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The Business Dilemma: 21st-Century Natural Resource Damage Liabilities for 20th-Century Industrial Progress

November 2001

Citation: 31 ELR 11356

Issue: 11

Author: E. Lynn Grayson, Christine A. Picker, Steven M. Siros, and Stacy Lynn Bettison

Throughout recorded time, many have attempted to rewrite history to soften the harsh realities of the "good old days." Without question, hindsight remains 20/20 in reflecting upon how this country's modern, industrialized enterprises have adversely impacted the environment, including natural resources. The dilemma now facing businesses relates to natural resource damage liabilities resulting from past industrial progress and prosperity. Through the years, these businesses have paid for past wrongs through the remediation of contaminated media. Clearly, U.S. businesses have learned the lesson of environmental protection through the Superfund experience. Despite the environmental protection advances, some federal and state trustees hope that they can rewrite history so that businesses once again pay for their industrial successes of the past.

The term "natural resources" includes "land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and other such resources belonging to, managed by, held in trust by, appertaining to or otherwise controlled by the U.S. . . ., any State or local government, [or] any Indian tribe." There is no doubt that over 200 years of development, in all of its various residential, commercial, and industrial forms, has negatively impacted natural resources. As is typically the case, industrial operations of companies continuing to conduct business appear to be the target of federal and state natural resource damage claims. These companies pose easier targets for natural resource damage cases brought by trustees since the long-term, ongoing operations often resulted in more apparent and even documented releases to the environment. While such cases appear straightforward, the regulatory scheme and evidentiary burdens associated with natural resource damage cases are extremely complex. As natural resource damage claims continue multiplying to fill voids left by more mature or stagnant regulatory programs, the legal controversies surrounding the statutory interpretations of the natural resource damage provisions will escalate. In the context of natural resources, all parties do not agree that history easily can be rewritten and natural resources readily restored or replaced.

E. Lynn Grayson is a partner in the Environmental, Energy, and Resources Group of Jenner & Block in Chicago. Ms. Grayson concentrates her practice in environmental law representing clients in natural resource damage actions, due diligence matters, and enforcement actions. She is the chair of the ABA Section of Business Law Committee on Environmental, Energy, and Natural Resources.

Christine A. Picker is a partner in the Environmental, Energy, and Resources Group of Jenner & Block in Chicago. Her experience includes representation of clients in Superfund actions, natural resource damage actions, private cost recovery actions, and insurance coverage matters, as well as performing due diligence for real estate and corporate transactions. Ms. Picker received her J.D. degree from Harvard Law School in 1992; her Masters in Social Work from Washington University in 1987; and her B.A. degree from the University of Michigan in 1985.

Steven M. Siros received his J.D. degree from Northern Illinois University College of Law in 1994. Since 1996, he has been an associate with the law firm of Jenner & Block in Chicago, concentrating his practice on all aspects of environmental law. Prior to joining Jenner & Block, Mr. Siros was a law clerk for Justice Lawrence Inglis on the Illinois Appellate Court.

Stacy Lynn Bettison is an associate at Jenner & Block in Chicago. After graduating from the University of Minnesota Law School in 1999, Ms. Bettison served as a law clerk for the Honorable Myron H. Bright of the U.S. Court of Appeals for the Eighth Circuit. Since 2000, Ms. Bettison has focused her practice in environmental law and commercial litigation.

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