LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 45
understanding, coupled with the knowledge that the preservation of groundwater has become
crucial to the survival of our communities, has paved the way for groundwater’s inclusion within
the bounds of the public trust doctrine.
Additionally, it can be argued that the same reason the public trust was first applied to
navigable waters, in order to foster the development of early American settlements, is precisely
the same reason that the public trust doctrine should now encompass the protection of
groundwater. Because the public trust doctrine “should not be considered fixed or static, but
should be molded and extended to meet changing conditions and the needs of the public it was
intended to benefit,” 180 the scope of the doctrine should remain broad and should extend to all
resources that provide some benefit to the public, especially when basic human survival is
dependent on such a resource.
6. Government Contractor Defense
One of the greatest ironies when considering NRD is the fact that, frequently, pollution
emanates from facilities that provide services or products that have significant value or are
necessary to our society for purposes of economics and development. The pollution associated
with these products or services may be characterized by polluters as a sort of “necessary evil.” 181
It follows that some of these services and products required by the general public are also
required by the government. A government’s need for such products or services is especially
critical, for example, when the country is engaged in a war. Furthermore, it has often been the
180 Borough of Neptune City, 294 A.2d at 54.
181 This characterization of pollution begs the question of whether the evil was truly avoidable and necessary. There
is a predisposition to assume that polluters “did not know any better” when polluting the environment prior to the
enactment of environmental regulations. The reality, however, is that the notion of “necessary evil” cannot be taken
at face value. Polluters must be held accountable for all of their actions, whether environmental regulations existed
at the time of pollution or not.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM