LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 55
Some defendants have even gone so far as to question a state’s inherent right to protect its
natural resources as a public trustee. In New Jersey Department of Environmental Protection v.
ExxonMobil Corporation, the defendant made the following argument:
State ownership of natural resources derives from the sovereign rights of the
British Crown and of the United States, and is governed by federal law, since
under the equal footing doctrine these rights must be the same in all states.
Plaintiffs’ expansive theories of natural resource ownership and damages go
beyond the sovereign rights transmitted to New Jersey by the British Crown at
independence in 1776, and would offend the equal footing doctrine if they were
upheld. 217
ExxonMobil essentially argued that New Jersey exceeded its authority by attempting to bring
NRD claims pursuant to the New Jersey Spill Act and common law. This case is currently
pending in New Jersey state court, however, given New Jersey’s historical pattern of upholding
the State’s authority to bring NRD claims, it is unlikely this defense will be successful.
III.
CONCLUSION
The preservation, protection and reclamation of natural resources have become
increasingly more important as the devastating impact of contamination is revealed.
The
multiplying number of NRD cases that are filed each year serves as a testament to this fact. The
process of resolving these cases will force the courts and litigants to take a hard look at the
available universe of approaches. Because of the highly specific nature of each NRD case, the
manner of application and the success of these claims will only be realized over time as NRD is
examined on a case by case basis.
217 Notice of Removal at 1.20(e), New Jersey Department of Environmental Protection v. ExxonMobil Corporation,
No. Hud-L 4415-04 (N.J. Super. Ct. filed Aug. 18, 2004).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM