LSI 2010 NRD Santa Fe final conference binder 072110.pdf

William H. Desvousges of W. H. Desvousges & Associates Speaker 27: 6
Furthermore, the Plaintiff’s experts do not demonstrate that any ecological or in
situ services have been affected by the releases at the former facility. (And no
evidence was presented at trial that they were impacted.) Contamination does not
affect the ability to prevent subsidence or salt water intrusion in the aquifer. Because
the groundwater does not reach the surface, there is no loss in habitat services.
However the Plaintiff’s expert does not address any of these potential services and
instead assumes a 100% service loss.
Timeframe of Injury
The Plaintiff’s expert did not provide any evidence that there is a basis for
natural resource damages by demonstrating that any natural resource services had
been lost to the public. However, he moves along assuming 100% service loss for all
of the injured resource. He then has to estimate a timeframe for the injury. The first
groundwater sampling occurred in 1985. Rather than use 1985 as the start date for his
assessment, he assumes that the groundwater plume start date corresponds with the
start of operation of the plant: 1977. Because losses that occur in the past weigh
heavily on the total damage estimate, adding eight years to the assessment has a
substantial impact on the total loss estimate. The Plaintiff’s expert provides little
support for extending the time period of injury to the start of operation.
Resource Equivalency Analysis (REA)
Because of the failure to consider services in their analysis, the Plaintiff’s use of
the REA is fatally flawed as well. A proper REA would quantify the reduction in natural
resource services lost as the result of a release and then would determine whether
specific compensatory restoration projects would provide equivalent discounted service
flows (NOAA 2006). Because they have not determined and measured any service
reductions for the releases at the former facility site, the Plaintiff’s cannot conduct a
properly scaled REA, nor evaluate alternative projects to find the one that is most costeffective.
Moreover, the use of REA for this site is unorthodox because it is usually
applied to situations where there are losses in biological injuries and related service
losses (Zafonte and Hampton 2007). REA is not suitable for groundwater cases
because of the disparity in the type of services provided by groundwater relative to
habitat alternatives.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM