LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 22
statute provides liability for “any damage or injury to the natural resources of the state, including,
but not limited to, marine and wildlife resources, caused by the discharge or leakage of
petroleum, fuel oil, or hazardous substances.” 79
Minnesota’s statute holds any discharger of
hazardous substances liable for “[a]ll damages for any injury to, destruction of or loss of natural
resources.” 80
A summary of these statutes indicates that most are aimed at protecting the natural
resources under the public trust. However, when definitions of natural resources are too narrow,
there are resulting limitations on the recovery of NRD. Accordingly, these statutes suffer some
of the same problems as the public trust relative to the scope of natural resources protected.
Even the most comprehensive statutes limit recovery to hazardous substance damage. The issue
of scope is one of the greatest limitations on the recovery NRD. Thus, the question then follows:
how should this problem be addressed?
New Jersey has managed to overcome the problem of scope by broadly defining natural
resources in its Spill Compensation and Control Act (“Spill Act”). “Natural resources” are
broadly defined as “all land, fish, shellfish, wildlife, biota, air, waters and other such resources
owned, managed, held in trust or otherwise controlled by the State.” 81 Indeed, among the various
state laws protecting natural resources, New Jersey has one of the most potent. The New Jersey
Department of Environmental Protection is authorized by statute to commence civil actions for
the “cost of restoration and replacement, where practicable, of any natural resource damaged or
79 CAL. HARB. & NAV. CODE § 293 (West Supp. 1989).
80 MINN. STAT. ANN. § 115B.04 (1)(c) (West 1985).
81 N.J.S.A. 58:10-23.11b.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM