LSI 2010 NRD Santa Fe final conference binder 072110.pdf

David J. Lazerwitz of Farella Braun + Martel LLP Speaker 6: 5
Issues of Proof and Causation
• Trustee bears the burden of proof
• Can trustee show “injury or loss” of resources?
• DOI definition of injury: “a measurable adverse change, either
long- or short-term, in the chemical or physical quality or the
viability of a natural resource . . .” 43 CFR 11.14(v)
• Can be shown by either (1) empirical evidence of adverse
change in a particular case; or (2) reliance on a prior
regulatory determination (e.g., water quality standards)
• Examples: population decline, FDA “tolerance level” for
consumption, MCLs under SDWA
• Can an environmental baseline be established?
• Only entitled to damages “resulting from” release
• Condition of ecological services “but for” the release; not
pristine conditions but actual, pre-release conditions
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Issues of Proof and Causation, cont.
• Can causation be established?
• Whether the injury was caused, in whole or part, by the
defendant’s release
• Level of proof unresolved:
• Release was the “sole or substantially contributing cause of the
injury” (Montrose)
• Other courts have allowed lesser “contributing factor” standard,
particularly in co-mingling cases
• “More than a de minimus amount” – such that some injury
would have occurred if only defendant’s release had occurred.
(Couer)
• Can the injury be quantified?
• Admissibility of evidence per FRE 702/Daubert (or Frye)
• Scientific testimony must be based on reasoning or
methodology that is scientifically valid and can properly be
applied to the facts at issue.
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Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM