MEASURING JUSTICE FOR NATURE: ISSUES IN EVALUATING AND LITIGATING NATURAL RESOURCES DAMAGES

JAMES PECK[*]

Copyright © 1999 Journal of Land Use & Environmental Law

I. INTRODUCTION

Shortly after midnight on a chilly March 24, 1989, the oil tanker Exxon Valdez ran aground on Bligh Reef in Prince William Sound, Alaska.[1] The damaged vessel immediately began gushing crude oil into the Sound, and over the next two days an estimated 11,000,000 gallons of crude oil were discharged into the sensitive marine environment before emergency crews could stop the release.[2]

The oil spill spread across Prince William Sound and the Gulf of Alaska, contaminating approximately 1,100 miles of shoreline[3] along Prince William Sound, the Kenai Peninsula, the lower Cook Inlet, the Kodiak Archipelago, and the Alaska Peninsula.[4] Damaged areas included several coastal communities, the Chugash National Forest, four national wildlife refuges, three national parks, five Alaskan State parks, four Alaskan Critical Habitat Areas, and an Alaskan Game Sanctuary.[5] The oil slick killed over 350,000 shore nesting birds[6] and several thousand marine mammals, mostly sea otters, and posed a threat to salmon and herring fisheries in the area.[7]

Over the next few years, Exxon spent approximately $2 billion in remediation costs, $5 billion in civil litigation punitive damages, $287 in compensatory damages to commercial fishermen, $20 million in an out-of-court settlement to Alaska natives, and $125 million in criminal fines and restitution payments to state and federal agencies.[8] However, simply cleaning up the spill and compensating injured parties was insufficient to remedy the environmental harms. During the cleanup, an extensive study program was conducted to assess the damage to the natural resources resulting from the disaster above and beyond the damage addressed by the remedial actions.[9] This assessment focused on the immediate injury to the environment, the long-term alteration of species populations, the sublethal or latent effects of the spill, the ecosystem-wide effects, and degradation of habitat.[10] Based on this assessment, Exxon entered into a settle ment agreement with federal and state governments to pay $900 million for the costs of restoring and replacing damaged natural resources.[11] The agreement provided for up to $100 million in additional funding for future restoration if needed.[12]

Three federal and three state trustees were designated for administering the restoration funds.[13] All funds were designated to restore, replace, enhance, or acquire the equivalent of natural resources injured, as well as reduced or lost services provided by these resources as a result of the spill.[14] As of the winter of 1997, the trustees had implemented several general restoration projects in damaged areas and acquired approximately 485,000 acres as replacement for damaged resources, mostly for enhancing the recovery of injured wildlife populations through additions to existing wildlife refuges.[15] The natural resources of Prince William Sound have yet to fully recover, and the trust continues to monitor and research the implementation of the restoration program.[16]

The Exxon Valdez disaster highlights many of the issues that arise when natural resource damages are included in an assessment of environmental harm. Compared to the costs of investigation or remediation, natural resource damages are not readily accounted for and measured. Therefore, determining suitable methods for measuring the value of natural resources and the extent of recoverable damages are controversial subjects.

The purpose of this paper is to discuss what natural resources are for the purpose of defining their value, to outline the methods for valuing damages to natural resources and the services they provide, and to review the legal framework for litigating natural resource damages with a discussion of causes of action under the common law and under federal natural resource protection statutes. The paper concludes with a summary of shortcomings in the current legal framework and provides suggestions for improving the existing system.

II. CHARACTERIZATION OF NATURAL RESOURCES

In any discussion of natural resource damages, it is important to define "natural resources." Natural resources are generally thought of as the individual elements of the natural environment that provide economic and social services to human society. Traditional definitions of natural resources were limited to resources providing quantifiable economic products such as industrial minerals, energy sources, timber, and agricultural land.[17] However, in recent decades there has been a growing recognition that natural resources, as ecosystems, provide a larger array of services to society than merely as a source of industrial raw materials.[18] As these services have come to be recognized, the definition of natural resources has expanded to include ecological elements and the services derived from ecosystem processes.[19]

Ecosystem services provided by natural resources that have been investigated since the mid-1960s include the function of wetlands and the effect of watersheds on water quality; the cycling of chemicals and nutrients through ecosystems; and the interaction among natural resources, the atmosphere, and the oceans to regulate climate.[20] A modern list of services provided by natural resources includes the purification of air and water, flood control, detoxification and decomposition of wastes, the formation and maintenance of fertile soils, pollination of crops, control of agricultural pests, and recycling of matter in addition to providing material benefits such as food supplies, industrial products, construction materials, energy sources, and medicines.[21]

Additionally, natural resources are part of society's cultural fabric. Throughout American history, the arts, literature, and philosophy have been influenced by the character of the natural landscape. From the diaries of the Lewis and Clark expedition to the writings of Henry David Thoreau, Mark Twain, and the poetry of Walt Whitman, American culture is pervaded by a sense of place in its natural environment, which is reflected in society's value of natural resources. This value is uniquely expressed in the land ethic of Aldo Leopold, which challenged the perspective of natural re sources as simply a commodity, instead emphasizing the moral value of the natural environment of which humanity is a part.[22] Based on such cultural premises, the definition of natural resources has been extended to include an aesthetic element which recognizes that mere existence of the resource has value to people.[23]

Such an expansive list of services provided by natural resources creates complexity in defining the extent of these resources in the particular circumstances of natural resource damage litigation. It is one thing to measure the direct loss of economic value of natural resources such as fish or timber, but quite another to measure the resulting negative externalities such as the loss of ecological services or the value of the knowledge of their existence to individuals or to society as a whole. The following section addresses the difficult issue of valuing natural resources for the purpose of litigation damage assessment.

III. VALUATION OF NATURAL RESOURCES

One of the most significant aspects of natural resource damage litigation is the assignment of value to the damaged resources. Due to the expansive nature of the definition of natural resources and the difficulty in measuring resource values, the litigated value of damages can vary significantly depending on the philosophical basis of assigning value and the valuation method used. This section outlines the different philosophical bases for valuing natural resources and the methods used in measuring the value of damages to natural resources

A. Approaches to the Valuation of Natural Resources

It is generally recognized that there are essentially two different philosophical bases of assigning value for natural resources, anthropocentric (or utilitarian) approaches and biocentric (or intrinsic value) approaches.[24] These two approaches are not mutually exclusive, but do assign different values to the same resource under similar circumstances.

Anthropocentric approaches can be characterized as utilitarian in that they assign value to natural resources insofar as they provide satisfaction to humans, either individually or as a society.[25] Anthropocentric values can be divided into use values, the worth of natural resources derived from direct or indirect use, and existence values, the worth of natural resources to people beyond their use value.[26]

Use values are the least controversial of natural resource values, as they are the easiest to identify and measure as consistent with existing markets. Use value is not limited to consumptive uses, such as timber production, but also includes nonconsumptive uses such as recreation in a resource area,[27] and indirect use values such as the value of plankton in the food chain.[28]

Anthropocentric values that are not use values are considered existence values.[29] These are the values to individuals and society in simply knowing the natural resources exist. Existence value can be characterized as a vicarious value, which is the value to a particular individual in the knowledge that the natural resource exists, or as an inter-temporal value, which is the value of conserving the resource for future generations.[30] Additionally, existence value contains an element of value related to the option that conservation of the natural resource provides for future use. For example, an endangered plant species may have undiscovered medical uses for which the preservation of the species provides an option value.[31]

As a separate category of valuation, the biocentric approach can be generally characterized as a rights-based approach, that recognizes the intrinsic value of natural resource existence independent of human satisfactions.[32] Characteristic of this approach is the philosophy of deep ecology,[33] the animal rights movement,[34] and the land ethic of Aldo Leopold.[35] Intrinsic value is not readily measurable in monetary worth, as intrinsic value is a matter of right. The measure of damages to natural resources under an intrinsic valuation system would necessarily be punitive to serve as a deterrent from violating an intrinsic right.[36]

From an economic perspective, the preferred method of valuing natural resources is to quantify anthropocentric values of use and existence through some form of utilitarian cost-benefit analysis.[37] Anthropocentric values are favored because they are theoretically measurable, and the process of measuring damages in a litigation context is by definition anthropocentric. Additionally, intrinsic values are not universally recognized, and the process of monetizing the intrinsic value of an injury to natural resources is speculative. The use of a valuation approach is consistent with current law, which does not recognize legal rights for natural resources apart from the interests that persons or recognized parties have in the resources.[38]

The value of a natural resource is the sum of the legally recognized elements of value, insofar as they can be separated and independently measured, but use, existence, and intrinsic value are not necessarily exclusive.[39] Therefore, elements of intrinsic value may be included in measurements of use and existence values of natural resources. To understand which values are included in a measure of natural resource value, it is important to have a basic understanding of the various economic methods used to measure natural resource value.

B. Methods of Quantifying the Value of Natural Resources

Several methods have been developed over time for measuring the value of natural resource damages. The traditional approach at common law was to measure damages as the market value of the injured natural resources, or where market value was inappropriate or unavailable, the cost to restore or replace the resources.[40] As the concept of natural resources has broadened to include services and nonuse values, natural resource valuation methods have been developed that account for nonmarket values. These methods are generally classified as either direct methods such as contingent valuation (measuring the stated value), or indirect methods such as behavioral use valuation (measuring revealed value).[41] Each of these methods has advantages and shortcomings, as discussed below.

1. Market Valuation

Market valuation of natural resources provides a relatively certain measure of resource value, as market value is reflected in the price for resources as traded in a definable market. Under a market valuation approach, the compensable natural resource damages would be the total loss of market value for each of the individually damaged elements and the value of lost services of the natural resource. Use of market valuation is commonly held to be the most economically efficient measure of damages.[42] In theory, market value is the level of compensation to which litigating parties would agree out of court, if no transaction costs were incurred.[43]

However, market valuation has limited use in a natural resource damages context. Natural resources often have unique and peculiar values and, in many circumstances, are not openly traded on a free market. Market valuation does not account for the loss of nonmarketed use values such as indirect ecosystem services or for existence or intrinsic nonuse values. Market valuation is generally accepted as not reflective of the true value of damages to natural resources and, in general, will tend to underestimate their true value.[44]

2. Restoration and Replacement Cost

Restoration of a damaged natural resource is an appealing remedy because it directly addresses the harm. Restoration cost is the only valuation method that accounts for the uniqueness of each particular resource and the finite supply of natural resources in general.[45] Additionally, restoration cost incorporates, to some degree, all measures of natural resource value—use, existence, and intrinsic—to provide a full measure of damages.[46]

However, restoration cost does not directly measure the value of the damaged resource and can result in costs greatly exceeding the value of the damaged natural resources as measured by other methods.[47] It is generally accepted that a measure of damages that is disproportionate to value is contrary to the policy of promoting economic efficiency.[48] Restoration cost presents technical problems as well. What should be considered baseline conditions, what restoration procedures are appropriate, and what degree of restoration is considered adequate are all questions that need to be addressed.[49] For injuries where extensive habitat destruction or loss of biodiversity has occurred, the restoration of various ecosystem functions may not be possible.[50]

Where restoration is not feasible, a similar alternative is to replace the damaged natural resources by acquiring comparable resources for conservation.[51] Replacement value has the advantage of being relatively easy to measure and can provide an effective remedy for the loss of many use and existence values.[52] However, replacement does not address the value of loss for unique resources and does not account for the loss of the combined value that the injured natural resource and its replacement had prior to the injury.[53]

3. Contingent Valuation

Contingent valuation is a recently developed method of economic valuation where the value of a natural resource and its services are measured by surveying a sample of the population to provide the price they would be willing to pay to preserve or restore that resource.[54] A variation of contingent valuation is the contingent behavior method, which asks the survey respondents how much they would be willing to modify their behavior patterns to protect or restore a natural resource.[55]

Contingent valuation provides a direct method of measuring natural resource values without resorting to the market valuation method. The technique is relatively simple and easy to implement, and provides a direct means of including existence value in a measure of natural resource damages.[56] The survey techniques used in contingent valuation studies also provide a good database of information for indirect methods of valuing natural resources.[57]

The use of contingent valuation in natural resource damage estimates has been highly controversial. Critics of the method argue that the method is hypothetical and generates unreliable damage estimates, produces results that cannot be independently validated, determines value from persons lacking sufficient information to be estimating value, and is not consistent with principles of valuation that are basic to the economics profession.[58] These deficiencies in contingent valuation arguably inhibit the method from accurately measuring use and existence values.[59]

Most of the concerns regarding contingent valuation are related to the manner in which the survey is designed and implemented.[60] Proponents of contingent valuation have argued that these criticisms are derived from improper design and execution of surveys, and that recent developments in the practice of contingent valuation has increased its use in measuring natural resource damages.[61] Suggested characteristics for obtaining accuracy in contingent valuation surveys include clearly identifying and describing the resource and the impact to be valued, providing a means of establishing that the respondent is familiar with the resource, framing the survey questions so as to avoid implicating political controversies,[62] using yes-no or multiple-choice question format, and to the extent possible avoiding open-ended questions.[63]

4. Behavioral Use Valuation

Behavioral use valuation is a broad category of economic methods that can be used to indirectly measure the use value of natural resources by observing differences in behavioral patterns. The change in the behavior of resource users as the result of an injury to natural resources reflects a corresponding reduction in welfare, which is measured under different tests as a proxy to the loss in resource value.[64] One advantage to using behavioral use valuation is that it is less prone to error resulting from the individual bias and hypothetical nature of the contingent valuation method.[65]

A commonly used behavior use valuation method is the hedonic model, which models the change in value of marketed goods with characteristic attributes that are influenced by an injury to natural resources.[66] The hedonic model typically uses pricing in the housing market as the measured variable to evaluate natural resource damage value, as several studies have indicated that proximity to environmental risks are capitalized in the housing market.[67] However, hedonic modeling has been criticized for being unable to separate the impact to value resulting from natural resource damage from high transaction costs and other characteristics of the location that factor into housing prices. Hedonic modeling is prone to underestimate the value of marginal damage to natural resources, and for many natural resources, there is a limited housing market in the area of the resource from which hedonic valuation could be calculated.[68]

Travel cost valuation offers a more appropriate behavioral use valuation method for measuring the value of natural resource damages. Users of natural resources incur travel costs to access the resources, and theoretically the value to the users is reflected in the amount of travel costs they are willing to incur.[69] Travel cost valuation is advantageous because it is relatively easy to obtain reliable data, which may already be available for some natural resource locations.[70] However, similar to hedonic modeling, travel cost valuation is limited to measuring only use values, as nonuse values are not captured in travel expenditures.[71] Additionally, it may not be adequate for measuring the value of small changes in the quality of the natural resource or the amount of knowledge that users have regarding the extent of damage to the resource.[72] It is also difficult to accurately account for opportunity costs resulting from lost wages on the part of the resource users.[73] However in spite of these shortcomings, travel cost valuation is generally regarded as the best available tool for measuring use value where market valuation is inapplicable.[74]

This summary of methods available for valuing natural resource damages highlights its complex and controversial nature. The selection of a valuation method is dependent on the values sought to be included, and the particular circumstance in which the damages are to be evaluated. Table 1 summarizes the type of values and their inclusion in different methods of measuring natural resource values.

IV. LITIGATION OVER NATURAL RESOURCE DAMAGES

Natural resource damage litigation can be divided between common law based actions and federal statutory actions. Although there are many similarities between the two types of cases, there are important procedural differences in terms of jurisdiction and standing requirements, as well as differences in the remedies available to plaintiffs. After examining common law legal rights and circumstances under which claims can be made for natural resource damages, this section will explore the federal statutory framework for litigating natural resource damages and the impact these statutes have had on common law actions.

A. Common Law Legal Rights over Natural Resources Damages

The common law, including statutes enacted under the sovereign powers of the states, are the traditional legal methods for addressing damages to natural resources. The common law provides a framework for addressing interests in natural resources as either public interests or private interests.[75] Public interests are those interests common to the general public, and are vindicated by states acting as sovereign.[76] Private interests are generally private property interests vindicated under principles of tort law.[77]

1. Common Law Public Rights

States are recognized as having authority to protect natural resources, insofar as the resources are within the interests of the general public.[78] The most common legal basis for states to have standing to sue for natural resource damages is through an exercise of the police power. In addition to the police power, states can rely on other common law theories recognizing state interests in natural resources. Three additional common-law theories for state based actions are that states: (1) have a proprietary interest in natural resources; (2) are guardians of natural resources under the doctrine of parens patriae; and that (3) are trustees of certain natural resources under the public trust doctrine.[79]

a. Police Power

The police power provides states the authority to create laws to protect the health, safety, and welfare of the general public.[80] The majority of states have enacted statutes authorizing the state fish and wildlife agency or state attorney general to recover damages for environmental harm.[81] State statutes often provide standing to local governments and private parties to recover for natural resource damages as well.[82] Common damages under such statutes are for the full measure of the value of harm, either as the cost of restoration or by a statutorily prescribed unit pricing system. Many states allow for civil and criminal penalties related to the extent of damage.[83]

b. Proprietary Interest of States

State ownership of wildlife was recognized by the U.S. Supreme Court in Geer v. Connecticut,[84] which held that a state could prohibit the taking of wildlife and transportation for sale outside of state boundaries by virtue of its ownership of wild game.[85] For several decades, Geer provided a framework for states to regulate wildlife based on the states' proprietary interest. However the Court subsequently overruled Geer in Hughes v. Oklahoma,[86] holding that state wildlife protection laws were subject to dormant commerce clause limitations in the manner of other forms of state regulation.[87] The Court in Hughes characterized state ownership of wildlife as a 'legal fiction' merely expressing the importance to a state in preservation and regulation of the exploitation of important resources.[88]

This language in Hughes can be interpreted as invalidating the common law doctrine of state ownership of wildlife resources as expressed in Geer. Alternatively, the Hughes decision can be interpreted as applying narrowly to restrictions on interstate commerce. However, subsequent to the Hughes decision, states have justified protection of natural resources on common law doctrines other than the proprietary interest of the state.[89]

c. Parens Patriae and Public Nuisance

The common law doctrine of parens patriae regards the state as guardian of its citizens who are unable to adequately represent themselves.[90] The doctrine has expanded to allow states to sue to protect articulated quasi-sovereign interests distinct from the interests of particular private parties on behalf of the general public,[91] such as the abatement of public nuisances or the protection of its economy.[92] The right of the state to sue for pollution and natural resource damages on parens patriae grounds is well recognized in the case law.[93] Traditionally parens patriae was used only as a basis for states seeking injunctive relief, but recent court decisions have allowed states to recover money damages in their capacity as parens patriae.[94]

The most common cause of state action to protect natural resource damages under the parens patriae is the law of public nuisance. A public nuisance exists where there "is an unreasonable interfer ence with a right common to the general public."[95] Public nuisance originated as a common law group of crimes that have since been replaced by statutory crimes in most jurisdictions.[96] The modern common law action of public nuisance is based on conduct that is more tortious than criminal, and it is no longer necessary that an action be criminal to be a public nuisance.[97]

For public nuisance to apply, the nuisance must affect a public interest rather than private individual. It is not the ownership of the resource at issue, but the nature of the injury.[98] The nuisance does not need to affect the entire community, but must substantially interfere with the public right of those who encounter it.[99] Market valuation is typically the standard of measuring money damages in common law nuisance actions for injury to natural resources.[100]

d. Public Trust Doctrine

Although in general states are no longer held to own natural resources,[101] the public trust doctrine presents a property basis for the legal right of states to natural resource damages. Under the public trust doctrine, states hold title to lands under tidewaters and navigable watercourses in trust for the benefit of the public.[102] The public benefits the state is to protect includes fishing, navigation, commerce, and more recently water quality, wildlife, aesthetic values, public access, and recreational uses.[103] The lands held in trust cannot be alienated by the state except to promote the public interest.[104] In evaluating uses and disposition of the public trust, the states use a balancing test to evaluate the costs and benefits to the trust, protecting the trust interests to the extent possible.[105]

As the public trust doctrine is limited to navigable river and lake beds, coastal areas, estuaries, and other marine areas, the doctrine will generally not sustain a state action for natural resource damages in dry land areas.[106] However even with this limitation, the doctrine does serve as an important basis for states' interests in natural resources, as many injuries to natural resources are associated with pollution in watercourses and wetland areas.

2. Common Law Private Rights

At common law, private parties and municipal governments are able to sue for natural resource damages under tort doctrines of negligence, nuisance, trespass, or strict liability for abnormally dangerous activities.[107] Each of these causes of action require the private party to have incurred a personal injury distinct from the general public as a result of the tortfeasor's actions and separate from public rights.[108] Recoverable damages typically include lost property interests, economic loss, and potentially punitive damages. Injunctive relief is also often available.[109]

a. Negligence

Negligence actions are available to private parties and municipalities where the party responsible for an injury to natural resources has failed to exercise an objective standard of due care.[110] To sustain a negligence action one must show that the responsible party was subject to a duty of care, and that the defendant's conduct fell short of that duty resulting in an injury.[111]

To establish the responsible party was under a duty of care, a plaintiff must show that the burden to the responsible party in avoiding the injury was outweighed by the probability of an injury and the degree of harm.[112] For natural resource damages, a duty of care will commonly be found because the degree of potential harm to the environment will normally outweigh the burden in avoiding the harm.

Establishing that the cause of natural resource damages is the result of the defendant's failure to exercise due care can present a substantial barrier to a negligence action. To recover damages, the plaintiff must show by a preponderance of the evidence that the defendant's conduct caused the injury and that it was not the result of an independent cause.[113] Sophisticated sampling and modeling techniques are often necessary to demonstrate injury and causa tion.[114] However in many negligence actions for natural resource damages, res ipsa loquitur will apply allowing an inference of negligence to be drawn from circumstantial evidence that would not normally be sufficient to present a jury question.[115] In a few jurisdictions res ipsa loquiter shifts the burden to the defendant to come forward with evidence that the cause of injury is not the defendant's negligence.[116]

b. Nuisance

Nuisance actions by private parties can be either private nuisance or public nuisance causes of action.[117] The two actions are distinguished by the nature of the injury. A private nuisance occurs where there is "an interference with the use and enjoyment of" lawfully possessed property.[118] To maintain a private nuisance action, the plaintiff must have a property interest at stake.[119] A person who has "no interest in the property affected," such as a licensee, generally cannot maintain such an action.[120]

Remedies available under private nuisance include money damages for lost market value, injunctive relief, and abatement by self-help.[121] Injunctive relief is available under private nuisance if the necessary measures to abate the harm fall short of a complete ban on the activity causing the nuisance.[122] For activities that are highly probable to lead to a nuisance, the activity might be enjoined prior to any resulting damages through a private nuisance action.[123]

A public nuisance occurs where there is an interference with a right common to the general public.[124] In addition to the state's right to sue for a public nuisance, private parties may also sue for a public nuisance where they have damages different than those suffered by the general public.[125] For example, in the event of an oil spill, commercial fishermen can recover lost profits because they suffer from damages different in kind than those of the general public. How ever, a local business' profits are not recoverable because the business is only indirectly affected as is the rest of the general public.[126] Remedies available to private parties injured by a public nuisance include money damages, injunctive relief, and abatement. Additionally, members of the general public can seek injunctive relief or abatement of a public nuisance where they have legal standing do to so.[127]

c. Trespass

Private parties have a right of action in trespass where there is a physical invasion of property.[128] Whereas nuisance actions are based on an interference with the right to use and enjoy property, trespass actions are based on an interference with the right to possession.[129] Trespass actions require that the responsible party be more than negligent; the defendant must have intended the action that resulted in the trespass.[130] Once trespass is established, the trespassing party is liable for all consequences.[131]

d. Strict Liability

Under certain circumstances the tort doctrine of strict liability for abnormally dangerous activities might apply to cases of natural resource damages. To establish a strict liability action, the plaintiff must show that the defendant engaged in an activity that posed a high degree of risk of some harm, that the threatened harm could be serious, and that reasonable care could not have eliminated the risk of harm.[132] Other considerations include the extent to which the activity is not a matter of common usage, the inappropriateness of the activity to the location, and the value of the activity to the community.[133]

The use of strict liability is not accepted in all jurisdictions, and its application has been limited to activities which are out of place or unnatural for the location in which they are carried out. Examples where the doctrine has been applied include: storage and diversions of large quantities of water; storage of explosives or large quantities of flammable liquids; crop dusting; fumigating with cyanide gas; drilling or refining oil in populated areas; and the emission of noxious gasses in populated areas.[134] The doctrine has not been applied to such activities where the uses are natural to the land, such as utility mains or gas stations.[135] Accidental releases of hazardous substances during storage or transportation are generally not subject to strict liability as an abnormally dangerous activity.[136]

B. Federal Natural Resource Protection Statutes

Federal environmental legislation over the past 25 years has restructured the law of natural resource damages.[137] Two environmental statutes provide the principle sources of federal authority over natural resource damages: the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)[138] and the Oil Pollution Act (OPA).[139] Although other examples of federal legislation addressing natural resource damages exist,[140] these two statutes are the most generally applicable and provide a consistent framework in which to discuss natural resource damage litigation.

1. Creation of Liability for Natural Resource Damages

CERCLA and OPA both designate liability for all costs of injury to, destruction of, or loss of natural resources.[141] CERCLA creates liability under circumstances where response costs are incurred in addressing a release or threatened release of a hazardous substance into the environment. However, for natural resource damage claims, the liability provisions of CERCLA require a proven injury to the resource, and do not allow an action where there is only a threatened release.[142] Parties liable under CERCLA include the current owners and operators of a facility, owners and operators of a facility at the time the hazardous substances were disposed of, persons arranging for transport and disposal of hazardous substances, and transporters of hazardous substances.[143]

OPA creates liability for discharges of oil into navigable waters or adjoining shorelines or the exclusive economic zone of deep ocean waters.[144] Parties liable under OPA include the owners, operators or charterers of transport vessels, the owners or operators of onshore facilities, or pipelines, and the lessees of offshore facilities or deep water ports.[145] Public vessels and permitted discharges are excluded from OPA liability.[146]

Both CERCLA and OPA establish a strict and joint and several liability scheme for acts that result in damage to natural resources.[147] Liability is limited to injuries to those resources prescribed by statute. The two statutes define natural resources to include "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States. . . , any State or local government or Indian tribe, or any foreign government . . . ."[148] Resources under private ownership are interpreted as being "otherwise controlled by" the United States when there is a substantial degree of government regulation present.[149]

For purposes of liability, an injury means an observable adverse change in a natural resource that is either directly or indirectly the result of a discharge.[150] Regulations under CERCLA qualify adverse change as a change "in the chemical or physical quality or the viability of a natural resource."[151] OPA regulations include impairment of natural resource services as a component of injury.[152] The statutory liability is only recoverable by the designated trustees, which include the U.S. Government, states, Indian tribes, and foreign governments for natural resources under their respective control.[153]

CERCLA authorizes injunctive relief where a release or threatened release of a hazardous substance poses an imminent and substantial threat to public health and welfare or to the environment. The U.S. Attorney General is authorized to secure the injunction, which may include whatever actions are necessary to abate the threat, as determined by the public interest and circumstances of the threat.[154] Authority to determine when such a threat exists has been delegated to the U.S. Coast Guard for releases "or threatened re lease[s] involving the coastal zone, Great Lakes waters, ports, and harbors."[155] Authority for all other releases or threatened releases has been delegated to the U.S. Environmental Protection Agency.[156]

It is significant that unlike recovery for response costs, there must be an established causal link between the responsible party and the injury to the natural resources.[157] Simply satisfying the requirements for a liable party is sufficient to find liability for recovery and response costs. Natural resource damage liability requires that a regulatory definition of causation be satisfied, provided in CERCLA implementing regulations,[158] which can create a burden of proof that presents a substantial technical barrier to recovery.[159]

2. Defenses to Liability for Natural Resource Damages

Defenses to OPA and CERCLA are limited to the defenses specified by the statute. Both statutes provide defenses if it can be established that the resulting damages were the result of an act of God, an act of war, or an act or omission of a third party other than an employee/agent of, or a party under a contractual relationship with the, defendant.[160] Both OPA and CERCLA prohibit double recovery for an injury to natural resources.[161]

CERCLA prohibits retroactive liability for damages wholly occurring before December 11, 1980.[162] CERCLA also precludes liability where resources have been irretrievably committed in an environmental impact statement where the discharge of hazardous substances is in compliance with an authorized permit. Damages for such a release are still available under existing law, including the common law.[163] Both OPA and CERCLA specify a three year statute of limitations from the date of discovery of the loss of natural resources or the date of promulgation of natural resource damage regulations until an action is brought to recover damages.[164]

Total liability under CERCLA is limited to $50 million for natural resource damages.[165] Total liability under OPA is dependent on the type of facility discharging oil. Tank vessels are liable for the greater of $1,200 per gross ton or, either $10 million (for vessels greater than 3,000 gross tons) or $2 million (for vessels less than or equal to 3,000 gross tons).[166] Offshore facilities are liable for up to $75 million[167] while onshore facilities and deepwater ports are liable for up to $350 million.[168]

3. Natural Resources Trustees

A significant factor in both OPA and CERCLA provisions is the designation of public trustees to act on behalf of the public interest to recover for natural resource damages. Both OPA and CERCLA designate the President or an authorized representative of any state, Indian tribe, or foreign government to act as a trustee for natural resources.[169] President Reagan designated the Secretaries of Defense, Interior, Agriculture, Commerce, and Energy to serve as federal trustees, with one of the trustees serving as the Lead Administrative Trustee for each spill resulting in natural resource damages.[170] States are to notify the Environmental Protection Agency of the designated state trustees for natural resources.[171]

Under the law of trusts, "the trustee is under a duty . . . to take reasonable steps to realize on claims which he holds in trust."[172] The scope of a trustee's authority is limited to the specific terms creating the trust and to any actions "necessary or appropriate to carry out the purposes of the trust."[173] The terms of natural resource trusts under OPA and CERCLA explicitly limit the statutorily available damages for defined injuries. OPA limits natural resource damages to restoration and replacement costs, plus the diminution in value pending restoration or replacement, and the associated assessment costs.[174] CERCLA does not limit damages to restoration and replacement costs,[175] but it requires regulations for assessing the cost of direct and indirect injuries to natural resources that consider at a minimum: replacement value, use value, and the ability of the damaged resource to naturally recover.[176] The assessed value of the natural resource has a rebuttable presumption of validity as provided by the statutes.[177]

4. Natural Resource Damage Assessments

The key elements in a statutory based action for natural resource damages are the determination of injury, finding of causation, and measure of compensable damages, all of which are provided in an assessment process authorized under OPA and CERCLA. The regulations for natural resource damage assessments under CERCLA and OPA have developed along separate paths, and have some important differences.

a. CERCLA Procedures

Natural resource damage assessment procedures under CERCLA provide a natural resource trustee broad discretion in assessing the value of natural resource damages. CERCLA requires designated federal officials to promulgate regulations for the assessment of natural resource damages.[178] The regulations must provide two procedures: a standard procedure for simple assessments based on the discharge or the affected area, and alternative protocols for more extensive measurements to evaluate the type and extent of short and long term damages, including both direct and indirect damages.[179] The procedure for simple assessments has limited circumstances under which it can be utilized,[180] and is rarely used in CERCLA natural resource damage assessments.[181]

The Department of the Interior (DOI) promulgated the first version of damage assessment rules for the more extensive assessments in 1986.[182] The rule required trustees to chose the lesser of restoration or replacement costs or diminution of use values as the measure of natural resource damages, except where restoration or replacement was not technically feasible.[183] In calculating diminution of use values, trustees were to first consider market valuation.[184] If it was determined that market valuation was inappropriate, trustees were to appraise a loss of market value using uniform appraisal standards.[185] If neither market valuation nor appraisal were appropriate measures of value, trustees could use contingent valuation methods, travel cost valuation, or hedonic modeling.[186] Contingent valuation was to be used in estimating non-use values only when use values could not be measured.[187]

Upon promulgation the rule was challenged in Ohio v. United States Department of the Interior.[188] States and environmental organizations claimed the assessment process undervalued natural resource damages while industry interests claimed that the rule overvalued natural resource damages.[189] The Circuit Court of the District of Columbia consolidated all actions against the new rule in one suit.[190] The rule was evaluated under the two step test set forth in Chevron U.S.A., Inc. v. Natural Resource Defense Council, Inc.[191] to determine whether there was an unambiguous congressional intent, and if not, whether the rule was a reasonable construction of the statute and therefore within the DOI's delegated discretion.[192]

The most substantial holding of Ohio was that the 'lesser of' rule, requiring trustees to chose between the lesser of replacement or restoration costs or diminution of use values, violated the intent of congress to give preference to restoration cost as the measure of damages.[193] However, the court did allow for the use of other valuation methods where restoration was infeasible or grossly disproportionate to use value.[194] Additionally, the hierarchy of methods was held to be unreasonable in not accounting for non-use values such as existence and option value,[195] and the rule was remanded to DOI for clarification of the authority of trustees for natural resource damages on lands not owned by the government.[196]

The DOI did not appeal the Ohio court's decision and revised the rule accordingly.[197] Under the new rule, natural resource damage assessments occur in three stages: injury determination; quantification; and damage determination.[198] The method for injury determination includes defining the injury, determining the pathway connecting the cause to the injury, and testing and evaluating the natural resource to statistically determine the cause of the injury.[199] During the quantification step, the trustee characterizes the injury in terms of a reduction in natural resource services from a baseline state as well as the time needed for the resources to recover.[200]

The damage determination stage was the most significant revision of the rule. The measure of damages established in the new rule is the cost of restoration or replacement of the damaged resource.[201] Additionally, compensable value, the value of the lost services of the resource during the time period from the injury until baseline conditions have been reattained,[202] is available for recovery at the discretion of the trustee.[203] The trustee can chose between several valuation methods for estimating compensable value, including market valuation, appraisal, factor income, travel cost, hedonic pricing, unit value, contingent valuation, or other suitable valuation methods.[204] The use of contingent valuation for measuring option and existence value is available only when the trustee determines there are no relevant use values.[205]

b. OPA Procedures

OPA is more explicit in natural resource damage assessment procedures, but does provide trustees some discretion in assessing value. Congress passed OPA in 1990 with the Ohio decision in hindsight, and used the Ohio case to draft the natural resource damages provisions of the new statute.[206] OPA expressly mandates the measure of damages as the cost of restoration or replacement, the diminution in value pending restoration, and assessment costs.[207] OPA regulations divide the trustee's responsibilities into a preassessment phase, a restoration planning phase, and a restoration imple mentation phase.[208]

During the preassessment phase, the trustee determines whether there has been release of oil to which OPA applies.[209] In the restoration planning phase, the trustee assesses potential injuries to natural resources, quantifies the degree of injury relative to a baseline, and evaluates alternatives for restoration.[210] At a minimum, the trustee must consider a natural recovery alternative and an active restora tion alternative.[211]

A unique feature of the restoration planning phase requires trustees to consider compensatory restoration for each alternative.[212] Similar to compensatory value in CERCLA damage assessment rule, compensatory restoration is intended to compensate the public with resource services of similar type and of comparable value to the damaged resources until restoration is complete.[213] The trustee is to evaluate all alternatives based on cost, extent of restoration to be achieved, likelihood of success, extent of preventing future injury, benefits to multiple resources, and the effects on public health and safety.[214] Finally, the trustee is to select and implement the preferred restoration alternative.[215]

C. Common Law Actions and Natural Resource Trustees

The designation of federal and state agencies as natural resource trustees has radically altered the common law regime for litigation over natural resource damages. Both CERCLA and OPA limit natural resource damage claims to designated trustees,[216] denying standing to local governments and private parties to bring suit for natural resource damages.[217] CERCLA and OPA do not limit states from imposing additional liability requirements or creating addi tional rights of action,[218] and the provisions of CERCLA do not modify obligations or liabilities under any other law, including the common law.[219] Therefore, local governments and private parties have full authority provided to them under state statutes or common law.

The prohibition on double recovery for natural resource damages[220] raises the issue of when a designated trustee has preempted the right of action of local governments and private parties. This is a minor issue for parties seeking injunctive relief where the trustee is seeking restoration damages, as the citizen suit provision of CERCLA provides a right of action against the trustee for restoring the resource.[221] However, where replacement is the selected remedy, the preclusion of a claim for injunction is a substantial loss to the local government or private party as the replacement resources are unlikely to be the property of the party seeking injunction.

For compensatory value or other use values claimed as damages under CERCLA, the rights of trustees may overlap with the justiciable interests of other parties. Recovery of natural resource damages by the trustees for these uses will preclude recovery by other parties.[222] Where damaged natural resources are located on private property that is under substantial government control, the private property owners may be precluded from recovery for property damage.[223] This is not an issue for cases where restoration is the selected alternative once the resources have been restored. However, it is a factor for compensatory value under CERCLA or compensatory restoration under OPA, where damages for use value during restoration are accounted for.[224]

Very few natural resource damages claims are fully assessed according to regulatory guidelines. In most cases, the responsible party negotiates a settlement for natural resource damages concurrently with a settlement for cleanup costs.[225] For the purposes of settlement, resource trustees typically use readily available literature and other information to estimate the value of natural resource damages without necessarily following the full assessment procedure in the regulation.[226] The terms of the negotiated settlement typically commit the government to releasing the responsible party from any and all claims for natural resource damages, with preclusive effects for other parties seeking the same natural resource damages.[227]

V. CONCLUSIONS

The law of natural resource damages is a complex mix of common law doctrines and statutory rights in an area of law that reflects many different values among parties with different rights in a common cause of action. The law that exists today has developed over years of research and litigation, and presents a reasonable framework for addressing natural resource damages.

The advent of federal statutes designating trustees on behalf of the public interest is one of the most significant developments in the law of natural resource damages. By constructing a trust to protect natural resources, federal statutes demonstrate the importance of natural resources to the nation by obligating trustees to recover for damages in the interest of the trust. The recent development of preference for restoration or replacement costs as the presumptive remedy improves the adequacy of the law by including existence values as well as use values in the measure of damages.

However, the federal statutory framework does create some problems within the law of natural resource damages. The most significant issue that remains to be resolved is the preclusion of claims of private parties and local governments under common law when natural resource damages have been collected by resource trustees. This is particularly important in situations where damages to private property are precluded on the basis of a natural resource damages judgement or settlement to resource trustees.

Affirmatively avoiding preclusion of other parties claims should be developed as a policy of natural resource trustees. OPA and CERCLA damage assessment rules should be modified to include a prescriptive procedure for trustees to determine the potential for precluding other party claims. Such a procedure would best be incorporated into OPA procedures for compensatory restoration or CERCLA procedures for compensatory value, where the possibility of including preclusive damages exists.

Another modification that would improve the natural resource damage assessment procedure is to give preference to restoration over replacement. Restoration should be the presumed standard, as it is the only valuation method that is fully inclusive of all measures of value, including intrinsic value. Restoration avoids the net loss of resources that is characteristic in replacement value. Additionally, as a technology-forcing method, restoration encourages the develop ment of technologies for implementing restoration that reduce restoration costs over time.

CERCLA regulations provide no preference between restoration and replacement.[228] OPA regulations offer some improvement by including as one of six factors the extent to which the injured natural resources are returned to their natural condition in alternative selection.[229] Both regulations should be modified to include a hierarchy of alternatives with restoration as the preferred alternative unless it is shown to be impracticable. Only in such cases should the trustee consider replacement or other valuation methods in the natural resource damage assessment.

These subtle changes to the existing regulations would yield broad improvements in the law of natural resource damages. Parties with actionable rights in natural resources will have assurance that their rights will not be precluded by resource trustees without a credible evaluation of their interests. A more inclusive and comprehensive value of natural resources will be accounted for as trustees would be committed to the restoration of damaged resources, recognizing all values inherent in the resources. With these changes, the coalition of private interests and public trustees will together form a more comprehensive stewardship of the land and provide a truer measure of justice for nature.

APPENDIX

Table 1

Values Included in Common Natural Resource Valuation Methods

A Biocentric

nthro Values pocen tric< R> V alues Use No Value n Use s

Values Existe Intrinsic

nce Value Value Valuati Vicar Inter- Option on ious

a Method: te mporal Market Xb valuati on Restora X X X X X tion cost Replace X X X X ment cost Conting X X X X ent valuati on Conting X X X X ent behavio r Hedonic Xc modelin g Travel Xc cost valuati on

a. Option value can be considered a use value, or a separate value between use and nonuse values.
b. Market valuation does not include nonconsumptive uses and indirect uses which are not reflected in market transactions.
c. Hedonic modeling and travel cost valuation tend to underestimate the value of marginal damages to natural resources.

_______________________________

[*] J.D. May 1999, Arizona State University College of Law; B.S Engineering, December 1988, University of Arizona, College of Engineering and Mines. A preliminary version of this article won third place in the 1998 Roscoe Hogan Environmental Law Contest. The winning article can be viewed at the home page of Res Communes: Vermont's Journal of the Environment, the online environmental journal of Vermont Law School, .Return to text.

[1] See Exxon Valdez: The Spill, the Cleanup and the Charges, N.Y. TIMES, Mar. 1, 1990 at D25.Return to text.

[2] See Oil Spill Public Information Center, What Happened on March 24, 1989, (visited Apr. 8, 1999) . See Microsoft Encarta '95, Exxon Valdez (1994).Return to text.

[4] See Oil Spill Public Information Center, supra note 2.Return to text.

[5] See id.Return to text.

[6] See Bureau of National Affairs, Inc., Oil Spills: Seabird Death Rate from Exxon Valdez Spill Higher than Originally Thought, GAO Reports, 22 ENV'T REP. 1948 (1991).Return to text.

[7] See Microsoft Encarta '95, supra note 3.Return to text.

[8] See John Duffield, Nonmarket Valuation and the Courts: The Case of the Exxon Valdez, CONTEM. ECON. POL'Y, October 1997, at 98-99. See also In re the Exxon Valdez, 1995 U.S. Dist. LEXIS 12952 (D. Alaska 1995) (addressing Exxon's motion for judgement as a matter of law on the punitive damages claim).Return to text.

[9] See Exxon Valdez Oil Spill Trustee Council, Historical Overview of the Exxon Valdez: What Happened on March 24, 1989 (visited Apr. 8, 1999) [hereinafter Historical Overview]. The damage assessment was the most extensive in U.S. history, with 164 separate studies at a cost of over $100 million. See id.Return to text.

[10] See id. Return to text.

[11] See Judge Accepts Exxon Pact, Ending Suits on Valdez Spill, N.Y. TIMES, October 9, 1991, at A14.Return to text.

[12] See id.Return to text.

[13] See Exxon Valdez Oil Spill Trustee Council, What is the Trustee Council? (visited Apr. 9, 1999) . Return to text.

[14] See Historical Overview, supra note 9.Return to text.

[15] See id.Return to text.

[16] See id.Return to text.

[17] See Raymond J. Kopp & V. Kerry Smith, Understanding Damages to Natural Assets, in VALUING NATURAL ASSETS, THE ECONOMICS OF NATURAL RESOURCE DAMAGE ASSESSMENT 6, 10-11 (Raymond J. Kopp & V. Kerry Smith eds., 1993). Common definitions of natural resources include "those actual and potential forms of wealth supplied by nature, such as coal, oil, water power, arable land, etc.," WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY 1197 (2d ed. 1983), and "[a]ny material in its native state which when extracted has economic value. . . . The term includes not only timber, gas, oil, coal, minerals, lakes, and submerged lands, but also, features which supply a human need and contribute to the health, welfare, and benefit of a community, and are essential to the well-being thereof. . . ." BLACK'S LAW DICTIONARY 1027 (6th ed. 1996).Return to text.

[18] See STUDY OF CRITICAL ENVIRONMENTAL PROBLEMS (SCEP), MAN'S IMPACT ON THE GLOBAL ENVIRONMENT 123-125 (1970).Return to text.

[19] The definition of natural resources in modern federal environmental statutes include "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources . . . ." See e.g. Oil Pollution Act, 33 U.S.C. § 2701(20) (1994); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601(16) (1994). Return to text.

[20] See Harold A. Mooney & Paul R. Ehlrich, Ecosystem Services: A Fragmentary History, in NATURE'S SERVICES 11, 13-14 (Gretchen C. Daily ed., 1997).Return to text.

[21] See Gretchen C. Daily, Introduction: What Are Ecosystem Services?, in NATURE'S SERVICES 1, 3-4 (Gretchen C. Daily ed., 1997). Seventeen ecosystem services were recently identified and economically evaluated, with an estimated worldwide valuation of $33 trillion per year, considerably in excess of total global gross national product of $18 trillion per year. See Robert Costanza et al., The Value of the World's Ecosystem Services and Natural Capital, 387 NATURE 253, 253-54 (1997).Return to text.

[22] See Eric T. Freyfogle, The Land Ethic and Pilgrim Leopold, 61 U. COLO. L. REV. 217, 227-41 (1990).Return to text.

[23] See Frank B. Cross, Natural Resource Damage Valuation, 42 VAND. L. REV. 269, 285-92 (1989).Return to text.

[24] See Lawrence H. Goulder & Donald Kennedy, Valuing Ecosystem Services: Philosophical Bases and Empirical Methods, in NATURE'S SERVICES 23, 24-27 (Gretchen C. Daily ed., 1997).Return to text.

[25] See id. at 24.Return to text.

[26] See id. at 25.Return to text.

[27] See Cross, supra note 23, at 281. See also Jeffrey C. Dobbins, The Pain and Suffering of Environmental Loss: Using Contingent Valuation to Estimate Nonuse Damages, 43 DUKE L.J. 879, 898-99 (1994) (discussing "nonconsumptive use values such as bird watching and reading about others' use of the resource").Return to text.

[28] See Goulder and Kennedy, supra note 24, at 25.Return to text.

[29] See Cross, supra note 23, at 285.Return to text.

[30] See id. at 285-86.Return to text.

[31] See id. at 286. Cross distinguishes option values from other existence values in that there is often an existing market value for option values, such as commodity future markets. See id. at 281-92. Some authors would consider option value a use value, or somewhere between use and existence values. See Dobbins, supra note 27, at 900.Return to text.

[32] See Cross, supra note 23, at 292-93.Return to text.

[33] Deep ecology rejects anthropocentrism and asserts the equal moral worth of all living things. See A. Don Tarlock, Earth and Other Ethics: The Institutional Issues, 56 TENN. L. REV. 43, 60 (1988).Return to text.

[34] The animal rights movement asserts that it is morally wrong to inflict pain, and animal species other than humans have intrinsic rights insofar as they are sentient of pleasure and pain. See Goulder & Kennedy, supra note 24, at 26.Return to text.

[35] "A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise." ALDO LEOPOLD, A SAND COUNTY ALMANAC 262 (1966).Return to text.

[36] See Cross, supra note 23, at 285-97. Criminal and civil sanctions for violations of environmental laws may be justified on an intrinsic value basis. See e.g. Resource Conservation and Recovery Act, 42 U.S.C. § 6928(c), (d) (1994) (penalties for illegal disposal of hazardous wastes); Endangered Species Act, 16 U.S.C. §1540(a), (b) (1994) (penalties for violations of the Act). However as noted by Dobbins, supra note 27, 880 n.3, even the Endangered Species Act is utilitarian in the creation of the endangered species committee to balance economic cost-benefits with the loss of a species. See 16 U.S.C. §§ 1536 (e). Return to text.

[37] See Goulder & Kennedy, supra note 24, at 26. Return to text.

[38] For an argument that natural resources should have recognized legal rights, see Christopher D. Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972). See also Sierra Club v. Morton, 405 U.S. 727, 741-42 (1972) (Douglas, J., dissenting) (arguing for conferring standing upon environmental objects).Return to text.

[39] See Cross, supra note 23, at 297.Return to text.

[40] See id. at 298, 302-303. Cross notes that diminution of property value is the common law measure of damages as stated in RESTATEMENT (SECOND) OF TORTS § 929(1)(a) (1979). See id. at 303 n.174. Return to text.

[41] See Raymond J. Kopp & V. Kerry Smith, Implementing Natural Resource Damage Assessments, in VALUING NATURAL ASSETS, THE ECONOMICS OF NATURAL RESOURCE DAMAGE ASSESSMENT 118, 131 (Raymond J. Kopp & V. Kerry Smith eds., 1993).Return to text.

[42] See Cross, supra note 23, at 303.Return to text.

[43] See Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 1 (1960).Return to text.

[44] See Cross, supra note 23, at 307. See also Ohio v. Department of the Interior, 880 F.2d 432, 438 (D.C. Cir. 1989) (holding that market values for lost natural resources were not a reasonable interpretation of CERCLA natural resource damages provisions). Return to text.

[45] See Kopp & Smith, supra note 17, at 8-9.Return to text.

[46] See Cross, supra note 23, at 298.Return to text.

[47] See Kathryn C. MacDonald, Comment, The Recovery of Restoration Costs: Analytical Synthesis of Common-Law Property Damages, Restitution, and Natural Resource Damages Under CERCLA, 5 TUL. ENVTL. L. J. 255, 262-63 (1991). However, the cost of restoration can seem excessive in situations where it is compared "against a valuation method that tends to yield low natural resource values." Cross, supra note 23, at 335. Return to text.

[48] See id. at 334. Return to text.

[49] See Carl J. Phillips and Richard J. Zeckhauser, Confronting Natural Resource Damages: the Economist's Perspective, in NATURAL RESOURCE DAMAGES: A LEGAL, ECONOMIC, AND POLICY ANALYSIS 119, 133-36 (Richard B. Steward, ed., 1995). For an argument that restoration cost is the only economically efficient remedy for damages to natural resources, see Heidi Wendel, Restoration as the Economically Efficient Remedy for Damage to Publicly Owned Natural Resources, 91 COLUM. L. REV. 430 (1991).Return to text.

[50] See Gretchen Daily, et al., Ecosystem Services: Benefits Supplied to Human Societies by Natural Ecosystems, 2 ISSUES IN ECOLOGY 11 (1997).Return to text.

[51] See Cross, supra note 23, at 301.Return to text.

[52] See id. at 302.Return to text.

[53] See id. Return to text.

[54] See William D. Schulze, Use of Direct Methods for Valuing Natural Resource Damages, in VALUING NATURAL ASSETS, THE ECONOMICS OF NATURAL RESOURCE DAMAGE ASSESSMENT 204, 207 (Raymond J. Kopp & V. Kerry Smith eds., 1993).Return to text.

[55] See id.Return to text.

[56] See The Price of Imagining Arden, THE ECONOMIST, December 3, 1994, at 80.Return to text.

[57] See Schulze, supra note 54, at 205.Return to text.

[58] See WILLIAM H. DESVOUSGES, THE ROLE OF CONTINGENT VALUATION IN NATURAL RESOURCE DAMAGE ASSESSMENT 3 (Triangle Econ. Research General Working Paper No. G-9502, 1995).Return to text.

[59] See Peter A. Diamond & Jerry A. Hausman, Contingent Valuation Measurement of Nonuse Values, in NATURAL RESOURCE DAMAGES: A LEGAL, ECONOMIC, AND POLICY ANALYSIS 61, 82 (Richard B. Stewart ed., 1995).Return to text.

[60] See Dobbins, supra note 27, at 883.Return to text.

[61] See Richard T. Carson & Robert Cameron Mitchell, Contingent Valuation and the Legal Arena, in VALUING NATURAL ASSETS, THE ECONOMICS OF NATURAL RESOURCE DAMAGE ASSESSMENT, 231, 231 (Raymond J. Kopp & V. Kerry Smith eds., 1993).Return to text.

[62] See A. Myrick Freeman III, Nonuse Values in Natural Resource Damage Assessment, in VALUING NATURAL ASSETS, THE ECONOMICS OF NATURAL RESOURCE DAMAGE ASSESSMENT 264, 288-89 (Raymond J. Kopp & V. Kerry Smith eds., 1993).Return to text.

[63] See The Price of Imagining Arden, supra note 56, at 80.Return to text.

[64] See Kenneth E. McConnell, Indirect Methods for Assessing Natural Resource Damages Under CERCLA, in VALUING NATURAL ASSETS, THE ECONOMICS OF NATURAL RESOURCE DAMAGE ASSESSMENT 153, 154 (Raymond J. Kopp & V. Kerry Smith eds., 1993).Return to text.

[65] See Robert Mendelsohn, Assessing Natural Resource Damages with Indirect Methods: Comments on Chaper 8, in VALUING NATURAL ASSETS, THE ECONOMICS OF NATURAL RESOURCE DAMAGE ASSESSMENT 197, 202 (Raymond J. Kopp & V. Kerry Smith eds., 1993).Return to text.

[66] See McConnell, supra note 64, at 163.Return to text.

[67] See id. at 172.Return to text.

[68] See Cross, supra note 23, at 313-15.Return to text.

[69] See id. at 310.Return to text.

[70] See id.Return to text.

[71] See id. at 313.Return to text.

[72] See id. at 311.Return to text.

[73] See id. Return to text.

[74] See id at 313.Return to text.

[75] See Carol A. Jones et al., Public and Private Claims in Natural Resource Damage Assessments, 20 HARV. ENVTL. L. REV. 111, 118-23 (1996). Return to text.

[76] See Cross, supra note 23, at 277-78.Return to text.

[77] See Jones et al., supra note 75, at 118.Return to text.

[78] See Hughes v. Oklahoma, 441 U.S. 322, 337 (1979) (holding that states' interests in conservation of wildlife was a legitimate statutory purpose similar to a states' interest in protecting health and safety of its citizens).Return to text.

[79] See Cross, supra note 23, at 277-280.Return to text.

[80] See San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621,656 (1985).Return to text.

[81] See Faith Halter & Joel T. Thomas, Recovery of Damages by States for Fish and Wildlife Losses Caused by Pollution, 10 ECOLOGY L.Q. 5, 9 (1982).Return to text.

[82] See Borough of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1051 (D.N.J. 1993) (holding that municipalities and private parties have standing under the New Jersey Spill Act).Return to text.

[83] See Halter and Thomas, supra note 81, at 9.Return to text.

[84] 161 U.S. 519 (1896), overruled by Hughes v. Oklahoma, 441 U.S. 322 (1979).Return to text.

[85] See id. at 529-30.Return to text.

[86] 441 U.S. 322 (1979).Return to text.

[87] See id. at 335-36.Return to text.

[88] See id. at 335.Return to text.

[89] See Halter and Thomas, supra note 81, at 12-13.Return to text.

[90] See BLACK'S LAW DICTIONARY 769 (6th ed. 1996).Return to text.

[91] See Hawaii v. Standard Oil Co., 405 U.S. 251, 257-59 (1972).Return to text.

[92] See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 604-05 (1982).Return to text.

[93] See Scott Kerin, Alaska Sport Fishing Association v. Exxon Corporation Highlights the Need to Take a Hard Look at the Doctrine of Parens Patriae When Applied in Natural Resource Damage Litigation, 25 ENVTL. L. 897, 921-22 (1995).Return to text.

[94] See Maine v. M/V Tamano, 357 F. Supp 1097, 1102 (D. Me. 1973).Return to text.

[95] RESTATEMENT (SECOND) OF TORTS §§ 821B(1) (1979).Return to text.

[96] See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 90, at 645-46 (5th ed. 1984).Return to text.

[97] See John E. Bryson & Angus Macbeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 ECOLOGY L.Q. 241, 249 (1972).Return to text.

[98] See Carter H. Strickland, Jr., The Scope of Authority of Natural Resource Trustees, 20 COLUM. J. ENVTL. L. 301, 315 (1995).Return to text.

[99] See KEETON ET AL., supra note 96, § 90, at 645.Return to text.

[100] See Bryson & Macbeth, supra note 97, at 274.Return to text.

[101] See Hughes v. Oklahoma, 441 U.S. 322, 334-35 (1979).Return to text.

[102] See Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892).Return to text.

[103] See Strickland, supra note 98, at 314.Return to text.

[104] See id.Return to text.

[105] See Thomas A. Campbell, The Public Trust, What's It Worth? 34 NAT. RESOURCES J. 73, 77-78 (1994).Return to text.

[106] Some states have legislatively expanded the common law public trust doctrine to include all natural resources. See id. at 83.Return to text.

[107] See discussion infra pp. 24-28.Return to text.

[108] See Jones et al., supra note 75, at 119.Return to text.

[109] See id. at 119-21.Return to text.

[110] See KEETON ET AL., supra note 96, § 31, at 169.Return to text.

[111] See id. § 30, at 164-165.Return to text.

[112] See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).Return to text.

[113] See KEETON ET AL., supra note 96, § 38, at 239.Return to text.

[114] See Keum J. Park, Judicial Utilization of Scientific Evidence in Complex Environmental Torts: Redefining Litigation Driven Research, 7 FORDHAM ENVTL. L.J. 483, 483-85 (1996).Return to text.

[115] See KEETON ET AL., supra note 96, § 40, at 257-58. The elements of res ipsa loquitur include: a lack of evidence of defendant's conduct; the injury ordinarily does not occur except through negligence; the instrument of injury was in the defendant's exclusive control; and the injury was not of the plaintiff's own action. See RESTATEMENT (SECOND) OF TORTS, § 328D (1979).Return to text.

[116] See KEETON ET AL., supra note 96, § 40, at 258-59.Return to text.

[117] See id. § 86, at 618.Return to text.

[118] See id. § 87, at 619. Return to text.

[119] See id. § 87, at 621. Return to text.

[120] See id.Return to text.

[121] See id. § 89, at 637-643 (stating that injunctions will only be available in cases where money damages are not an adequate remedy). For nuisances that cannot be abated at reasonable cost, including many natural resource injuries, courts will not likely enjoin the nuisance but will provide damages equal to the lost market value. See id. § 89, at 638. See also Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970) (finding that the plaintiffs were entitled to an injunction but that it would cause the defendant substantial economic harm. Therefore, the court held that the defendant could continue to operate upon payment to the plaintiffs of damages which would compensate them for total present and future economic loss of their property).Return to text.

[122] See Urie v. Franconia Paper Corp., 218 A.2d 360, 362 (N.H. 1966).Return to text.

[123] See KEETON ET AL., supra note 96, § 89, at 640-41.Return to text.

[124] See id. § 86, at 618.Return to text.

[125] See id. § 90, at 646-47.Return to text.

[126] See Burgess v. M/V Tamano, 370 F. Supp. 247, 250-51 (D. Me. 1973).Return to text.

[127] See RESTATEMENT (SECOND) OF TORTS § 821C (1979).Return to text.

[128] See KEETON ET AL., supra note 96, at 70.Return to text.

[129] See id.Return to text.

[130] See id. § 13, at 73.Return to text.

[131] See id. § 13, at 76.Return to text.

[132] See RESTATEMENT (SECOND) OF TORTS § 520 (1979).Return to text.

[133] See id.Return to text.

[134] See KEETON ET AL., supra note 96, § 78, at 549-50.Return to text.

[135] See id. § 78, at 550.Return to text.

[136] See Indiana Harbor Belt R.R. v. American Cyanamid Co., 916 F.2d 1174, 1179-80 (7th Cir. 1990) (holding that the accidental spill of toxic substances in the middle of a city can be adequately addressed under negligence liability).Return to text.

[137] Federal statutes must be based on constitutionally enumerated powers. Common powers used to justify federal protection of natural resources include the commerce power, U.S. CONST. art. I, § 8, cl. 3, the property clause, U.S. CONST. art. IV, § 3, cl. 2, and the treaty power, U.S. CONST. art. VI, cl. 2.Return to text.

[138] 42 U.S.C. §§ 9607-9675 (1994).Return to text.

[139] 33 U.S.C. §§ 2701-2761 (1994).Return to text.

[140] The Clean Water Act (CWA) contains provisions for natural resource damages. 33 U.S.C. § 1321(f)(5) (1994). As the CWA provisions address releases of oil and hazardous substances to navigable waters, most CWA natural resource damage claims are adequately addressed under OPA and CERCLA, respectfully. See also National Marine Sanctuaries Act, 16 U.S.C. §§ 1431-1445 (1994) (identifying areas of the marine environment that are of national significance and designating them as national marine sanctuaries); Trans-Alaska Pipeline Authorization Act, 43 U.S.C. §§ 1651-1656 (1994) (dealing with the delivery of oil and gas from Alaska's North Slope to domestic markets).Return to text.

[141] See 42 U.S.C. § 9607(a)(4)(C) (1994); 33 U.S.C. § 2702(b)(2)(A) (1994).Return to text.

[142] See Roscoe Trimmier, Jr. & Jay B. Smith, The Scope of Natural Resource Damage Liability Under CERCLA, in NATURAL RESOURCE DAMAGES: A LEGAL, ECONOMIC, AND POLICY ANALYSIS 9, 12 (Richard B. Stewart ed., 1995).Return to text.

[143] See 42 U.S.C. § 9607(f) (1994).Return to text.

[144] See 33 U.S.C. § 2702(a) (1994).Return to text.

[145] See id. § 2701(32).Return to text.

[146] See id. § 2702(c).Return to text.

[147] See United States v. Monsanto Co., 858 F.2d 160, 171 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989) (upholding strict and joint and several liability under the CERCLA unless defendant can prove contribution); Craig R. O'Connor, Natural Resource Damage Actions under the Oil Pollution Act of 1990: A Litigation Perspective, 45 BAYLOR L. REV. 441, 442 (1993) (discussing legislative intent for strict, joint and several liability under OPA).Return to text.

