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 ME 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 that 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 hazardous

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 2004-2014 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 several 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

Liability for NRD may arise at sites from historical

contamination, instantaneous oil spills, or accidents

involving the release of oil or hazardous substances a nd

is authorized under a varietyof federal laws, including

CERCLA, CWA, OPA, the National Marine Sanctuar-

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

ese federal statutes contain specic provisions autho-

rizing the recovery of damages for NRD liability, includ-

ing the recovery of the injury to, destruction of, or loss

of nat ural resources, as well as the reasonable costs of a

damage assessment.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

   HANDBOOKOFTHE LAWOF 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.