LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 33
recovered for such. 128
Any recovery had by a trustee for NRD “must be used to restore, replace,
or acquire the equivalent” of the injured natural resources. 129
There are three primary categories of damages for a trustee to consider: restoration,
compensatory restoration, and assessment and other transaction costs.
a. Restoration
Restoration, or primary restoration costs, involves the cost of any action, or combination
of actions, to restore, rehabilitate, replace, or acquire the equivalent of the injured natural
resources and services in a “baseline state.” Essentially, this is the cost of restoration of the
resource to its pre-damage condition, taking into account natural recovery. Replacement can be
a viable action in this context, so long as the citizens of a state do not otherwise suffer. For
instance, replacing a North Louisiana greenspace with an equivalent one in South Louisiana does
little to assuage the damage to residents of North Louisiana. A state should have the right to full
restoration of natural resources, however, even if it will ultimately be more costly than
replacement. This idea is consistent with the notion that there is a preference for a complete
restoration of the damaged natural resource, rather than the creation of an entirely new one.
b. Compensatory Restoration
In addition, there are use and non-use 130 compensatory restoration values that must be
repaid. These damages involve the provision of additional restoration of injured resources in
order to compensate for lost natural resource functions and services from the time of
128 See Kanner, supra note 14, at 102.
129 42 U.S.C. § 9607(f)(1).
130 “Nonuse values are values people may hold for natural resource services that are independent of any anticipated
use of the resource.” William H. Desvousges and Janet C. Lutz, Compensatory Restoration: Economic Principles
and Practice, 42 ARIZ. L. REV. 411, 412 (2000).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM