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Natural Resource Damages Causation, Fault, and the Baseline Concept: A Quandary in Environmental Decisionmaking

September 1996

Citation: ELR 10457

Author: Robert F. Copple

Editors' Summary: CERCLA and the Oil Pollution Act (OPA) create causes of action for damages to natural resources—for damages "resulting from" a release or threatened release of a hazardous substance, in the case of CERCLA, and for damages that "result from" a discharge or threatened discharge of oil in the case of the OPA. Thus, natural resource damages actions under these acts require a causal link between the release or discharge and the natural resource damage at issue. This Article traces the development of this causal link—from early judicial opinions to recent agency regulations. The Article analyzes how the federal natural resource trustees, the DOI and NOAA, have incorporated the causal link requirement into their natural resource damages assessment regulations. The Article concludes by highlighting causation issues that may permeate any assessment or subsequent litigation.

Robert F. Copple is environmental counsel for Motorola, Inc., in Scottsdale, Arizona. He received his J.D. from the University of Nebraska College of Law, and his Ph.D from the University of North Carolina at Chapel Hill. In addition to a more general environmental practice, Dr. Copple has extensive experience in natural resource damages litigation, Comprehensive Environmental Response, Compensation, and Liability Act response cost litigation, and the CERCLA process.