LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Angus Macbeth of Sidley Austin LLP Speaker 24b: 23
Site/Spill Date Settlement
ConocoPhillips 12/5/05 Fund the acquisition of 73 acres
Hatco Site 4/21/05 Land acquisition project: 34-acre parcel with
wetland and upland habitat, land trust
CONCLUSION
The stakes are high in natural resource damage litigation and many of the cases brought by the
Trustees have been, and are likely to continue to be, litigated in the courts. PRPs see that the
government faces difficulties in demonstrating actual injury to natural resources and in proving
causation and other elements of their claims.
PRPs should develop a strategy early on for responding to a natural resource damage claim. The
first step is to make a preliminary assessment of the strength of the Trustees’ case. If a viable
claim appears to exist, PRPs may want to consider conducting the assessment themselves, but
only on acceptable terms which allow the PRPs to co-manage the assessment process. PRPs may
want to explore the use of such tools as cooperative assessments, Joint Assessment Teams, and
integrated natural resource assessments and response actions.
Once assessment is complete and the nature and scope of damages has been determined,
settlement negotiations may be aided by the use of a neutral, particularly when federal trustees
are involved. In considering settlement options, PRPs may be well-served by thinking outside the
box. Increasingly, in-kind restoration, property transfers or conservation easements, restoration
credits trading, and the use of innovative funding mechanisms are replacing simple monetary
settlements for natural resource damages.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM