LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 32
misconduct. 122
NRD is defined by CERCLA as the compensation for the “[i]njury to,
destruction of, or loss of natural resources, including the reasonable costs of assessing such
injury.” 123 CERCLA’s congressional hearings are filled with testimony that the NRD provisions
should measure society’s full loss from damaged or destroyed natural resources, not just
damages capable of market valuation. 124 This is fundamental to deterring wrongful conduct.
125
This broader concept is reflected in § 301(c)(2) of CERCLA, which requires damage assessment
procedures to identify the extent of short- and long-term, direct and indirect injury, destruction,
or loss. 126
Thus, Congress explicitly stated that recoverable injuries were not limited solely to
use or market value but also indirect injury (e.g., the intrinsic value of a natural resource).
Comments also urged that the legislation shift the burden of any such losses from victims to
responsible parties, consistent with concepts of strict liability. 127 If a response action fails to
provide a complete and whole remedy for injury to a natural resource, damages may be
122 See, e.g. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521 (1992)(quoting San Diego Bldg. Trades Council v.
Garmon, 359 U.S. 236, 247 (1959))(“[t]he obligation to pay compensation can be, indeed is designed to be, a potent
method of governing conduct and controlling policy.”).
123 42 U.S.C. § 9601(6), 9607(a)(4)(C).
124 See, e.g., OIL AND HAZARDOUS SUBSTANCES LIABILITY AND OIL POLLUTION LIABILITY: EXCERPTS FROM
HEARINGS ON H.R. 29 AND H.R. 85 BEFORE THE SUBCOMM. ON COAST GUARD AND NAVIGATION OF THE HOUSE
COMM. ON MERCHANT MARINE AND FISHERIES, 96th Cong., 1st Sess. 119 (1979) (statement of James N. Barnes,
Center for Law and Social Reform).
125 See generally Allan Kanner & Tibor Nagy, Measuring Loss of Use Damages in Natural Resource Damage Actions,
30 COLUMBIA J. ENVTL. L. Error! Main Document Only.(2005) Vol. 30, No. 2, p. 417.
126 42 U.S.C. § 9651(c)(2).
127 Supra note 123, at 213, 214, n. 23 (statement of Sarah Chasis, National Advisory Committee on Oceans and
Atmosphere).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM