State Actions for Natural Resource Damages: Enforcement of the Public Trust
Editors' Summary: When Congress enacted the Superfund statute in 1980, it authorized the federal and state governments to recover for natural resource damages caused by hazardous substances. The potential of this legal doctrine went virtually unrecognized for several years, in part because of the ambiguity of what was included in the new cause of action, and in part because of executive branch delay in implementing the laws' mandates on natural resource damages. Now, particularly after congressional reaffirmation of the doctrine in the 1986 Superfund Amendments, natural resource damages are clearly an important part of environmental law: the Interior Department has promulgated regulations fleshing out the meaning of the doctrine, and many lawsuits have been filed seeking recovery for natural resource damages. In this Article, the authors outline how the doctrine can be applied by state governments and detail specific deficiencies in the Interior Department's regulations. Natural resource damages, the authors argue, is a far more powerful and encompassing doctrine than the Interior Department's regulations presently allow. The authors suggest that states may, if they choose, recover for natural resource damages even to resources that are privately owned, and present an innovative approach to ensure that private interests are nonetheless compensated.