LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 41
In an effort to avoid the payment of damages for the destruction of natural resources, a
defendant may argue that the site remediation must be completed before NRD can be assessed.
While a defendant engages in countless site assessments and feasibility studies, the loss of use of
the natural resource and the continued degradation of the site is being ignored. Consequently, a
defendant is actually attempting to postpone a realization of its liability under the guise of
“action.” However, as discussed earlier, site remediation can last for years without any actual
cleanup occurring.
A defendant may argue that since it is engaged in site remediation, a cost-benefit analysis,
which is often used in the context of site remediation, is appropriate for the assessment of NRD.
However, no court has ever used a cost-benefit analysis to value NRD. If a cost-benefit analysis
is used to determine the amount of money that is recoverable for NRD, the public will almost
never be fully restored because the nonmonetary value of the natural resources cannot be fully
and fairly calculated.
4. Preemption of Federal Law
When a trustee files a claim for NRD pursuant to state law, one common defense that a
defendant may assert is that the law on which the claim is based is preempted by federal law.
Generally, there are three ways in which a state law may be preempted by federal law. First,
Congress can explicitly state in a federal statute that it preempts state law. 161
Second, state law
that legislates in an area that Congress has exclusively reserved to the federal government will be
preempted. 162 Third, state law will also be preempted if it conflicts with federal law. 163 “The
161 Attorney General v. Consumers Power Company, 508 N.W.2d 901, 902 (Ct. App. Mich. 1993).
162 Id.
163 Id.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM