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Implications of Proposed CERCLA Reforms for Recoveries of Natural Resource Damages

February 1998

Citation: 28 ELR 10089

Issue: 2

Author: Suellen Keiner

Debate over reforms to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)1 consumed substantial energy during the 1997 session of Congress, and those deliberations will continue in 1998 with the hope of finally producing consensus about how the law can be improved. While interested parties may have different, often opposing views of how CERCLA should be reformed, some of their proposals may not represent progress, particularly the procedural changes related to restoring injured natural resources and expediting recoveries of natural resource damages (NRD).

This Dialogue analyzes related issues of the rebuttable presumption for trustees' NRD assessments provided by bothCERCLA and the Oil Pollution Act (OPA)2 and the appropriate standard of judicial review for future challenges to those assessments. It highlights a forgotten opportunity for the U.S. Department of the Interior (DOI) and the National Oceanic and Atmospheric Administration (NOAA) to provide adjudicatory administrative hearings on disputes over NRD assessments and discusses how proposed CERCLA reforms would affect this approach to reducing transaction costs and streamlining trustees' recovery of damages in future NRD cases.

Ms. Keiner is a Senior Attorney at the Environmental Law Institute (ELI). She has managed a number of ELI research projects and taught a number of ELI training programs. During her 25 years in the field of environmental law, Ms. Keiner has served as an attorney at the U.S. Department of the Interior and the Council of State Planning Agencies. She has also been a public interest litigator representing national and local environmental groups. She is a graduate of Georgetown University Law Center and Bryn Mawr College.

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