Atmospheric recovery litigation: making the fossil fuel industry pay to restore a viable climate system.

Author:Wood, Mary Christina
Position:Continuation of III. Recovery of Natural Resource Damages Under the Public Trust Doctrine D. Fiduciary Duties: Asset Protection and the Recovery for Damages 2. The Recovery of Natural Resource Damages through VI. Conclusion, with footnotes, p. 293-335 - Developments in the Public Trust
 
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  1. Basis for Recovery: Statutory Law and Common Law

    The authority to recover NRDs exists as a matter of both state and federal common law. (246) In State v. Gillette, (247) for example, the Washington Court of Appeals made clear that government trustees have both the authority and duty, outside of statutory law, to recover NRDs. (248) Holding that the Department of Fisheries was entitled to recover NRDs for loss of fisheries habitat even absent a statutory provision allowing recovery, the court said: "[T]he state, through the Department, has the fiduciary obligation of any trustee to seek damages for injury to the object of its trust." (249) In In Re Steuart Transportation Co., (250) a federal district court held that the federal government and the state of Virginia could recover for the loss of migratory waterfowl resulting from an oil spill, absent any statutory basis. (251) The court stated: "Under the public trust doctrine, the State of Virginia and the United States have the right and the duty to protect and preserve the public's interest in natural wildlife resources." (252) In State v City of Bowling Green, (253) the Supreme Court of Ohio held that a municipality was potentially liable under the PTD for a fish-kill that occurred due to a municipality's negligent discharge from its sewage treatment plant. (254)

    Apart from this body of common law, federal and state legislatures have enacted detailed statutory provisions allowing the recovery of NRDs. (255) CERCLA, passed in 1980, provides for NRDs due to releases of "hazardous substances." (256) Following the Exxon Valdez oil spill in Prince William Sound, Alaska, Congress enacted the OPA in 1990 to impose liability for NRDs and cleanup costs associated with oil spills. (257) In 1988, the amendments to the Marine Protection, Research, and Sanctuaries Act (MPRSA) (258) were passed to provide an explicit right of recovery for NRDs to marine resources found in national marine sanctuaries "no matter how the damage is caused or by whom." (259) Similarly, the Park System Resources Protection Act (PSRPA) (260) was enacted to cover injuries to any resources within national parks regardless of causation. (261) Several state legislatures have also passed statutes providing for NRDs. (262) These statutes typically aim toward specific categories of harm. (263) Some statutory schemes impose unique limitations on recovery. (264) For example, CERCLA limits the amount of recovery from $5,000,000 to $50,000,000, depending on the release mechanism. (265)

    Common law claims continue to exist outside of statutory law under the PTD. (266) Therefore, if damage to public natural resources does not fall within the purview of a statute, the sovereign still has the authority and fiduciary obligation to pursue damages under the PTD. This matter becomes important in the context of atmospheric climate NRDs, which, as Part IV explains, are not presently covered by statute.

  2. Elements of a Natural Resources Damages Claim

    The elements of an NRD claim based on either statutory law or public trust law are fairly straightforward. As a basic matter, one must prove the existence of: 1) a trust res (natural resources); 2) a trustee; 3) damage to the res, 4) liable parties; and 5) causation. (267) Some statutory schemes require additional elements. A CERCLA claim, for example, must allege the release of a classified "hazardous substance." (268) An OPA claim must allege a release of oil. (269) The question of fault is typically absent (or only implied) in statutory schemes, with courts imposing strict liability principles. (270) Given the difficulty of proving negligence or fault in pollution contexts, and in light of the public's need for recovering essential ecological resources, courts are likely to impose strict liability for common law NRD claims as well.

  3. Defenses

    Most defenses in NRD cases arise from the explicit language of statutes that provide the basis for recovery. These defenses do not automatically apply to nonstatutory NRD claims. The basic statutory defenses are: 1) act of God, 2) act of war, and 3) act or omission of third party. (271) Different statutes have additional provisions that can eliminate liability as well. (272)

    CERCLA does not impose liability for releases occurring before the statute's enactment unless the damage is ongoing. (273) MPRSA and PSRPA allow a defense for an act authorized by federal or state law. (274) Similarly, CERCLA establishes a "permit shield" protecting polluters against NRD liability where the damage was authorized by a federal permit. (275) Generally, courts have interpreted this federal permit shield narrowly. (276) CERCLA also contains a provision that denies recovery for NRDs if the losses were identified in an environmental impact statement as "an irreversible and irretrievable commitment of natural resources" and "the decision to grant a permit or license authorizes such commitment of natural resources." (277) Notably, however, the legitimacy of such action-limiting provisions has never been analyzed for compliance with basic trust standards. While the permit shield is a long-accepted feature of statutory law, its premise remains dubious. Allowing polluters a permit shield seemingly violates the basic fiduciary duty of restoring the trust and gaining compensation for damage from responsible parties. (278) As courts have emphasized, the PTD stands apart from statutory law, and compliance with a statutory scheme does not automatically ensure compliance with trust standards. (279)

  4. Valuation of Natural Resource Damages

    Statutory schemes such as CERCLA define three components of the NRD award. The first is restoration costs incurred by trustees in restoring, rehabilitating, or replacing the lost or injured resources. (280) This cost is beyond the typical response costs that agencies incur to prevent ongoing risks to health and the environment. (281) The second component consists of the lost value of the injured or destroyed resource from the time of contamination/release until rehabilitation/restoration is achieved. (282) This component recognizes the ongoing value of natural resources to the public and compensates the public for partial or complete loss of trust assets. (283) The third component consists of assessment costs for the previous two components. (284)

    Methods for valuing NRDs have been developed in regulations promulgated under CERCLA and OPA. (285) The NRD methodologies under both statutes are voluntary; however, each statute provides trustees with a "rebuttable presumption" that damage assessments done according to the protocol are valid. (286) The Department of the Interior has developed two different models for assessing NRDs under CERCLA. Type A procedures are geared toward "simplified assessments requiring minimal field observation." (287) Type B procedures are appropriate for more complex cases requiring intensive data analysis. (288) The total damages are based on the cost of restoration, rehabilitation, replacement, or acquisition of equivalent resources, and the compensable value of lost services from release until return to baseline. (289) Guidance is provided for determining the baseline for damage to surface water, groundwater, air, geologic, and biological resources. (290)

    1. RECOVERY OF NATURAL RESOURCE DAMAGES TO THE ATMOSPHERIC TRUST

      As Part I explains, a massive drawdown of 100 GtC from the atmosphere, along with slashed carbon emissions, remains necessary to restore the climate stability that stands essential to human survival and the endurance of civilization. According to the Hansen team, the drawdown can be accomplished through natural restoration measures consisting of reforestation and soil sequestration. (291) The undertaking requires a global atmospheric recovery plan that would identify key projects in areas throughout the world holding the greatest potential for significant carbon drawdown. (292) Such a plan would quantify the carbon drawdown capacity of each project and establish monitoring measures to ensure that the aggregate goals are accomplished. (293) As the plan is implemented, a global carbon accounting must measure progress by quantifying the drawdown achieved. This atmospheric restoration plan, with all of the component projects, requires funding.

      The obvious parties to fund such restoration are the very corporations that caused the damage. While there have been many pioneering cases at the forefront of climate litigation, none has yet asserted a claim to recover NRDs to the atmosphere and Earth's climate system. For several years, at least one leading industry lawyer has warned fossil fuel corporations of this potential liability. (294) In a two-part series of articles, Ira Gottlieb explored the viability of climate NRD damage actions and analyzed whether standard insurance policies would provide coverage for such claims. (295) Part I of the series concluded that, as of 2008, the claims were not yet viable for two primary reasons. (296) As a first basis, Mr. Gottlieb correctly observed that the primary NRD recovery statute, CERCLA, did not provide a statutory basis for climate NRD awards. (297) The second basis focused on the difficulty in establishing causation that would link specific emissions of the defendants to specific damage caused by an unstable climate. (298)

      However, as the discussion below explains in more detail, neither drawback precludes the NRD claims explored in this Article. As to the first concern, while it is true that CERCLA does not provide for climate NRDs, common law remains a basis for NRDs that fall outside of statutes. (299) Moreover, states, tribes, the federal government, and other nations may pass explicit legislation providing for such damages. (300) As to the second concern, it is important to distinguish primary atmospheric and climate system damage from secondary climate damage. As noted above, this Article focuses on the former, whereas the...

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