LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 21
grants private plaintiffs standing to enforce other New Jersey environmental statutes ‘as an
alternative to inaction by the government which retains primary prosecutorial responsibility.’” 75
Under the ERA, a citizen may file suit to compel the government to act to recover environmental
damages, however, the citizen may not personally seek damages. Although citizen suits may be
a useful tool in compelling government action, they may not be used to recover NRD - - the
power to bring actions to recover NRD is vested solely with governmental trustees.
B. CAUSES OF ACTION
1. State Statutory Causes of Action
In addition to NRD actions brought pursuant to federal laws, states may also bring
actions under state statutes. It follows that if a state may sue on behalf of its natural resources, it
may also legislate to protect them or provide for compensation in the event they are lost or
destroyed. Accordingly, some forty-five states provide a public cause of action for damage to
natural resources. 76
These statutes vary widely in scope. New York’s statute, for example, applies only to
criminal violations; 77 the laws of Maine and Massachusetts apply only to oil spills. 78 The most
comprehensive of these statutes arguably are those of California and Minnesota. California’s
75 Klockner & Klockner, 811 F. Supp. at 1054 (quoting Superior Air Products Company v. NL Industries, Inc., 522
A.2d 1025, 1032 (N.J. Super. App. Div. 1987)).
76 See William S. Roush, Jr., 2 TOXIC TORTS. PRAC. GUIDE § 25.11 (2005). For example, in Com. of Puerto Rice v.
S.S. Zoe Colocotroni, 628 F.2d 652 (1st Cir. 1980), a Puerto Rican statute provided the basis for assessing damages
for the discharge of oil. In that case, the circuit court stated, “where the Commonwealth of Puerto Rico has thus
legislatively authorized the bringing of suits for environmental damages, and has earmarked funds so recovered to a
special fund, such an action must be construed as taking the place of any implied common law action the
Commonwealth as trustee, might have brought.” Id. at 672.
77 See N.Y. Envtl. Conserv. Law. § 71-2723 (McKinney 1981).
78 See, e.g., Maine Oil Discharge Prevention and Pollution Control Act, ME. REV. STAT. ANN. tit. 38 § 551 (1978);
Massachusetts Rules for the Prevention and Control of Oil Pollution in the Waters of the Commonwealth § 9.02
(1973).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM