Transcript Environmental Protection and Economic Recovery

The Environmental Backdrop
• In 1970s, perception that States not doing
enough to clean up contaminated sites
despite passage of Clean Water Act in 1972
• In 1980, U.S. Congress passed the
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA)
• In addition to providing claims for the
recovery of remediation costs, CERCLA
provides basis for the recovery of natural
resource damages (NRD)
Natural Resource Trustees
• CERCLA permits NRD claims to be brought by
Natural Resource Trustees
• Trustees include:
– Federal Government
•Dept. of Interior/Fish & Wildlife (terrestrial resources)
•Dept. of Commerce/NOAA (marine resources)
– States
– Native American Tribes
• Many resources have overlapping trustees
Did Not See Significant NRD Cases
Until…
Emergence of Significant NRD Cases
• In 1989, Exxon Valdez ran aground in Prince
William Sound, Alaska
• Discharged between 11-31 million gallons of
crude oil
• Impacted over 1,300 miles of shoreline, and
11,000 square miles of ocean
• Exxon spent over $2 Billion in remediation
• Exxon settled NRD for another $1 Billion
• Spill was impetus for Oil Pollution Act in 1990
Remediation versus Restoration
• Remediation
– Primary response
– Risk based
– Look at human health and ecological factors
• Restoration
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Secondary response / Residual to remediation
Focus on natural resources
Look at baseline (pre-discharge condition)
In addition to, not included in, remediation
NRD in Context
• Prince William Sound Remediation –
$2 Billion spent on efforts to:
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Wash rocks and shoreline
Clean oiled animals
Contain oil spill
Siphon oil from water
Other activities to
recover discharged oil
NRD in Context
• Prince William Sound Restoration - $1 Billion to
fund projects including:
– Restore & compensate for impacted species (e.g.,
whales, otters, fish, birds, clams) [Ecological
Services]
– Restore & compensate for impacted industries
(e.g., commercial fishing, tourism) [Economic
Services]
– Restore & compensate for impacted services
(e.g., recreation, hunting, recreational fishing)
[Human Use Services]
– None of the foregoing addressed by remediation
Catastrophic Events versus Legacy
Contamination
• Valdez was not supposed to happen again
• Deepwater Horizon in the Gulf
• Pipeline in Yellowstone River in Montana
• Pipeline in Mayflower, Arkansas
• Catastrophic events, like oil spills, easier to
address from political and legal standpoints
• Generally true for both remediation &
restoration
Catastrophic Events versus Legacy
Contamination
• Legacy sites more difficult
• Determine who are Responsible Parties
– Site history
– Corporate transactions / reorganizations
– Bankruptcies
• Political willpower to pursue those
Responsible Parties
• Fortitude to endure legal & political processes
Catastrophic Events versus Legacy
Sites
• Examples of legacy sites:
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Chemical facilities
Gasoline facilities
Manufacturing facilities
Military sites
Mining sites
Industrialized waterways (e.g., rivers, harbors)
• Legacy sites are no less important than
catastrophic release sites
States’ Responsibility to Pursue
Remediation & Restoration
States are empowered to pursue remediation
and restoration in multiple capacities:
• Via Statute:
– Federal (e.g., CERCLA, OPA, CWA)
– State (30+ States have Environmental statutes)
• As Proprietor – State as owner of lands
• As Private Actor – State as business
• As Sovereign – Common law tradition and
embodied in many State Constitutions
Common Law Tradition as Sovereign
• 49 States derive legal tradition from English
common law
• Basis for Office of the Attorney General –
which was “a necessary adjunct in the
administration of the common law of England
and was transported to America in the early
days of the establishment of government in
the Colonies as part of their English-derived
common law.”
Common Law Tradition as Sovereign
• Parens Patriae – “parent of the nation” – legal
doctrine that recognizes the special role that
a State plays in pursuing its quasi-sovereign
interests in the well-being of its populace.
• “A State’s quasi-sovereign interest is different
and distinct from its sovereign interests in
protecting its borders and its proprietary
interests in owning land and conducting
business.”
Common Law Tradition as Sovereign
• “A State’s quasi-sovereign interests include
the State’s interest in its citizens’ health,
safety and welfare, as well as in a healthful
environment.”
• A State is the “Guardian of the Public and the
Public’s resources.”
• In short, at common law, State has duty to
protect its people and its natural resources.
Common Law Tradition as Sovereign
• Federal and State statutes embody some, but
not all, of the common law tradition.
• While Federal Trustees rely exclusively on
federal law (and its corresponding
limitations), State Trustees have additional
legal resources (state law, common law, and
multiple capacities to bring suit) in their
arsenal.
Why is this Important to State
Attorneys General?
Staggering number of legacy sites, and to lesser
extent, catastrophic event sites, that remain
inadequately addressed by the federal process:
• Wholly unaddressed
• Insufficiently addressed
– Remedy selection
– Restoration projects
– Time frame
Why is this Important to State
Attorneys General?
• Leaves significant void that only the States
(and Tribes, in some instances) can address
• Because States can bring suit in multiple
capacities, have more flexibility in:
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Scope of Remediation
Scope of Restoration
Quantification of Damages
Other remedies
Time frame
Certain legal issues
Trustee Interaction
• Many resources have overlapping
trusteeships
• E.g., a river:
– Feds may have interests in navigation and
migratory birds;
– State may have interests in native fish, other
wildlife and recreational use;
– Tribe may have cultural interests.
Trustee Interaction
• States are not constrained regarding when
they may bring NRD claims as are feds.
• State Trustee may proceed with NRD claim
under State law (statutory or common law)
where federal Trustee is precluded by
CERCLA.
• May cause friction between Trustees where
all do not join in action or agree on result.
Trustee Interaction
• May diminish or even preclude recovery of
NRD by the federal Trustee
• Different courts have taken different
approaches to address this issue:
– In Okla. v. Tyson Foods, 258 F.R.D. 472 (N.D. Okla.
2009), the court dismissed the State’s NRD claims
for failure to join a tribal trustee deemed a
necessary party.
– In Quapaw v. Blue Tee Corp., No. 03-CV-0846, 2010
WL 3368701 (N.D. Okla. Aug. 20, 2010), the court
rejected the same argument because the tribal
trustee limited its claims to resources on tribal
land.
Trustee Interaction
• In Coeur D’Alene Tribe v. ASARCO, Inc., 280 F.
Supp. 2d 1094, 1116 (D. Idaho 2003), the court
held that it must “award damages in the ratio
or percentage of actual management and
control that is exercised by each of the
various co-Trustees” over the resource.
• Two years later, the Court sua sponte reversed
itself holding its “reliance on traditional tort
concepts in allocating trusteeship was
misplaced.”
Trustee Interaction
• Rather, a “co-trustee acting individually or
collectively with the other trustees may go
after the responsible party or parties for the
full amount of damage, less any amount that
has already been paid as a result of a
settlement to another trustee by a
responsible party.” Coeur D’Alene Tribe v.
ASARCO, Inc., 471 F. Supp. 2d 1063, 1068 (D.
Idaho 2005).
Conclusion
• There is a glut of un- or under-addressed
legacy sites throughout the country.
• States are not limited to the CERCLA
paradigm.
• States have significant and unique legal
power to pursue remediation, restoration and
other damages on behalf of their citizens.
• States can accomplish significant results when
other Trustees cannot, or will not, act.