Introduction

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 17-18

Page xvii

Introduction

A robust body of law, science, engineering, a nd economics has developed in connection with natural

resource damage assessment (NRDA). NR DA beg an in the 1970s with congressional recognition that

penalties could not make the environment whole in the aftermath of incidents killing thousands of birds

and soiling miles of beaches. Congress crafted an approach where headlines of disaster could be turned into

stories of restoration success, though not without a price, of course. Cases easily ran into the mill ions. e

well-known natural resource damage (NR D) incident, Exxon Valdez, was resolved for close to $1 billion.1

Indeed, the 2010 BP Deepwater Horizon oil well blowout, which as of this writing, remains heavily mired

in litigation, has already resu lted in billions of dollars in claims or settlements and is likely to end with

billions of dollars more.2

e purpose of this deskbook is to provide a survey of the law and techniques associated with the

common body of law, science, and economics constituting NRDA. e frameworks for liability and the

goals under t he federal statutes providing a rig ht-of-action for NRDs are substantially the same. e law

and technica l approaches for NRDA under one statute tend to build the base for assessment under other

statutes. Further, an u nderstanding of the science behind these a ssessments can provide a holistic view of

the NRDA process. us, NRDA is best undertaken with an understanding of legal developments under

all the federal NRD statutes and the technical approaches used for assessment. e body of this desk-

book presents both ana lysis of law and practical information about the elements of NR DA and technical

approaches used. e deskbook is written with both environmental managers and lawyers in mind.

In order for the reader to gain an understanding of the concepts explored in this deskbook without hav-

ing to read all the chapters, the authors have intentionally made it somewhat redundant. ere is a glossary

with key terms and an appendix containing federal regulations promulgated under two statutes that federal

agencies may (but are not required to) use for NRDAs. e appendix also contains examples of key docu-

ments, including complaints, consent decrees, and information and funding guidelines.

Chapter 1 is an overview of key concepts in NRDA and also provides a brief introduction of the key gov-

ernment players—the trustees. ese trustees represent federal, state, and tribal governments. roughout

this deskbook, the various levels of public entities are referred to collectively as “government” unless oth-

erwise noted. If you have not had any experience with NR DA, the key concepts presented in t his chapter

will increase your understa nding of succeeding chapters.

Chapter 2 briey describes the historical context of the development of NRDAs. is chapter traces the

earliest statutory appearances of NRDs to its present-day appearances in the Comprehensive Environmen-

tal Response, Compensation, and Liability Act (CERCLA)3 and the Oil Pollution Act (OPA) of 1990.4

Chapter 3 provides bulleted checklists with key questions to ask, as well a s summar y charts that help

explain which federal statutory authorities a re implicated by dierent types of incidents and the govern-

ment agencies likely to be involved.

Chapters 4 through 8 provide an overvie w of the framework of the following principal federa l

NRD authorit ies:

• CERCLA;

• OPA;

• Clean Water Act (CWA)5;

• Marine Protection, Research, and Sanctu aries Act (MPRSA)6; and

1. e punitive damages award was originally set at $2.5 billion but was reduced and capped by the U.S. Supreme Court in subsequent litigation

to $507 million to equal the amount of compensatory damages already paid to qualied recipients. See Exxon Shipping Co. et al. v. Grant

Baker et al., 554 U.S. 471, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008).

2. See Deepwater Horizon Oil Spill Litigation Database, E L I, http://www.eli.org/program_areas/deepwater_hori-

zon_oil_spill_litigation_database.cfm (last visited May 15, 2013).

3. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.

4. Id.

5. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

6. 16 U.S.C. §§1431-1447(f).