[148] 33 U.S.C. § 2701(20) (1994); 42 U.S.C. § 9601(16) (Supp. II 1996) (substantially similar language).Return to text.

[149] See Ohio v. Department of the Interior, 880 F.2d 432, 461 (1989).Return to text.

[150] See 43 C.F.R. § 11.14(v) (1998). Return to text.

[151] Id.Return to text.

[152] See 15 C.F.R. § 990.30 (1998).Return to text.

[153] See 42 U.S.C. § 9607 (f)(1) (1994); 33 U.S.C. § 2706(a) (1994).Return to text.

[154] See 42 U.S.C. § 9606 (a).Return to text.

[155] See Exec. Order No. 12,580, 52 Fed. Reg. 2923, 2926 (1987).Return to text.

[156] See id.Return to text.

[157] See 42 U.S.C. § 9607 (a)(4)(C) (requiring natural resource damages result from a release of hazardous substances to establish liability).Return to text.

[158] See 43 C.F.R. § 11.62 (1998) (providing a procedure for establishing causation for water resources, geological resources, and biological resources injury). This regulation was upheld in Ohio v. Department of the Interior, 880 F.2d 432, 468-73 (D.C. Cir. 1989).Return to text.

[159] To demonstrate injury and causation, the resource must be characterized, samples collected and statistically compared to measure injury, and the discharge modeled through various possible pathways. See 43 C.F.R. § 11.61.Return to text.

[160] See 33 U.S.C. § 2703(a) (1994); 42 U.S.C. § 9607(b) (1994).Return to text.

[161] See 33 U.S.C. § 2706 (d)(3); 42 U.S.C. § 9612 (f).Return to text.

[162] See 42 U.S.C. § 9607(f)(1). See also In re Acushnet River & New Bedford Harbor, 716 F. Supp. 676, 685-86 (D. Mass. 1989) (holding that damages are distinct from injury, and damages apply at the time money is spent for remedial action).Return to text.

[163] See 42 U.S.C. § 9607(j). Return to text.

[164] See 33 U.S.C. § 2717(f)(1); 42 U.S.C. § 9613(g)(1). OPA replaces the date of promulgation of natural resource damage regulations with the date of completion of a natural resource damage assessment. 33 U.S.C. § 2717(f)(1). Return to text.

[165] See 42 U.S.C. § 9607(c)(1)(D) (1994).Return to text.

[166] See 33 U.S.C. § 2404(a)(1) (1994).Return to text.

[167] See id. § 2704(a)(3).Return to text.

[168] See id. § 2704(a)(4).Return to text.

[169] See id. § 2706(b)(1); 42 U.S.C. § 9607(f)(1).Return to text.

[170] See Exec. Order No. 12,580, 52 Fed. Reg. 2923, 2923-24 (1987).Return to text.

[171] See 33 U.S.C. § 2706(b)(3); 42 U.S.C. § 9607(f)(2)(B); Exec. Order No. 12,580, 52 Fed. Reg. 2923, 2936 (1987). However it has been held that states have authority to bring actions for natural resource damages under the CERCLA even if they have not registered with the EPA. See Idaho v. Southern Refrigerated Transp. Inc., 1991 U.S. Dist LEXIS 1869, 12 (D. Idaho 1991).Return to text.

[172] RESTATEMENT (SECOND) OF TRUSTS § 177 (1959).Return to text.

[173] Id. § 186.Return to text.

[174] See 33 U.S.C. § 2706(d)(1) (1994).Return to text.

[175] See 42 U.S.C. § 9607(f)(1) (1994).Return to text.

[176] See id. § 9651(c).Return to text.

[177] See 33 U.S.C. § 2706(e)(2); 42 U.S.C. § 9607(f)(2)(C).Return to text.

[178] See 42 U.S.C. § 9651(c)(1) (1994). President Reagan delegated rule development to the Secretary of the Interior. See Exec. Order No. 12,580, 52 Fed. Reg. 2923, 2928 (1987).Return to text.

[179] See 42 U.S.C. § 9651(c)(2). Return to text.

[180] See 43 C.F.R. § 11.34 (1998).Return to text.

[181] See U. S. GENERAL ACCOUNTING OFFICE, GAO/RCED-96-71, SUPERFUND: OUTLOOK FOR AND EXPERIENCE WITH NATURAL RESOURCE DAMAGE SETTLEMENTS 10 (1996) [hereinafter GAO REPORT].Return to text.

[182] See National Resource Damage Assessments, 51 Fed. Reg. 27,725 (1986) (codified at 43 C.F.R. pt. 11 (1987)).Return to text.

[183] See 43 C.F.R. § 11.35(b)(2) (1987).Return to text.

[184] See id. § 11.83(c)(1).Return to text.

[185] See id. § 11.83(c)(2).Return to text.

[186] See id. § 11.83(d). Return to text.

[187] See id. § 11.83(d)(5)(ii).Return to text.

[188] 880 F.2d 432 (D.C. Cir. 1987).Return to text.

[189] See id. at 438. Return to text.

[190] See id. Return to text.

[191] 467 U.S. 837, 842-44 (1984).Return to text.

[192] See Ohio, 880 F.2d at 441.Return to text.

[193] See id. at 459.Return to text.

[194] See id. Return to text.

[195] See id. at 464.Return to text.

[196] See id. at 461.Return to text.

[197] See 59 Fed. Reg. 14,283 (1994) (codified at 43 C.F.R. pt. 11(1998)).Return to text.

[198] See 43 C.F.R. §§ 11.60(b) (1998).Return to text.

[199] See id. §§ 11.61-11.64.Return to text.

[200] See id. § 11.70.Return to text.

[201] See id. § 11.80(b).Return to text.

[202] See id. § 11.83(c)(1). Return to text.

[203] See id. § 11.80(b).Return to text.

[204] See id. § 11.83(c)(2).Return to text.

[205] See id. § 11.83(c)(2)(vii)(B).Return to text.

[206] See James S. Seevers, Jr., Note, NOAA's New Natural Resource Damage Assessment Scheme: It's Not About Collecting Money, 53 WASH. & LEE L. REV. 1513, 1535 (1996).Return to text.

[207] See 33 U.S.C. § 2706(d) (1994).Return to text.

[208] See 15 C.F.R. § 990.12 (1998).Return to text.

[209] See id. § 990.41.Return to text.

[210] See id. §§ 990.50-990.56. Return to text.

[211] See id. § 990.53(b).Return to text.

[212] See id. § 990.53(c).Return to text.

[213] See id.Return to text.

[214] See id. § 990.54(a).Return to text.

[215] See id. §§ 990.60-990.66.Return to text.

[216] See 42 U.S.C. § 9607(f)(1) (1994); 33 U.S.C. § 2706(a) (1994). Return to text.

[217] See Artesian Water Co. v. New Castle County, 851 F.2d 643, 644-45 (3d Cir. 1988) (affirming the district court's holding that private organizations generally cannot bring an action for natural resource damages under CERCLA); Mayor of Rockaway v. Klockner & Klockner, 811 F. Supp 1039, 1051 (D.N.J. 1993) (holding that municipality lacked standing for natural resource damage claims under CERCLA); Lutz v. Chromatex, Inc., 718 F. Supp. 413, 419 (M.D. Pa. 1989) (holding that CERCLA natural resource damage provisions do not extend to private parties). Return to text.

[218] See 42 U.S.C. § 9614(a) (1994); 33 U.S.C. § 2718(a) (1994). Return to text.

[219] See 42 U.S.C. § 9652(d). See also Leo v. General Elec. Co., 538 N.Y.S.2d 844, 847 (N.Y. App. Div. 1989) (holding that CERCLA does not preempt state law right of action). Return to text.

[220] See 33 U.S.C. § 2706(d)(3); 42 U.S.C. § 9607(f)(1). Return to text.

[221] See 42 U.S.C. § 9659(a).Return to text.

[222] See Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 774 (9th Cir. 1994) (holding that action by sport fishermen for damages was precluded by government recovery of the same damages under consent decree).Return to text.

[223] See Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1470 (10th Cir. 1993) (holding that property owners were barred from bringing claims, under common law, for natural resource damages that had been recovered by a CERCLA trustee, but could bring "claims that involved injuries to purely private parties").Return to text.

[224] See 43 C.F.R. § 11.83(c) (1998); 15 C.F.R. § 990.53(c) (1998).Return to text.

[225] See GAO REPORT, supra note 181, at 4-5.Return to text.

[226] See id. at 10-11. Return to text.

[227] See, e.g., Alaska Sport Fishing Ass'n, 34 F.3d at 774; Satsky 7 F.3d at 1468.Return to text.

[228] See 43 C.F.R. § 11.80(b)(1998). Return to text.

[229] See 15 C.F.R. § 990.54(a)(2) (1998).Return to text.