The Role of Government Trustees in Recovering Compensation for Injury to Natural Resources
WILLIAM D. BRIGHTONAND DAVID F. ASKMAN*
Any nation's natural resources are vital to its wealth, well-being, and identity. While some resources, such as land and minerals, can be purely private property, many important natural resources cross legal boundaries and are not 'owned' by anyone. These include wildlife, birds, and fish, as well as most rivers and costal waters. Such 'common' resources are of enormous value not only to identifiable groups of users -- fishermen, hunters, bird-watchers, hikers, swimmers, and shippers -- but also to the general public through the consumption of natural products, through economic growth fuelled by outdoor recreation and tourism, and through local, regional, or even national pride in specific resources (like bald eagles or the Maryland blue crab) or natural areas (like Yellowstone, the Grand Canyon, or Glacier Bay).
Protecting common natural resources from pollution has traditionally depended on government regulation or public nuisance actions. These remedies may compel a polluter to stop the harmful activity, but they generally do not require restoration of the quality of injured resources or compensation for direct and indirect losses resulting from the injury. While many jurisdictions allow private claims for lost profits and other personal economic losses when pollution has damaged the claimant's own property or health, for most of this nation's history the fact that an oil spill killed thousands of seabirds or that acid drainage from mining wastes cleansed twenty river miles of fish did not give anyone a right to compensation, because no one owned the birds or the fish.1
Over the last twenty years, a series of United States laws has dramatically expanded the authority of both federal and state governments to respond to oil spills and releases of hazardous materials. These laws -- most importantly, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980____________________