LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 43
Preemption of state law often arises in the context of NRD when the resource that has
been injured is a navigable body of water, thus seemingly invoking admiralty and maritime
issues. However, courts have consistently held that state actions are not preempted by federal
law when state law does not conflict with federal law and Congress has not specifically
legislated the issue. 170
In general, federal environmental statutes are not enacted to supplant state
statutory and common law causes of action; rather, they are meant to be supplements to ensure
that trustees have adequate means by which they may seek and recover NRD.
5. Scope of the Public Trust Doctrine
When NRD claims are brought pursuant to the public trust doctrine, it is highly likely that
a defendant will contest the scope of the doctrine’s application. As noted in section II.A.1, infra,
in early American cases, the public trust doctrine was initially applied to suits involving the
protection of navigable waters. 171
The doctrine has evolved over time, however, and has been
expanded to include the protection of, not only navigable waters, but other resources, including
wildlife 172 and beaches. 173
Some states have even extended the doctrine to include recreational
170 In re Ballard Shipping Company v. Beach Shellfish, 32 F.3d 623, 631 (1st Cir. 1994)(holding that the Rhode
Island Environmental Injury Compensation act that permits state law remedies for damage resulting from oil
pollution is not preempted by federal maritime law); In the Matter of Nautilus Motor Tanker Co., Ltd., 900 F. Supp.
697, 704 (D.N.J. 1995)(holding that New Jersey’s common law with respect to the recovery of purely economic
losses “is not preempted as impermissibly prejudicing federal maritime law). But see State of Maryland v. Kellum,
51 F.3d 1220, 1228 (4th Cir. 1995)(federal law preempts state natural resources code when it alters the rights and
liabilities afforded to the parties under federal maritime law).
171 For a more complete discussion of the evolution of the public trust doctrine, see generally Kanner, supra note 8.
172 In re Steuart Transportation, 495 F. Supp. 38, 40 (E.D. Va. 1980).
173 Borough of Neptune City v. Borough of Avon-By-The-Sea, 294 A.2d 47, 55 (N.J. 1972).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM