§15.2 - Background

• Jurisdiction: Washington

§15.2 BACKGROUND

The bases for NRD actions were developed under the common law, finding roots in the Public Trust Doctrine. In accord, legislators recognized the need to address natural resource damages concomitant to hazardous substance releases as part of the environmental remediation process, and thus incorporated NRD claim provisions into federal and state cleanup statutes.

(1) Common-law roots

Government protection of natural resources has long been grounded in the common law under the Public Trust Doctrine, under which state governments act as trustees to preserve natural resources for the public benefit. See generally 5 Washington Real Property Deskbook Ch. 18 (The Public Trust Doctrine in Washington) (Wash. St. Bar Assoc. 2012). Private citizens may sue state governments or other private citizens for loss or damage to resources held in trust, and state governments may sue private parties for such damage on behalf of the public. See Cynthia Carlson, Making CERCLA Natural Resource Damage Regulations Work: The Use of the Public Trust Doctrine and Other State Remedies, 18 Envtl. L. Rep. (Envtl. L. Inst.) 10,299 (1988). Additionally, any owner of property, public or private, may bring suit under tort theories of nuisance, trespass, or intrusion for damage to natural resources held in public trust caused by hazardous substance releases. Tort-based theories for recovery of NRD are discussed in more detail in §15.6(3), below. These bases for protection of natural resources, and for NRD claims, helped shape subsequent legislative intent to provide for natural resource protection and damages claims under federal and state statutes.

Comment: Although common-law precedent may be useful for certain issues it is best referenced to analyze the legislative intent behind regulatory NRD developments

(2) Federal statutory development

NRD claims were first authorized by federal statute in 1973, under the Trans-Alaska Pipeline Authorization Act, 43 U.S.C. §§1651-1656, which imposed liability for damages stemming from pipeline activities. Regulations implemented under the Act in 1977 define damages to include [i]njury to, or destruction of, natural resources, 43 C.F.R. §29.1(e)(4), and [l]oss of use of natural resources, 43 C.F.R. §29.1(e)(5). Some form of right of action for NRD has since been included in an expanding number of statutes. See, e.g., the 1974 Deepwater Port Act, 33 U.S.C. §§1501-1524; the 1977 Clean Water Act Amendments, 33 U.S.C. §§1251-1274; the Outer Continental Shelf Lands Act Amendments of 1978, 43 U.S.C. §§1801-1802, 1811-1824, 1841-1847, 1861-1866; and the 1988 amendments to the Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C. §§1431-1445c-1. Because some of the provisions are limited in scope and others have been repealed, two principal NRD statutory provisions remain: CERCLA, 42 U.S.C. §§9601-9675, and the Oil Pollution Act of 1990 (OPA), 33 U.S.C. §§2701-9620. The development of NRD case law arose primarily under CERCLA.

Congress enacted CERCLA on December 11, 1980, and most litigation under the statute has concerned response cost actions or the cleanup of historical hazardous substance releases. Cleanup can require site investigation, development of remedial alternatives, and implementation of a selected remedy, which often includes excavation, transportation of contaminated material to approved facilities, or in situ remediation such as pumping and treating groundwater. Expenditures related to remediation activities are considered response costs and are recoverable by the government or private parties under CERCLA §107(a)(4)(A)-(B), 42 U.S.C. §9607(a)(4)(A)-(B).

Congress intended that the NRD provisions of CERCLA, and subsequent NRD regulations, should address injury left unmitigated by response and remediation efforts. Verlan, Ltd. v. John L. Armitage & Co., 695 F. Supp. 950, 954 n.5 (N.D. Ill. 1988). Yet despite that the statute expressly provides parties a claim for NRD concomitant with environmental cleanup response cost claims, NRD actions have generally lagged behind response cost actions for several reasons. First, while cleanup responsibility under CERCLA was assigned to the U.S. Environmental Protection Agency (EPA), the task of drafting NRD regulations was assigned to the U.S. Department of Interior (DOI). The process met a variety of delays, including challenges to the U.S. DOIs original draft regulation. See Ohio v. U.S. Dept of Interior, 880 F.2d 432, 440 (D.C. Cir. 1989). The draft regulation was finally promulgated on May 7, 1996. In addition to the delay caused by the slow adoption of regulations, initially NRD claims did not regularly accompany response cost actions because NRD actions generally may not be brought under CERCLA until a remediation plan is selected. CERCLA §113(g); 42 U.S.C. §9613(g). NRD claims also present a different, and sometimes more difficult, burden of proof than response cost cases. Moreover, trustees often lack funds to pursue potentially costly assessments and case preparation.

In addition, case law development in the area is limited because thus far many NRD claims have settled. However, although scant case law has yet to provide clear guidance to practitioners about the framework and application of the statutory provisions, multimillion and billion dollar settlements of NRD claims are indicative of their significance. In addition, because NRD law is currently developing, many legal issues remain untested and unresolved, making NRD claims an unpredictable and potentially enormous component of CERCLA cleanup actions.

Comment: The vast majority of NRD cases have settled; with the threat of large damages claims and the risk to both sides of taking the issues to trial, settlement has seemed attractive. Moreover, NRD claims are costly to assess, prepare, and defend, making settlement doubly attractive.

(3) Washingtons statutory regime

MTCA, Chapter 70.105D RCW, Washington states cleanup law, also provides for the recovery of natural resource damages. Persons liable under MTCA are strictly liable, on a joint and several basis, for all natural resource damages resulting from the releases or threatened releases of hazardous substances. RCW 70.105D.040(2). This liability is potentially broader than under the federal statute because, unlike CERCLA, MTCA contains no $50 million cap on damages (see §15.5(1), below); liability is explicitly joint and several (see §15.3(3), below); and petroleum is defined as a hazardous substance. See Chapter 6 (Washington Model Toxics Control Act) of this deskbook.

MTCA empowers the Washington state attorney general, at the request of DOE, to pursue actions for NRD. RCW 70.105D.040(2); WAC 173-340-550(5). Despite that authority, DOE has not promulgated regulations governing NRD assessment or calculations under MTCA. Moreover, while DOE has pursued NRD claims as a trustee of the state under CERCLA, it has rarely pursued such claims under MTCA. See United States v. Foss Maritime Co., No. 2:08-cv-01364-ORD (W.D. Wash. Sept. 12, 2008) (Consent Decree), http://emerginglitigation.shb.com/Portals/f81bfc4f-cc59-46fe-9ed5-7795e6eea5b5/r_FOSS_Maritime_Company_CDfinal.pdf. See also §15.2(7), below.

DOE has, however, pursued NRD claims under its authority in relation to oil spills. Under the authority of the Oil and Hazardous Substance Spill Prevention and Response...