LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 18
by the state or federal government when valuing those resources for purposes of calculating
damages. Similarly, a state’s loss of revenue derived from fishing licenses would not necessarily
be a consideration by the federal government when valuing the loss of a river to pollution.
4. Municipal and Local Trustees
Although the federal government, state government and Indian tribes are empowered to
recover NRD, prior to the SARA Amendments to CERCLA, courts broadly read the NRD
provision of the statute as granting municipalities standing to pursue NRD claims. 63
However,
with the enactment of the amendments, courts’ interpretation of a municipality drastically
changed:
As originally enacted, CERCLA called for authorized representatives of the
state to act as natural resource trustees but did not outline a procedure for
appointing such trustees. Under SARA, the governor of each state was charged
with choosing an official to act on the public’s behalf as trustee and to assess
damage to natural resources . . . [T]his change turned out to be significant to the
courts dealing with standing for municipalities. The courts interpreted this
trustee-appointing mechanism to be the only way a municipality could be a
natural resource trustee under CERCLA. 64
In Mayor and Council of the Borough of Rockaway v. Klockner & Klockner, the
municipality filed suit under CERCLA for recovery of costs associated with the defendants’
contamination of groundwater wells. 65
The court ultimately determined that the SARA
amendments had “clarified” the issue of standing with regard to CERCLA claims, stating that
“only a ‘state official,’ specifically appointed by the governor of the state, may be an ‘authorized
representative’ for purposes of bringing an action to recover for natural resource damages.
63 Mayor and Board of Aldermen of the Town of Boonton v. Drew Chemical Corporation, 621 F. Supp. 663, 667
(D.N.J. 1985).
64 Michael J. Wittke, Municipal Recovery of Natural Resource Damages Under CERCLA, 23 B.C. ENVTL. AFF. L.
REV. 921, 929 (1996).
65 811 F. Supp. 1039 (D.N.J. 1993).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM