LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 15
them agency deference.” 50
Such inconsistency with principles of trusteeship and fiduciary duties
is evidenced in cases where the trustee does not spend all monies recovered for NRD to restore
or recreate the injured natural resource. 51
While a trustee’s decision to not spend any monies
recovered on the restoration of the damaged natural resource clearly violates the duties imposed
upon federal agents as trustees, the most minimal restoration efforts seem to “satisfy” a trustee’s
fiduciary duty despite the fact that the natural resource remains polluted. 52
As a result, the public,
as the beneficiary of the trust, is deprived of the full use and benefit of the natural resource and is
left with no other recourse since damages have already been recovered for the natural resource’s
injury.
3. Overlapping Authority
Since federal trusteeship is derived from a number of overlapping federal statutes, more
than one federal trustee will likely be involved at a given site, and overlaps with state and Indian
tribe trustees frequently occur as well. The Superfund Amendments and Reauthorization Act of
1986 (“SARA”), which amended CERCLA, requires the EPA to notify trustees of possible
natural resource impacts and to coordinate its investigatory work with the trustees. 53
Despite this
fact, an initial obstacle in the pursuit of NRD is the coordination of trustee activities at a given
site and the determination of which trustee, if any, will be the lead.
50 Rowley, supra note 45, at 486.
51 “The best example of the futility in trying to identify where an NRD trustee has violated the bounds of the
statutory authority, and thus violated its fiduciary duty, is found in the case of the 1989 Exxon Valdez oil spill. The
Spill Trustee Council recovered nine hundred million dollars from the settlement of a suit under the CERCLA and
CWA NRD provisions. Due to the magnitude of the disaster, the Spill Trustee Council used the money for a variety
of purposes, but it is unclear whether all the uses were for the end result of natural resource restoration.” Id. at 487.
52 Id. at 486.
53 See 42 U.S.C. § 9604(b)(2).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM