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Making CERCLA Natural Resource Damage Provisions Work: The Use of the Public Trust Doctrine and Other State Remedies

August 1988

Citation: 18 ELR 10299

Issue: 8

Author: Cynthia Carlson

Editors' Summary: CERCLA authorizes the federal government and states, as guardians of the public trust, to sue polluters to recover damages for injuries to natural resources caused by releases of hazardous substances. These causes of action are governed by the Department of the Interior's natural resource damage assessment regulations, which have recently been challenged in federal court. Critics assail the regulations as strongly biased toward the undervaluation of damaged resources. The author of this Article notes that the regulations may ultimately have to be revised to address this concern. In the meantime, she argues, public trustees stand a good chance of obtaining fuller recovery for injured natural resources if they make use of available pendent state claims. By supplementing their CERCLA suits with appropriate public trust and public nuisance claims, the author submits, public trustees can widen the available remedies to include injunctions, mitigation, restitution, and other forms of equitable relief.

Cynthia Carlson is a Research Fellow at the Woods Hole Oceanographic Institution; LL.M., University of Virginia School of Law; J.D., Northwestern School of Law of Lewis and Clark College; B.A., Wellesley College. Her research has been supported by the J.N. Pew Jr. Charitable Trusts and the Marine Policy Center of the Woods Hole Oceanographic Institution.

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