Litigating and Settling a Natural Resource Damage Claim in the United States: The Defence Lawyer's Perspective
CHARLES B. ANDERSON
Natural resource damage assessment ( NRDA) is an adversarial process in the United States. Although virtually all natural resource damages cases settle before trial, they are generally preceded by a multitude of assessment studies and analyses, prolonged debates between experts on both sides, and seemingly endless meetings with trustees representing federal, state, and local governments. This Chapter will discuss the NRDA process from the perspective of lawyers representing responsible parties in actions brought under both the Oil Pollution Act of 1990 (OPA) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), and will evaluate some of the problems likely to be encountered in trying and settling a natural resource damage action in the United States.
OPA establishes a comprehensive scheme for liability and damages resulting from the discharge of oil into the navigable waters of the United States and the exclusive economic zone. Section 1002(a) provides that:
[N]otwithstanding any other provision or rule of law, and subject to the provisions of this Act, each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b).1