LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 26
successfully asserted in New Jersey environmental cases. Punitive damages are available in
environmental actions involving deliberate acts or omissions committed with the knowledge of a
high degree of probability of harm, reckless indifference to consequences, or where there has
been “such a conscious and deliberate disregard of the rights of others that his conduct may be
called willful or wanton.” 99
Indeed, state statutory limitations on the availability of punitive
damages have specifically excluded “environmental torts.”
C. CAUSATION
When a common law claim for NRD is brought, a plaintiff must prove causation with
respect to the claim as required by the common law. When a trustee brings NRD claims under
federal legislation, the degree of causation must be gleaned from the statute. If the statute does
not specify the standard of proof necessary for causation, it is left to the courts to determine what
is required. In both cases, causation is not an especially difficult hurdle. The causation
requirement ensures that the conduct complained of is appropriately linked to the wrong
claimed-the natural resource injury, nuisance or trespass.
CERCLA, for example, does not specify the standard of proof necessary for showing that
a particular discharge or release caused a particular injury to a NRD trustees seeking restoration
under §107(a)(4)(c) must prove injury to natural resources “resulting from” a release of a
hazardous substance. Courts have generally required only a minimal connection between the
responsible party and the response costs incurred in connection with a release. 100
99 Id.
100 See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146 (1st Cir. 1989).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM