LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 20
(1) suits brought by private citizens against persons alleged to be in violation of a
federal environmental law; (2) suits brought by private citizens against the
executive branch of the federal government, typically the Environmental
Protection Agency (EPA) alleging that the federal government has failed to
perform a nondiscretionary duty in implementing an environmental law; or (3)
suits brought by private citizens against a federal agency directed at the agency’s
own polluting activities. 70
Because citizen suits are brought to vindicate rights held by the public, private
individuals who pursue claims under these provisions do not have the same rights and relief as
those afforded under private causes of action. 71
In addition, under the natural resource
provisions of federal laws, individual plaintiffs are precluded from recovering NRD. 72
Thus,
individual plaintiffs may file a citizen suit to compel a trustee to seek NRD; however, such
plaintiffs may not recover NRD.
Likewise, some state statutes may also have similar citizen suit provisions that permit
individuals to file actions for environmental contamination. The New Jersey Environmental
Rights Act (“ERA”), 73 for example, permits an individual to file an action against “any other
person alleged to be in violation of any statute, regulation or ordinance which is designed to
prevent or minimize pollution, impairment or destruction of the environment” for injunctive or
equitable relief. 74
The ERA, however, does not “confer any substantive rights . . . Rather, it
70 Shay S. Scott, Combining Environmental Citizen Suits & Other Private Theories of Recovery, 8 J. ENVTL. L. &
LITIG. 369, 372 (1994).
71 Id. at 378. (“They thus do not include toxic tort suits for personal injury or property damage. They also do not
include private suits for the personal losses suffered when public resources are damaged; for example, they do not
include suits by fishermen when public fisheries are damaged by pollution. While losses to people from pollution
are important, they are different from the losses to the environment itself.”).
72 See, e.g., In re Burbank Environmental Litigation, 42 F. Supp. 2d 976, 980 (C.D. Cal. 1998)(“Under CERCLA,
only natural resource trustees acting on behalf of the federal government, the state, and certain Indian tribes may
bring an action for damage to natural resources.”).
73 N.J.S.A. 2A:35A-1 et seq.
74 N.J.S.A. 2A:35A-4.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM