Understanding and Protecting Natural Resources
Kanner, Allan, Ziegler, Mary E., Duke Environmental Law & Policy Forum
TABLE OF CONTENTS I. Introduction II. BRINGING AN NRD CLAIM A. Who is the Proper Party to File Suit? 1. State Trustees 2. Federal Trustees 3. Overlapping Authority 4. Municipal and Local Trustees 5. Citizen Suits B. Causes of Action 1. State Statutory Causes of Action 2. Common Law Causes of Action C. Causation D. Injury E. Damages 1. Generally 2. Valuation F. Defenses 1. Statutory Defenses 2. Applicability of CERCLA 3. NRD and Site Remediation are the Same 4. Preemption of Federal Law 5. Scope of the Public Trust Doctrine 6. Government Contractor Defense 7. Statutory Immunity 8. Standing to Bring NRD Claims III. Conclusion
"Some paintings become famous because, being durable, they are viewed by successive generations, in each of which are likely to be found a few appreciative eyes. I know a painting so evanescent that it is seldom viewed at all, except by some wandering deer. It is a river who wields the brush, and it is the same river who, before I can bring my friends to view his work, erases it Forever from human view. After that it exists only in my mind's eye." (1)
Over the years, environmental pollution has spawned a great deal of public and private litigation and related governmental investigations. One type of claim, however, has seen little contemporary litigation: claims for natural resource damages ("NRD"). The relative dearth of NRD claims being pursued is unusual given the breadth of available legal theories and the compelling public interest at stake. The goal of this article is to explain the importance of NRD programs and evaluate the process of bringing and defending NRD claims in the United States.
A strong NRD program benefits society in many diverse ways. Economic enhancement and increased protection for environmental, recreational, and historical interests are but a few examples (2). A U.S. Fish & Wildlife Service article espoused the benefits of a strong NRD program:
NRDAR [Natural Resource Damage Assessment and Restoration Program] ensures healthy fish and wildlife populations, as well as healthy lands and waters on which they depend. NRDAR ensures healthy wetlands, which support more species of wildlife than any other habitat type. Wetlands are especially important to commercial saltwater fish and shellfish. Wetlands benefit people by providing recreational opportunities, recharging groundwater supplies, reducing flood damage, and controlling erosion. The economic benefits of wetland resources are estimated at more than $1 trillion annually. NRDAR benefits the nation's 35 million anglers, 14 million hunters, and 63 million wildlife viewers who rely on healthy fish and wildlife populations for their outdoor pursuits. NRDAR helps maintain a thriving economy by ensuring healthy resources that provide recreational opportunities. Fishing annually brings in $38 billion; hunting, $21 billion; and wildlife viewing, $27 billion. These earnings represent about 1.4% of the Gross Domestic Product. NRDAR helps safeguard more than 2 million full- and part-time jobs related to fishing, hunting, and wildlife viewing. NRDAR benefits a nearly $4 billion dollar per year commercial fishing industry. (3)
In addition, property owners and other real estate interests adjacent to restored areas benefit by removing stigmas that lower property values, promoting economic development and enhancing the use and enjoyment of property. The establishment of new natural resources, such as habitats for certain species, might create more development opportunities in other areas over time. Healthy natural resources are also important to Native American Tribes and help to maintain "their sovereign rights to land, water, fishing, hunting, and gathering, as well as cultural, spiritual, and traditional activities that depend on healthy resources. …