Natural Resource Damage Assessment Concepts and Players

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 1-5

Page 1

Chapter 1

Natural Resource Damage Assessment

Concepts and Players

1.1 Introduction

e primary federal natural resource damage (NRD) statutes, which we introduce and discuss further in

Chapter 2, arise out of common roots. As a result, similar concepts thread throughout the statutes dis-

cussed in this book. is chapter presents key concepts to guide the reader who has had no prior involve-

ment with natural resource damage assessment (NRDA), including dening important concepts, and

describing the elements of the NRDA process. It also describes the role of “trustees.”

1.2 An Overview of Natural Resource Damage Assessment Concepts

1.2.1 Injury and Damage

e statutes in this book involve frameworks that impose liability on responsible parties for “damages” in

the case of “injuries” to natural resources.1 It is important to bear in mind that in an NRD context “injury”

is not the same as “da mage.”

In NRDAs, “injury” is a scientic concept; it is the adverse impact on natural resources resulting from

an incident, such as an oil spill or release of hazardous substa nces. In add ition to an impact directly to a

natural resource, NRDA a lso frames injury in terms of the reduction in ser vices provided by the natura l

resources to humans or for the benet of other natural resources.

Damage, on the other ha nd, is a legal term of art. “Damage” is t he translation of injuries into what a

liable party has to do or pay to make the public and environment whole for the injuries to natural resources.

In short, it is the monetization of injury. e di erence between dama ge and injury has important

implications for how the courts construe exceptions to liability under an importa nt NRD authority, the

Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA).2

1.2.2 Compensatory Focus Through Restoration

e purpose of the NRDA provisions of the statutes discussed in this book is compensatory, not punitive.

ey are designed to make the public whole rather than to punish parties considered strictly liable under

the statutes for spills, releases, and injuries (responsible par ties). is compensatory focus drives the legal

development of cases under all NRD provisions and the technical process of NRDA.

1. As we discuss in Chapters 7 and 8, two statutes (the National Park System Resource Protection Act (NPSRPA) and the Marine Protection,

Research, and Sanctuaries Act (MPRSA)) speak of injuries to resources of national park units and national marine sanctuaries. e denitions

of such resources can be somewhat broader than those denitions found under the Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA), the Oil Pollution Act (OPA), and the Clean Water Act (CWA). Given, however, the common approach that

trustees utilize to analyze damages in terms of lost services and uses, in the end, it is not clear how great the dierence between such denitions

really is.

2. See Section 4.3.9, discussing exceptions and limitations to liability under CERCLA.