When someone visualizes an expert witness, they frequently envision a doctor or professor giving expert testimony in a courtroom, possibly with charts and photographs and maybe even replica body parts. But recently I’ve read about an increasing number of expert witnesses testifying in energy and climate matters, and wanted to illustrate how professionals in varying fields serve as expert witnesses in these cases.
Possibly the most recent high-profile energy law case was the criminal trial of former Massey Energy CEO, Don Blankenship. Mr. Blankenship was found guilty of one of three counts tied to the deadly coal mine explosion in 2010, where 29 men died while working at the Upper Big Branch Mine in West Virginia.
Mr. Blankenship was charged with conspiring to evade federal mine safety laws and lying to financial regulators and investors about safety. The prosecution called a financial expert to testify that Massey Energy’s stock was affected by the company’s public statements and news following the deadly mine explosion. In his own secretly-recorded phone call, Mr. Blankenship said a “scathing internal safety memo should be kept highly confidential, and that it would be a terrible document to show up in legal discovery if there was a mine fatality.”
Former internal safety expert, William Ross, testified about the company’s hundreds of safety violations and shortcomings. Mr. Blankenship allegedly deliberately held off on upgrading ventilation and related safety equipment, which would have decreased coal dust and gases brewing at Upper Big Branch Mine, which led to the explosion. Mr. Ross even recalled a 2009 meeting whereby he told Mr. Blankenship that something had to be done and that the company couldn’t “afford to have a disaster.” Mr. Ross reportedly wept while testifying “about how thrilled he was that he thought Massey Energy was going to change.”
Although Mr. Blankenship was acquitted of making false statements and securities fraud, he was convicted of conspiring to break safety laws, making him the first chief executive of a coal company to face justice for the death of coal miners in the past 150 years.
In Ohio, an energy expert from the Public Utilities Commission testified against a controversial power purchase agreement. FirstEnergy claimed it needed a 15-year contract to exclusively buy all of the electricity from two of its power plants in order to keep them open. Opponents believed the purchase agreement would basically make customers subsidize power plants, and argued against this sort of “bailout.”
Hisham Choueiki, an employee in the rates and analysis department of the Ohio PUC, wanted FirstEnergy to rely less on “rosy” projections and instead, back a proposal with an independent study. Mr. Choueiki claimed FirstEnergy’s plan simply “provided an assessment, conducted by two of their transmission engineers, on the impact of” the closure of its two power plants. The PUC agreed, pushed for the independent analysis, and requested a three year purchase agreement versus FirstEnergy’s original 15-year contract.
At the United Nations’ December 2015 climate change convention in Paris, also known as COP21, teams of experts negotiated to meet a new international agreement on climate change. The Environmental Defense Fund, for example, states its staff contributed to the success of the convention, which included experts in: US and international climate and energy policy; carbon markets and carbon market design; architecture of a climate agreement; legal issues in climate negotiations; framework for various approaches; and Reducing Emissions from Deforestation and Forest Degradation, just to name a few.
A mock trial of ExxonMobil and its ongoing role in climate change also took place at COP21, whereby Jason Box, “leading glaciologist,” testified on scientific documents from Exxon dating back to the 1970’s and 1980’s. Mr. Box is a professor of glaciology at the Geological Survey of Denmark and Greenland who has been studying the Greenland ice sheet since 1994. His hope is that the mock trial at COP21 will bring about “environmental justice” so an industry can move towards more renewable and sustainable energy options.
Are we just better educated and hyperaware of energy and climate issues in our modern, constantly-connected society? Some call it a societal “green movement,” but with increased media, coupled with the UN’s recent actions in Paris, I believe we’ll continue to see an increase in energy and climate law matters and diplomacy.