LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Angus Macbeth of Sidley Austin LLP Speaker 24a: 5
CLAIM VALUED BY HABITAT EQUIVALENCY
ANALYSIS (HEA) – COMMENCEMENT BAY
U. S., Washington, Puyallup Tribe of Indians & Muckleshoot Indian Tribe v. General
Metals of Tacoma, Inc. (W.D.Wash. 2008);
U.S. et al. v. Occidental Chemical (W.D.Wash. 2009);
U.S. et al v. Petroleum Reclaiming Service (W.D.Wash 2009);
Large array of metals and chemicals found in Commencement Bay Environment.
Assessment began in 1991.
“Trustees used the term discounted ecological service acre-years (DSAYs) to
describe the scale of injuries, and the amount of habitat restoration they are seeking
to compensate for the injuries.”
Funds, property, or in-kind services sought to compensate for lost DSAYs.
Defendants allocated liability for X number of DSAYs and proportionate damage
assessment costs.
Restoration project defendant agrees to undertake set out in Appendix
9
HABITAT EQUIVALENCY ANALYSIS
HEA attempts to ensure that restoration projects create or restore the same quantity of
services that were lost through release of hazardous substances. Including lost interim
services.
Commencement Bay: U.S. v. AOL Express, Inc. (W.D. Wash. 2006):
Levee relocated, restored natural flow of river, provided 66 acres of salmonspawning
habitat and other benefits.
PRP group funded $2.3 million project, paid $150,000 oversight costs, and their
own cost of oversight, settling monetary claim of abt. $13.5 million
Bore risk that project would fail to produce benefits
See Lacampagne & Miller, “Settling NRD Claims by Appropriately Valuing Injury
and Damages,” 24 NR&E No. 1 (2009)
Critique of HEA: Dunford, Ginn & Desvousges, “The use of habitat equivalency
analysis in natural resource damage assessments,” 48 Ecological Economics 49 (2004)
10
Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM