary in nature and which involve the procedural aspects described above.

It is also necessary to examine the “environmental” nature of the litigation with which this Article is concerned. First, the Article deals with proceedings which determine the disposition or use of natural resources or aspects of our natural environment. Second, it is concerned only ·with the problems of, and it looks at the subject matter only through the eyes of, the conservationist who is attempting to protect the resource or environment from one special disposition, use, or claim. This limitation to the problems of the “protectors” is perhaps contrary to tradition as well as injudicious. Such limitation is absolutely necessary, however, because the problems of the two sides are as vastly different from one another as the refining of the pebbles in David’s sling was different from the buildup of the might of Goliath’s brawn.