Remedying CERCLA's Natural Resource Damages Provision: Incorporation of the Public Trust Doctrine into Natural Resource Damage Actions
By Gina M. Lambert and Anthony R. Chase
INTRODUCTION
When Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), it ushered in a sweeping approach to controlling the environmental effects of improper hazardous waste disposal. CERCLA's cleanup provisions, which focus on removal and remediation of hazardous substances from inactive hazardous waste sites, have progressed through more than a decade of litigation and a great deal of public debate. However, CERCLA's natural resource damage provisions have not shared this same degree of progress.
In a statutory analogue to the common law public trust doctrine, CERCLA section 107(f) places the responsibility of pursuing a natural resource damage action (NRDA) on federal and state trustees. These appointed trustees may bring an action under CERCLA or the Clean Water Act (CWA) to recover money damages when the release of a hazardous substance causes “injury to, destruction of, or loss of natural resources,” which are owned, managed, held in trust or otherwise controlled by the United States, a state, a local government or an Indian tribe. CERCLA's definition of natural resources embraces “land, fish, wildlife, biota, air, water, ground water, drinking water supplies and other such resources,” thus providing the possibility of recovery for pollution-related damages to a broad scope of natural resources.
Yet despite such an apparently sound statutory framework and broad reach, CERCLA's damage provisions have failed to fulfill their promise. Some critics suggest that until recently, these provisions have “done little more than gather dust.” To date, trustees have obtained a judgment for natural resource damages in only one case, and no court has ever publicly reviewed a damage assessment. One public trustee for natural resources, the National Oceanic and Atmospheric Administration (NOAA), appears to be taking strides to reverse this trend.
This Article explores NOAA's renewed initiative in the context of changes to CERCLA and revision of enforcement strategies. Part II of this Article provides an overview of NRDAs. After defining NRDAs in section A, section B details their statutory framework. Section C then examines CERCLA's natural resource damage assessment regulations and the results of two important recent legal challenges to these rules.
Part III of this Article highlights NOAA's efforts as a public trustee to bring NRDAs in four major actions. In Part IV, this Article explores factors bearing on prior agency inactivity and examines recent changes that have revived interest and activity in NRDAs. Part V recommends integration of the federal statute with the state law-based public trust doctrine to further improve the federal government's track record in NRDAs. The Article concludes that with strengthening of CERCLA's damage provisions, NRDAs could rise to the forefront of environmental litigation, creating an environmental wave of the future.
When Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), it ushered in a sweeping approach to controlling the environmental effects of improper hazardous waste disposal. CERCLA's cleanup provisions, which focus on removal and remediation of hazardous substances from inactive hazardous waste sites, have progressed through more than a decade of litigation and a great deal of public debate. However, CERCLA's natural resource damage provisions have not shared this same degree of progress.
In a statutory analogue to the common law public trust doctrine, CERCLA section 107(f) places the responsibility of pursuing a natural resource damage action (NRDA) on federal and state trustees. These appointed trustees may bring an action under CERCLA or the Clean Water Act (CWA) to recover money damages when the release of a hazardous substance causes “injury to, destruction of, or loss of natural resources,” which are owned, managed, held in trust or otherwise controlled by the United States, a state, a local government or an Indian tribe. CERCLA's definition of natural resources embraces “land, fish, wildlife, biota, air, water, ground water, drinking water supplies and other such resources,” thus providing the possibility of recovery for pollution-related damages to a broad scope of natural resources.
Yet despite such an apparently sound statutory framework and broad reach, CERCLA's damage provisions have failed to fulfill their promise. Some critics suggest that until recently, these provisions have “done little more than gather dust.” To date, trustees have obtained a judgment for natural resource damages in only one case, and no court has ever publicly reviewed a damage assessment. One public trustee for natural resources, the National Oceanic and Atmospheric Administration (NOAA), appears to be taking strides to reverse this trend.
This Article explores NOAA's renewed initiative in the context of changes to CERCLA and revision of enforcement strategies. Part II of this Article provides an overview of NRDAs. After defining NRDAs in section A, section B details their statutory framework. Section C then examines CERCLA's natural resource damage assessment regulations and the results of two important recent legal challenges to these rules.
Part III of this Article highlights NOAA's efforts as a public trustee to bring NRDAs in four major actions. In Part IV, this Article explores factors bearing on prior agency inactivity and examines recent changes that have revived interest and activity in NRDAs. Part V recommends integration of the federal statute with the state law-based public trust doctrine to further improve the federal government's track record in NRDAs. The Article concludes that with strengthening of CERCLA's damage provisions, NRDAs could rise to the forefront of environmental litigation, creating an environmental wave of the future.