Natural Resource Damages Recovery

In the past year, federal and state government agencies have greatly increased their focus on natural resource damages recovery (NRD). NRD involves assessing and litigating potential multi-million dollar claims for the alleged industrial impact to biological and physical resources.

NRD suits involve state and federal government agencies, a jumble of state and federal statutes, multiple parties, complex scientific and economic analyses, and still uncharted legal waters.

How can companies and their counsel best position themselves to understand and cope with NRD claims on sites for which they are responsible or potentially responsible parties?

Listen as our panel of environmental law specialists examines NRD recovery methods, including who can sue, elements of a claim, opportunities for cooperation, and minimizing NRD liabilities and defense strategies.

The panel included:

Brian D. Israel, Partner, Arnold & Porter, Washington, D.C. He specializes in environmental litigation and counseling. He represents corporations in matters involving contaminated properties, including toxic tort lawsuits and natural resource damages claims. His counseling practice focuses on environmental issues in large corporate transactions, brownfields redevelopment and environmental management systems.

Bradley M. Campbell, Bradley M. Campbell LLC, Trenton, N.J. His practice focuses on energy and environmental matters and related litigation. In 2006, he completed four years of service as Commissioner of the New Jersey Department of Environmental Protection. He created an innovative program to resolve NRD claims that produced record recoveries and permanent protection of more than 6,500 acres of watershed lands through voluntary settlements.

James H. Colopy, Partner, Farella Braun + Martel, San Francisco. He counsels clients on environmental compliance issues and management strategies. He has extensive experience representing private and public entities in all types of environmental litigation. He represents clients in environmental enforcement actions, citizen suit litigation, cost recovery actions, toxic tort cases, product liability actions and administrative proceedings.

John Carlucci, U.S. Department of the Interior, Washington, DC. He represents the Department of the Interior in CERCLA, OPA, and CWA natural resource damage assessment and restoration claims and as lead on natural resource damage legislative affairs. He also works on issues relating to the Department’s responsibilities under the Clean Air Act, the Clean Water Act, NEPA, the Parks Resource Protection Act, and Pesticide laws.

Rachel Jacobson, Director, Impact-Directed Environmental Accounts, National Fish and Wildlife Foundation, Washington, D.C. Before joining the Foundation in February 2008, she served as a senior attorney in the Environmental Enforcement Section of the Environment and Natural Resources Division of the U.S. Dept. of Justice. While at DOJ, she developed an expertise in NRD, and worked on significant NRD cases including Exxon Valdez, Blackbird Mine, Homestake Mine, Chalk Point /Patuxent River, and Coeur d’Alene.

The panel reviewed these and other key questions:

• Which parties have standing to sue for natural resource damages?
• What are the NRD initiatives being pursued by the states and federal agencies?
• What methodologies are different courts following in valuing NRDs?
• What are the best practices for defending NRD claims?

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