LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 14
by the constitution to the general government.” 44
On the contrary, there is no inherent right held
by the federal government to act as trustee over natural resources. Historically, in order to
pursue NRD, the federal government has been limited to actions permitted by legislative
mandates that confer upon it trustee status over natural resources. 45
Despite this fact, the federal
government has managed to carve out a significant role as trustee in the pursuit of NRD claims.
A variety of environmental legislation confers trustee status upon the federal government
and its agencies.
CERCLA, 46 the Oil Pollution Act (“OPA”) 47 and the Clean Water Act
(“CWA”) 48 all permit the designation of both federal and state trustees to pursue NRD claims.
The statutes do not identify specific trustees; however, particular trustees may be designated by
other means. For example, pursuant to CERCLA, Executive Order 12580 and the amendment
thereto designates certain federal trustees to implement the statute, including the Departments
and Secretaries of State, Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and
Human Services, Transportation, Energy and the Environmental Protection Agency. 49
One of the biggest problems associated with federal trustees is that they are not bound by
any specific rules or principles requiring them to balance public interests - - a fact that can give
rise to actions by federal trustees that are inconsistent with the fiduciary nature of trusteeship.
“Instead of holding federal statutory NRD trustees to a strict fiduciary duty, courts have granted
44 41 U.S. 367, 410 (1842).
45 Laura Rowley, NRD Trustees: To What Extent Are They Truly Trustees? 28 B.C. ENVTL. AFF. L. REV. 459 (2001).
46 42 U.S.C. § 9607(f)(1).
47 33 U.S.C. § 2706(b).
48 42 U.S.C. § 1321(f)(5).
49 See Exec. Order No. 12580, 52 Fed. Reg. 2923 (Jan. 29, 1987) and No. 13016, 61 Fed. Reg. 45871 (Aug. 28,
1996)); see also 40 C.F.R. § 300.600 et seq.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM