Kelley Drye has a unique and sophisticated natural resource damages (NRD) practice. Our attorneys have worked on NRD matters involving some of the largest waterways on the east and west coasts of the United States, the Gulf of Mexico and on inland rivers and groundwater plumes across the country.
In addition to liability for cleanup costs, most state and federal environmental statutes impose liability for natural resource damages. For example, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Clean Water Act (CWA) and the Oil Pollution Act (OPA) each provide that federal and state trustees, as well as tribal governments, may recover damages for injuries to natural resources and for the loss of human uses caused by hazardous substances, petroleum products and oil spills. As part of the record-setting $355 million settlement for the state of New Jersey in the Passaic River litigation, our lawyers secured $67.5 million in restoration projects that must be implemented in local, impacted communities to restore losses of human uses. By investing in parks, greenbelts and access to the Passaic River, these restoration projects will also induce additional economic activity in historically underserved areas, thus benefitting the community and the settling parties.
Claims for NRD are appreciably different from claims for the costs associated with cleaning up petroleum products and hazardous substances spilled or discharged into the environment. Often, the repercussions of oil spills and discharges of hazardous substances into the environment, especially spills and discharges into surface waters like the nation’s rivers, bays, gulfs and ports, reach far beyond any relief afforded by a cleanup. Such spills can have dramatic impacts upon the marine life, the environment and the human uses of these natural resources.
Natural Resource Damages, Trustees and Claims
Given the breadth of the resources and uses that can be impacted by significant discharges of chemicals and hazardous substances into a surface water body, NRD claims are often the most significant, complex and costly environmental claims. Because the attorneys at Kelley Drye are at the forefront of NRD litigation and related matters, we are able to add efficiencies and reduce costs through an understanding of and appreciation for the critical legal, scientific and economic factors that must be addressed to effectively prosecute or defend against such claims.
Our attorneys have researched, analyzed and become acutely familiar with the issues and expert witness disciplines related to determining baseline, as well as other important legal issues associated with NRD, such as preemption, causation, retroactivity, statutes of limitation, scope of trusteeship and resource management, and the many issues impacting overlapping trusteeship.
Through our representation of both trustees and private sector clients, Kelley Drye regularly guides our clients and their technical, economic, regulatory and ecological expert witnesses at a very high level. Our attorneys have worked as both plaintiff and defendant with expert witnesses in all facets of NRD, including baseline, fate and transport, wildlife receptors, bioaccumulation, source identification, hydrology and hydrodynamics, toxicology, chemical fingerprinting, economic impacts and quantification of damages, restoration impacts and various other disciplines involved in NRDA.
Natural Resource Damages Assessment
When an environmental crisis or injury occurs and damage is done to natural resources, effective management is an absolute necessity to mitigate the damage done to the environment. In certain instances where damage has been done to natural resources, there may be little question regarding the origin of the contamination. The main question will focus on the scope of the damage that has occurred.
Through a formal process known as a Natural Resource Damage Assessment (NRDA), intensive expert witness work is undertaken to identify and qualify the injuries to the natural resources impacted by a spill or discharge and then to translate those injuries into an economic damage or an equivalent resource or habitat. This process can be extraordinarily complex, as the NRDA typically must account for the various resources’ baseline (their condition prior to the discharge). Because industrial and residential development and use of natural resources substantially complicates the determination of baseline, the status of the affected environment prior to the release of a hazardous substance can be very difficult to ascertain.
We have decades of experience in helping both the government and members of the private sector create an accurate assessment of natural resource damages. Investigations can proceed cooperatively between the parties, or we can work to provide an independent assessment for any party. Our firm has a national reputation for finding the answers to the complicated questions that arise following an event where damage is done to natural resources. For example, our lawyers were hired by the state of Louisiana Governor’s Office and the Louisiana Oil Spill Coordinator’s Office to assist with the natural resource damage assessment resulting from the Deepwater Horizon Oil Spill in the Gulf of Mexico and to assess and quantify the economic and loss of use damages suffered by the state of Louisiana as a result of the spill.
Natural Resource Damages Litigation
NRD actions focus on the injury to the environment and the natural resources that belong to the public and are managed and protected in trust by certain federal, state and tribal governmental entities. Building on the public trust doctrine and common law rights traditionally vested in the sovereign, NRD statutes vest certain enumerated trustees with the ability to seek recovery for the public’s loss of natural resources occasioned by a spill or discharge.
By law, the types of natural resources covered and for which trustees are authorized to seek recovery include land, fish, wildlife, biota, air, water, ground water, drinking water supplies and other such sources belonging to, managed by, held in trust by, appertaining to or otherwise controlled by state and federal governments.
NRD statutes and the public trust doctrine vest federal, state and tribal trustees with the ability to recover for the past and future loss of the human uses of such contaminated or impacted resources. For example, an oil spill in a river, bay or gulf can cause substantial impacts upon the uses of such waterways, including navigation and commerce, industry and jobs, commercial and recreational fishing, tourism, regional development and redevelopment, and even long-term regional growth, taxes, revenues and governmental services. Similarly, contamination of a groundwater aquifer that is serving as a regional water supply can impact the public’s use of such a resource. NRD claims deal with this very difficult and expert witness-intensive analysis and quantification, which stand at the intersection of the environment and the economy.
Kelley Drye has uncommon experience in litigating NRD matters. We have been retained by both trustee agencies and corporate clients to litigate, or resolve through ADR or mediation proceedings, these most complex environmental matters. Kelley Drye counsel have represented various trustee agencies in NRD litigation matters, including the state of New Mexico in the Gold King Spill/Animas River Litigation, the state of Louisiana in the Gulf Spill, and the state of New Jersey in the Passaic River matter.
Likewise, the firm is currently representing private-sector clients in significant NRD and litigation matters such as the Portland Harbor Superfund Site and the Clark Fork River Basin Superfund Site in Montana.