San Francisco Baykeeper v. Sunnyvale

Background

San Francisco Baykeeper brought consolidated suits against the City of Sunnyvale and the City of Mountain View under the citizen-suit provisions of the Clean Water Act. Baykeeper alleged that bacteria discharged through the Cities’ municipal storm-sewer systems violated requirements in a regional stormwater permit. The Cities’ stormwater systems collect water from streets and other surfaces and discharge it into local creeks leading to San Francisco Bay.

This order concerned Baykeeper’s motions under Federal Rules of Evidence 104(a) and 702 to exclude portions of testimony from two defense experts, Brandon Steets and Mark Berkman. Rule 702 governs when an expert may testify based on specialized knowledge, and requires sufficient facts or data and reliable methods. The court described its role as ensuring that expert testimony is relevant and reliable.

Brandon Steets

The Cities designated Steets, a chemical engineer with more than 20 years of experience in municipal stormwater management, as an expert on stormwater-permit compliance and Baykeeper’s evidence. Baykeeper did not challenge his general qualification as an engineering expert. It challenged Section 7.4, Opinion 4, of his report, which stated that consistently meeting bacteria water-quality standards during wet weather was not feasible because of economic impracticality or affordability for the Cities.

The court rejected Baykeeper’s argument that the opinion had to be excluded merely because Steets was not an economist. The court said his lack of economics training affected the weight of the opinion—the importance a factfinder should give it—rather than its admissibility.

The court nevertheless excluded the opinion for lack of a sufficient factual basis. Steets’s report did not cite objectively verifiable facts or data about the Cities’ past, present, or projected financial positions. His reliance on the absence of known successful efforts in other California urban areas, and on a vague reference to San Jose’s “considerable budget,” did not establish that Sunnyvale and Mountain View could not economically afford measures to meet the bacteria standards. The court therefore granted in part Baykeeper’s motion as to Section 7.4, Opinion 4, and associated testimony.

Mark Berkman

The Cities designated Berkman, an applied economist, to review and rebut Baykeeper expert Johnathan Shefftz’s opinions about potential compliance costs and penalties. Baykeeper challenged Berkman’s opinions concerning compliance costs and his criticism of Shefftz’s penalty assessment.

Shefftz estimated compliance costs of $485.5 million for Sunnyvale and $261.4 million for Mountain View by using and prorating the cost of a $2.7 billion watershed project in the Los Angeles metropolitan area. Berkman opined that this was an unreasonable comparison because the project addressed additional pollutants and objectives that were not relevant to the case, including metals, climate-change resilience, and aesthetic improvements. Berkman estimated costs of $2.2 million or less for Sunnyvale and $0.3 million or less for Mountain View after removing the Los Angeles project as a comparison.

The court rejected Baykeeper’s argument that Berkman needed to be an engineer to offer this economic analysis. It also held that disagreements about whether his analysis should have considered additional engineering issues went to the weight of his testimony, not its admissibility.

Berkman also criticized Shefftz’s penalty assessment using factors from the Environmental Protection Agency’s economic-benefit model, including environmental harm and the Cities’ cooperation. The court found Berkman qualified to testify about penalties based on his education, more than 30 years of experience as an applied economist, prior court testimony, and experience with penalty calculations and the model. The court further found that his opinions had objectively verifiable support, including documents, a prior study, maps, and personal observations. Baykeeper’s disagreements with his conclusions could be addressed through cross-examination and rebuttal evidence.

Disposition

The court granted in part Baykeeper’s motion to exclude portions of Steets’s expert report and testimony, excluding his opinion about the economic impracticability of meeting bacteria water-quality standards and related testimony. The court denied Baykeeper’s motion to exclude portions of Berkman’s expert testimony. Judge Edward J. Davila signed the order on February 1, 2022. The order did not decide the underlying Clean Water Act claims.