LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 34
contamination through the time the resource is restored. 131
Compensatory restoration is not
directly defined in the statutory language of the OPA and CERCLA, although it is discussed in
the regulations developed under each of these statutes.
The OPA regulations, promulgated by the National Oceanic and Atmospheric
Administration (NOAA) define restoration as “any action or combination of
actions, to restore, rehabilitate, replace or acquire the equivalent of injured
natural resources and services.” These same regulations identify “compensatory
restoration” as included within restoration generally and define it as “action(s)
taken to make the environment and the public whole for services losses that
occur from the date of the incident until recovery of the injured natural
resources.” 132
Due consideration must be given to discern the unique value of the natural resources of
the state. Natural resources are more than mere property claims. They are inextricably
interwoven into the fabric of our ecology and the quality of our lives as we steward them from
one generation of our citizens to the next. Natural resources must be valued both in the present
and prospectively.
If these prospective consequences may, in reasonable probability, be
expected to flow from the past harm, the state is entitled to be paid for them. 133
Loss of use, or
benefit to polluter, both damage the people during the period of impairment and restoration.
These damages should be equal to the benefit derived or savings to the parties damaging the
natural resource. If, for instance, a natural resource was damaged by one thousand dollars to
save or make one million dollars, this should be recaptured to the extent not otherwise covered.
This item of damages forces the wrongdoer to internalize the costs of pollution by usage fee or
131 43 C.F.R. § 11.83 (2005).
132 See Kanner, supra note 14, at 103 (citations omitted).
133 See Coll v. Sherry, 148 A.2d 481, 486 (N.J. 1959).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM