Natural Resource Damage Assessment: Methods and Cases

United States, adjoining shorelines, or into or upon the waters of the contiguous zone,” or in
connection with activities under either the Outer Continental Shelf Lands Act or the Deepwater
Port Act of 1974, that party is also liable for the costs and expenses incurred by the federal or
state government “in the restoration or replacement of natural resources damaged or destroyed as
a result of [the] discharge.” CWA § 311(b)(3), (f)(4).
Section 1002 of the Oil Pollution Act of 1990 (OPA), 33 U.S.C. § 2702, also provides a
cause of action for NRDs. When oil is discharged “into or upon the navigable waters or
adjoining shorelines or the exclusive economic zone” and the discharge is not exempted from
liability as a discharge authorized by permit, a release from a “public vessel,” or an onshore
facility subject to the Trans-Alaska Pipeline Authorization Act, a United States trustee, a State
trustee, and Indian Tribe trustee, or a foreign trustee may recover for “[d]amages for injury to,
destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of
assessing the damage.” OPA § 1002(b)(2)(A).
There are other statutes that authorize recovery of NRDs. Most of these, however, do so
in the context of certain designated natural resources under the jurisdiction of the federal
government. For example, the National Park System Resource Protection Act provides that “any
person who destroys, causes the loss of, or injures any park system resource is liable to the
United States for response costs and damages resulting from such destruction, loss, or injury.” 16
U.S.C. § 19jj-1(a) “[P]ark system resources” are limited in scope; the term is defined as “any
living or non-living resource that is located within the boundaries of a unit of the National Park
System, except for resources owned by a non-Federal entity.” 16 U.S.C. § 19jj(d).
CERCLA, the CWA, and OPA designate trustees to recover NRDs. Under CERCLA, the
designated trustees include the United States government, the State, if the State controls,
manages, or owns the natural resources that were damaged, and an Indian tribe, if the tribe
controls, manages, or owns the natural resources or if the natural resources are held in trust for
the Indian tribe, or if a member of the tribe owns the land and there is a trust restriction on
alienation on the resources. CERCLA § 107(f)(1). The President designates the federal officials
who act on behalf of the public as trustees. CERCLA § 107(f)(2)(A). Likewise, the Governor
of each State designates State officials to act as trustees under this statute. CERCLA §
107(f)(2)(B).
The duties of the trustees are outlined in each of the statutes. See CERCLA § 107(f)(1),
CWA § 311(f)(5), OPA § 1012(a)(2). But in general, as the National Association of Attorneys
General has stated: “The states and the Federal Governments [sic] are trustees for the people, and
. . . their trust corpus includes this nation's glorious natural resources. We, as trustees, have an
obligation to protect these often irreplaceable resources from harm, and those that harm them
have the obligation to restore them for all the people.” That is, “NRD trustees do indeed have a
fiduciary duty to protect and restore the public's resources, as well as to refrain from abusing
their power in carrying out their responsibilities.” Kevin R. Murray et al., Natural Resource
Damage Trustees: Whose Side Are They Really On?, 5 Envtl. L. 407, 423 (2000).
Because CERCLA, the CWA, and OPA are the only NRD statutes that allow a State to
act as a trustee and recover NRDs, we will only focus on the NRD provisions of those statutes.
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