State Actions for Natural Resource Damages: Enforcement of the Public Trust

November 1987
Citation:
17
ELR 10434
Issue
11
Author
Carolyn L. Buchholz, Howard Kenison, and Shawn P. Mulligan

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.

Howard Kenison is Deputy Attorney General and Chief of the CERCLA Litigation Section of the Colorado Attorney General's Office. Carolyn L. Buchholz and Shawn P. Mulligan are Assistant Attorneys General in the CERCLA Litigation Section. The views and opinions expressed in this article do not necessarily reflect the views and opinions of the Colorado Department of Law. The authors wish to thank Dr. John Boland of Johns Hopkins University, Dr. Jerry Milliman of the University of Florida, Dr. Robert Rowe of Energy Resource Consultants, Boulder, Colorado, and Dr. William Schulze of the University of Colorado for their assistance with the critique of the DOI regulations.

Article File