LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 36
to making the public whole, and thus is perceived by the regulated community to be punitive
rather than productive.
On the other hand is the more Industry-friendly approach of NOAA. Under the NOAA
approach, NRD now focuses on remediation of harm rather than monetization of claims. In
addition, it utilizes an open process that requires public comment, and encourages cooperation
with responsible parties rather than litigation. The NOAA regime is “restoration based,” that is,
it establishes restoration of the damaged natural resources as the goal, and provides the agency
and the responsible party a great deal of flexibility to develop a plan to move forward and
achieve it. In general, there is more room for disagreement regarding valuation of loss of use
claims. 137
F. DEFENSES
Because the pursuit of NRD is relatively new territory, one of the areas with the greatest
potential for development and change is the defenses to liability. As NRD cases are more
frequently litigated, new, creative and complex defenses will be asserted.
Plaintiffs can
anticipate a variety of defenses that may be offered by defendants in NRD cases. A defendant
may argue, for example, that if a groundwater resource is not currently being used by the public,
then there has been no harm suffered if it is contaminated. Defendants may also contest liability
when there are multiple polluters of a single resource, thereby making it difficult to attribute
particular contamination to specific source. Furthermore, a defendant may argue that a remedy is
not reasonable or proportionate to the harm, i.e. when restoration costs far exceed the market
value of the property.
1. Statutory Defenses
137 See Kanner supra note 124.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM