Liability for Natural Resource Injury: Beyond Tort
Files
Description
Recent debate about environmental regulation and liability reveals a remarkable reversal of positions. Business traditionally has insisted that environmental law and policy be driven by economic analysis of the costs and benefits of environmental regulation and liability rules. Most environmental advocates and many government regulators have voiced strong opposition, asserting that a healthy and unspoiled environment is beyond price. Recently, however, federal and state government agencies, with strong backing from environmental groups, have aggressively and successfully sought to impose statutory damage liability for injuries to public natural resources. In doing so, they have sought to base damage claims on contingent valuation methodology (CVM) surveys that seek to measure the economic nonuse value that individuals place on the environment by asking them how much they would page to preserve a given natural resource from injury. Business, on the other hand, has attacked use of this new methodology as unreliable and unsound. This novel debate over the role of economic methodology in environmental protection has been generated by recent statutes authorizing natural resource damage liability. In the 1980 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Congress authorized federal, state, and tribal trustee authorities to bring court actions to recover damages for injury caused by releases of hazardous substances to natural resources “belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by” the trustees [CERCLA §§ 101(16), 107(a)(4)(C)]. Trustees may also recover the costs that they have incurred in assessing these natural resource damages (NRD). The Clean Water Act (CWA) and the 1990 Oil Pollution Act (OPA) provide similar NRD liability for injuries caused by oil spills [CWA §311(f)(4), (5); OPA §1002(a), (b)(2)]. Recoveries must be spent to restore, replace, or acquire the equivalent of the injured resource; federal trustees are authorized to make such expenditures without further authorization or appropriation by Congress. These statutes impose NRD liability above and beyond the costs of removing the pollution in question. Many states have enacted similar statutes, authorizing state officials to bring actions for natural resource damage. To date, the most significant natural resource damage case is the $900 million settlement of NRD claims, pursuant to the Clean Water Act, by the United States and Alaska against Exxon for the Exxon Valdez spill in Prince William Sound. Government NRD recoveries in the tens of millions of dollars have also been obtained for hazardous releases or oil sills at other sites. The federal government alone has obtained NRD recoveries in respect of nearly fifty sites. Many additional claims are pending. Natural resource damage liability is becoming an important and widely used tool in government’s armory of environmental remedies.
Source Publication
Analyzing Superfund: Economics, Science, and Law
Source Editors/Authors
Richard L. Revesz, Richard B. Stewart
Publication Date
1995
Recommended Citation
Stewart, Richard B., "Liability for Natural Resource Injury: Beyond Tort" (1995). Faculty Chapters. 1701.
https://gretchen.law.nyu.edu/fac-chapt/1701
