LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 6
more seriously and also understand that the public’s right to its property or “commons” is
important for both monetary and nonmonetary reasons. 8
Finally, natural resources that were
formerly viewed with little interest or real understanding, such as groundwater, have generated a
special need for attention in light of the crucial role they will play in the future of this country’s
survival. 9
The enactment of the Comprehensive Environmental Compensation, Response and
Liability Act of 1980 (“CERCLA” or “Superfund”) 10 was an attempt by Congress to respond to
the massive pollution and contamination of the environment in the United States. However, as
the past twenty-five years has demonstrated, CERCLA has not been effective in enabling the
recovery of damages for pollution and restoring injured natural resources. 11
In fact, CERCLA
has actually enabled polluters to prolong any meaningful cleanup of natural resources by
permitting them to engage in years of ineffective and mostly useless remediation and feasibility
studies. 12
Moreover, the response time of CERCLA is poor, thus prolonging what is already a
tediously slow road to restoration. 13
The pursuit of NRD is the last chance to accomplish what the United States originally
wanted to do with Superfund - - to cleanup the nation’s natural resources and make the polluters
8 See Allan Kanner, The Public Trust Doctrine, Parens Patriae and the Attorney General as the Guardian of the
State’s Natural Resources, 16 DUKE J. ENVTL. L. & POL’Y F. Error! Main Document Only.57, 59 (2005).
Historically, the public “common” was a public area used by villagers for livestock grazing. Additionally, the
villagers had the right to “cut wood, to fish, and to cut peat or turf for fuel.” Id. The common area was used and
regulated by the villagers for purposes of mutual sustainability and benefit.
9 Id.
10 42 U.S.C. §§ 9601-9675.
11 See generally, Allan Kanner, Rethinking Superfund, 20 NAT’L ASS’N ENVTL. PROF’LS NEWS 19 (May-June 1995).
12 Robert W. McGee, Superfund: It’s Time for Repeal After a Decade of Failure, 12 UCLA J. ENVTL. L. & POL’Y
165, 170 (1993).
13 Id. at 169.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM