Jackson Gilmour & Dobbs, PC has an unusually 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. Jackson Gilmour & Dobbs, PC is one of the only law firms in the country to have been retained by both the governmental trustees and private sector clients to represent them in NRD matters, giving our lawyers a unique and well-informed perspective in these large and exceptionally complicated environmental matters.
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. Similarly, in certain circumstances, private parties may bring contribution claims for NRD.
Claims for NRD are appreciably different from, and in addition to, claims for the costs associated with cleaning up petroleum products and hazardous substances spilled or discharged into the environment. Often times, 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, environment, and the human uses of these natural resources.
For example, when the Exxon tanker Valdez released an estimated 11 million gallons of crude oil into Prince William Sound in 1989, it contaminated more than 11,000 square miles of ocean and over 1,300 miles of Alaskan coastline, resulting in clean up costs of approximately $2 billion. Moreover, the Exxon Valdez spill caused an additional $1 billion in natural resource damages and impacts to the public. Likewise, BP’s oil spill from the Deepwater Horizon offshore rig in the Gulf of Mexico is anticipated to cause natural resource damages that will far eclipse the Valdez.
The Trustees and Claims
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 a trustee.
Additionally, 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 and governmental services. Similarly, contamination of a groundwater aquifer that is serving as a regional water supply can impact the public’s uses of such a resource. NRD claims deal with this very difficult and expert-intensive analysis and quantification of the intersection of the environment and the economy.
NRD Experts and Experience
Given the breadth of the resources and uses that can be impacted by significant discharges of chemicals and petroleum products into a surface water body, NRD claims are oftentimes truly significant and are some of the most complex and costly of environmental claims. Because the lawyers at Jackson Gilmour & Dobbs, PC 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.
Through a formal process known as a Natural Resource Damage Assessment (NRDA), intensive expert 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.
Our attorneys have researched, analyzed and become acutely familiar with the issues and expert 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, Jackson Gilmour & Dobbs, PC regularly guides our clients and their technical, economic, regulatory, and ecological experts at a very high level. Our attorneys have worked as both plaintiff and defendant with experts 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.