A Decade of Natural Resource Damage Liability: Key Federal Decisions 2004-2014

• Date: 01 October 2014
• Author: Barbara J. Goldsmith, Tara Waikem Flynn, and Tara Franey

44 ELR 10868 ENVIRONMENTAL LAW REPORTER 10-2014

C O M M E N T

A Decade of Natural Resource

Damage Liability: Key Federal

Decisions 2004-2014

by Barbara J. Goldsmith, Tara Waikem Flynn, and Tara Franey

Barbara J. Goldsmith is President of Barbara J. Goldsmith & Company LLC and Director of the Ad-Hoc Industry

Natural Resource Management Group. Tara Waikem Flynn serves as Projects Counsel at Barbara J. Goldsmith

& Company LLC, and Tara Franey is a Projects Associate at Barbara J. Goldsmith & Company LLC.

I. Introduction

Liability for natural resource damages (NRD) was rst

authorized when the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA) of

19801 was enacted. Over the years, claims for NR D have

also been brought pursuant to a number of other federal

statutes, including the Oil Pollution Act (OPA) of 19902

and the Clean Water Act (CWA),3 as well as statutes in

over 40 states t hat contain provisions authorizing the

recovery of NRD. In addition, common-law claims such

as trespass and nuisance have also been used to seek NRD

recoveries. Under federal and state statutes, parties are typ-

ically responsible for damages associated with injuries to

natural resources resulting from the release of ha zardous

substances and oil.

e past 30 years have seen a slow appearance and

evolution of NRD-related case law. e range of infor-

mation resulting from the various decisions issued in the

1. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.

2. 33 U.S.C. §§2701-2761, ELR S. OPA §§1001-7001.

3. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

past decade may be useful to legal practitioners, particu-

larly relative to dening NRD liability, guiding procedural

actions, and resolving liability claims. is Comment

focuses on federal judicial opinions that were issued dur-

ing the period 200 4-2014 under CERCLA and OPA, as

those are the principal federal statutes under which opin-

ions have been issued. While there have been some state

case law developments in the past se veral years, particu-

larly in the New Jersey superior courts, those decisions are

not discussed here.

e Comment rst provides some brief context con-

cerning NRD liability under CERCLA and OPA. Next, it

highlights and summarizes federal NRD case law develop-

ments of the past 10 years at both the district and appellate

levels that have addressed the following issues: (1)legisla-

tive elements of a federal NRD liability claim; (2)limita-

tions of liability; (3)procedural matters; (4)damages; and

(5)settlements.

II. NRD Liability Under Federal Statutes

Liabilit y for NRD may arise at sites from historical

contamin ation, inst antaneous oil spil ls, or ac cidents

involving the release of oil or hazardous substances a nd

is authorized under a variety of federal laws, including

CERCLA, C WA, OPA, the Nationa l Marine Sanctuar-

ies Act,4 a nd the Park System Resource Protection Act.5

ese federal statutes contain specic provisions autho-

rizing t he recovery of d amage s for NRD liability, includ-

ing the recovery of the injur y to, destruction of, or loss

of nat ural resou rces, as well as the reasonable c osts of a

damag e asses sment.6

4. 16 U.S.C. §§1431-1445.

5. 16 U.S.C. §§19(jj). See generally National Oceanic and Atmospheric Ad-

ministration Damage Assessment, Remediation, and Restoration Program

(NOAA DARRP), About Relevant Laws, available at http://www.darrp.

noaa.gov/about/laws.html.

6. 42 U.S.C. §§101(6), 107(a)(4)(C); 42 U.S.C. §§1001(5), 1002(b)(2).



        

       

and natural resources. It has tracked case law developments

 e

       

         

Resource Management Group or its industrial company members.

is Comment is intended to serve as an adjunct to a compilation

   HANDBOOK OF THE LAW OF NATURAL RESOURCE

DAMAGES



2004. e HANDBOOK 





Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.