The Department of Justice (DOJ) has requested that former Environmental Protection Agency (EPA) official Jeffrey Holmstead be barred from testifying in a federal trial against utility company, Ameren Missouri. Holmstead, who has knowledge of EPA enforcement proceedings, has been accused of having confidential information resulting in a conflict of interest that, according to the DOJ, should preclude him from serving as an expert witness.

Former EPA Official an Environmental Enforcement Expert Witness

Ameren Missouri is a utility company charged by the EPA for allegedly failing to obtain proper construction permits and declining to install the best available pollution control technology when the company updated two coal-fired electricity units. Ameren is contesting the EPA, and hired Mr. Holmstead as an environmental enforcement expert to offer his opinion during trial. In an expert witness report filed earlier this year, Holmstead outlined his intent to testify:

• That the regulations Ameren allegedly violated did not apply to the company’s renovation of its coal-fire units because they only apply to new construction or significant modifications
• Missouri state regulations have jurisdiction over the case – not the EPA
• The EPA’s expert witness used improper methodology when predicting the long-term emissions from Ameren’s new coal-fired units
• The method for analyzing emission increases applied by the EPA was not considered at the time the regulations were created, and therefore the EPA cannot now use it to enforce the rule

Mr. Holmstead, who helped develop the EPA regulations while he was working for the agency, submitted his report after analyzing the government’s case against Ameren. With years of experience working with the EPA, Holmstead’s qualifications as an expert witness are not in dispute, however, his former position with the agency have created questions of a conflict of interest that may prohibit him from being further involved in the litigation.

Government Asks for Removal of Environmental Expert Witness

After reading Holmstead’s report, the DOJ immediately prepared a motion to dismiss him as an expert witness because of the confidential information he obtained while working for the EPA. Although Holmstead is a private attorney now, his time as a government employee gave him access to behind-the-scenes meetings and discussions regarding the creation and enforcement of EPA regulations. Throughout his expert witness report, Holmstead cites his experience with the creation of the regulations Ameren is charged with violating, causing the DOJ to request his removal.

Expert witnesses are usually not permitted to testify if there is, or was, a confidential relationship between the expert and one of the parties to the suit. In this case, the EPA is claiming that Holmstead had, over the course of his tenure with the agency, developed a confidential relationship, particularly regarding the creation and administration of the regulations relevant to the government’s case against Ameren. Holmstead, who held the highest position within the EPA’s Office of Air and Radiation, was privy to internal communications regarding the program Ameren is allegedly in violation of, and the DOJ argued that it is therefore objectively reasonable to disqualify him from testimony.

DOJ Leaves Gaps in Request to Disqualify EPA Expert Witness

As the court considers the government’s request to disqualify Holmstead due to his access to confidential information, it is worth noting that the DOJ”s motion does not specify what that information may be. The DOJ simply points to “internal communications” and “privileged information concerning the issues about which he now seeks to testify on behalf of Ameren,” without going into specific details. Further, Holmstead left the EPA in 2005, which is a full six years before the government’s investigation began in 2011 – removing him from years of communications that may have specifically addressed the Ameren case.

While the DOJ is correct that an expert witness with access to confidential information may be disqualified, it is unclear if the government made enough of a case to connect Holmstead’s prior EPA experience with confidential knowledge of its case against Ameren.