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

Date01 October 2014
AuthorBarbara J. Goldsmith, Tara Waikem Flynn, and Tara Franey
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
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.
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
2004. e HANDBOOK 
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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