EPA Need Not Follow Daubert in Promulgating Test Methods, Says D.C. Circuit

The District of Columbia Circuit has rejected the contention, pressed by various corporate and municipal dischargers of pollutants, that EPA was required to adhere to Daubert when it promulgated water testing methods for its "whole effluent toxicity" or "WET" water quality standards. The polluters argued that the tests would later be used in enforcement proceedings in federal court, where Daubert governs the admissibility of expert evidence. "Evidentiary rules govern the admissibility of evidence at trial," replied the court, "not the establishment of the processes whereby such evidence will be created." That language would seem to leave open the possibility that a trial challenge would be entertained. But we'll have to wait and see.

See Edison Elec. Inst. v. EPA, No. 96-1062 (D.C. Cir. Dec. 10, 2004) (Edwards, Randolph, & Williams, JJ.).