LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 16
The construction of federal environmental laws seems to indicate that particular natural
resources are the responsibility of the federal government and other natural resources fall within
the ambit of state responsibility. 54
However, the language utilized in these statutes fails to clarify,
for instance, whether natural resources located on federally-owned property belong to the federal
government or the state wherein the property is located. 55
One of the primary problems with
regard to multiple trustees is linking the contamination problem of a particular resource to a
particular trustee. For example, the Department of the Interior (“DOI”) and the Department of
Commerce both have trustee status with regard to the protection of migratory birds. 56
As a result,
a state may share trustee status over natural resources when there has been an injury to migratory
birds stemming from the contamination of wetlands. 57
Presumably, the federal government may
recover damage to the birds, while the state trustee may recover damages for injury to the
wetlands, however, due to the principles prohibiting a double recovery for NRD, the two trustees
are precluded from both recovering for the birds and the wetlands.
While there are more attempts at coordination now, overlapping trustee authority still
inhibits action. At some sites, parties have been unable to achieve prompt resolution of NRD
issues at the time that remedial issues are being settled with the EPA or a state, due to the need
for multiple trustee signoffs. The difficulty of resolving overlapping jurisdictional issues is
54 Marc G. Laverdiere, Natural Resource Damages: Temporary Sanctuary for Federal Sovereign Immunity, 13 VA.
ENVTL. L. J. 589, 592 (1994)(“For example, under CERCLA, liability for damaging these resources is ‘to the United
States Government and to any State for natural resources within the State or belonging to, managed by, controlled
by, or appertaining to such State.’”).
55 Id.
56 Thomas L. Eggert & Kathleen A. Chorostecki, Rusty Trustees and the Lost Pots of Gold: Natural Resource
Damage Trustee Coordination Under the Oil Pollution Act, 45 BAYLOR L. REV. 291, 305 (1993).
57 Id.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM