LSI 2010 NRD Santa Fe final conference binder 072110.pdf

David J. Lazerwitz of Farella Braun + Martel LLP Speaker 6: 3
Defenses to CERCLA NRD Claims
• Defenses provided by or derived from statute
• Standing & indispensable parties
• Issues of proof (causation, injury, baseline)
• Restriction on the use of damages
• Statute of limitations
• Pre-enactment contamination (pre-1980)
• Impermissible attack on the remedy
• Acts of god, war, act/omission of third-party
• Federally permitted release
• Defenses specific to common law claims
• Conflict preemption
• Procedural issues
• Third party contribution
5
Standing to Bring an NRD Claim
• “Natural resources” definition:
• “land, fish, wildlife, biota, air, water, ground water, drinking
water supplies, and other such resources belonging to,
managed by, held in trust by, appertaining to, or
otherwise controlled by the United States…, any State
or local government or Indian tribe, or any foreign
government…” 42 USC 9601(16).
• Two components of standing:
• Must be a designated trustee
• Must have a management or stewardship interest in the
resource
• Exercise “substantial degree” of control – not just use
• Fact intensive inquiry (Coeur d’Alene Tribe)
• Focus on which trustee exercises day-to-day control of the
relevant resources.
6
Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM