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Natural Resources Damages Under CERCLA §107: How the Liability Rules Differ Between Actions for Natural Resource Damages and Response Costs

October 1992

Citation: 22 ELR 10655

Issue: 10

Author: Mehron Azarmehr

Editors' Summary: CERCLA § 107 is perhaps best known as creating a cause of action for the recovery of costs incurred in responding to releases of hazardous substances. Recently, however, federal and state governments have used it increasingly in suits to recover natural resource damages. This Article describes the elements of a CERCLA cause of action for the recovery of natural resource damages and compares them to the elements of a CERCLA cause of action for the recovery of response costs. The author examines who may bring suits for natural resource damages, the nexus requirement between the resources and a government authority, and the key definitions of "release" and "hazardous substance." He also analyzes the requirement of causation, the applicable statute of limitations, permitted releases, retroactive application of CERCLA, and the right to trial by jury. The author concludes that the increasing use of CERCLA § 107 by state and federal governments to recover natural resource damages, coupled with both the absence of a dollar limit on natural resource damage recoveries and the tremendous number of sites nationwide that could give rise to natural resource damages suits, suggests that such suits will likely increase tremendously and the amount of money involved will be staggering.

Mr. Azarmehr is an attorney employed with the Environmental Protection Division of the Texas Attorney General's Office in Austin, Texas, but is not an assistant attorney general. The views expressed in this Article are the author's and do not represent the views of the Texas Attorney General's Office.

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