LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 19
SARA thus confirms Congress’ intent that Section 107(f) inure only to the benefit of the states
and not their political subdivisions.” 66
Courts have reached a similar finding as to the standing
of a municipality when a state statute is comparable or analogous to CERCLA. 67
Municipalities,
however, are not completely deprived of standing in the context of NRD. If a municipality
wishes to recover NRD under CERCLA or a similar state statute, it may still seek designation as
“trustee” by the state. In the alternative, municipalities may seek NRD by asserting common law
claims. 68 5. Citizen Suits
As noted earlier in the article, an individual who owns a natural resource has standing as
a property owner to file suit to recover for any NRD. However, a private party’s capability of
filing suit to recover damages for publicly owned natural resources is severely limited. One of
the only avenues by which a private citizen or entity may pursue a claim for injury to publiclyowned
natural resources is through a citizen suit. 69
At the federal level, citizen suits generally
occur in one of three contexts:
66 Id. at 1049; see also Town of Bedford v. Raytheon Company, 755 F. Supp. 469, 472-473 (D. Mass. 1991); City of
Toledo v. Beazer Materials and Services, Inc., 833 F. Supp. 646, 652 (N.D. Ohio 1993); Borough of Sayreville v.
Union Carbide Corporation, 923 F. Supp. 671, 681 (D.N.J. 1996).
67 City of Portland v. Boeing Company, 179 F. Supp. 2d 1190, 1202 (D. Or. 2001); The Consolidated City of
Indianapolis v. Union Carbide Corporation, 2003 WL 22327832, No. 1:02-cv-1340-LJM-WTL, *3 (S.D. Ind. Oct.
8, 2003).
68 Peter H. Lehner, Act Locally: Municipal Enforcement of Environmental Law, 12 STAN. ENVTL. L. J. 50, 75 (1993).
69 “All major environmental laws, specifically the Clean Air Act, the Federal Water Pollution Control Act,
commonly known as the Clean Water Act, the Resource Conservation and Recovery Act, and the Comprehensive
Environmental Response, Compensation and Liability Act, as well as a host of less well known environmental laws,
such as the Toxic Substances Control Act, and the Surface Mining Control and Reclamation Act, contain essentially
the same citizen suit provisions. They all trace their origin to section 304 of the Clean Air Act.” Robert D. Snook,
Environmental Citizen Suits and Judicial Interpretation: First Time Tragedy, Second Time Farce, 20 W. NEW ENG.
L. REV. 311, 313-314 (1998).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM