LSI 2010 NRD Santa Fe final conference binder 072110.pdf

David J. Lazerwitz of Farella Braun + Martel LLP Speaker 6: 10
Defenses to Common Law Claims
• Conflict preemption
• Where it is (1) impossible to comply with both federal and
state law; (2) or where state law stands as an obstacle to
congressional objectives, state law claims are barred
• Savings clauses do not apply to preserve claims
• Potential conflicts may exist with:
• Objective of the CERCLA NRD scheme
• Methodology of CERCLA NRD scheme
• Equitable defenses?
• Generally prohibited under CERCLA – defenses must be
found in the statute – but not common law (e.g., mitigation
of damages, estoppel)
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New Mexico v. General Electric, et al.
• Historically contaminated aquifer (VOCs)
• NPL designation in 1983
• Response action required pump/treat to MCLs
• Replacement public supply well
• NRD and common law actions filed in 1999
• Initial damages theories based on lost tax revenues,
diminished property values, cost to construct surface
reservoir (+/- $4 billion)
• Issues:
• What is the State’s interest in groundwater and aquifer?
• Can the State could show injury/harm to the resource?
• What is the measure of damages to compensate the injury?
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Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM