Oil Pollution Act (OPA)
Natural Resource Damages Under CERCLA and OPA
Author
William D. Brighton, Danica Anderson Glaser, and Rachel Evans King
Author Bios (long)

William D. Brighton and Danica Anderson Glaser are with the Environment and Natural Resources Division (ENRD) at the U.S. Department of Justice. Rachel Evans King worked in ENRD for 13 years and now is at the U.S. Food and Drug Administration’s Office of the Chief Counsel. Bill graduated from the University of Michigan Law School in 1978. Rachel and Danica graduated from Harvard Law School in 2010.

Date
July 2024
Volume
54
Issue
7
Page
10569
Type
Articles
Summary

Natural resource damages (NRD) under federal law is a statutory cause of action to compensate for injury to natural resources resulting from releases of hazardous substances or oil. Designated officials are authorized under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act (OPA), among others, to act as “trustees” on behalf of the public or tribes. While many states have comparable statutes or recognize public common-law claims, the federal statutes uniquely require trustees to use damages exclusively to restore, replace, or acquire the equivalent of injured resources. NRD fills a gap at some sites where cleanup actions stop short of fully mitigating harm or compensating for the public’s loss of access. The statutory provisions and rules governing NRD claims are complex and have been interpreted in relatively few judicial decisions. This Article covers those decisions and a wide range of issues, including the scope of liability, defenses, how NRD should be measured, and the public’s role in NRD assessment and restoration planning. It also addresses how NRD claims can be resolved by settlement, including partial, “early restoration” settlements that narrow the scope before a full NRD assessment is complete.

H.R. 7363
Update Type
Committee Name
Committee on Transportation and Infrastructure
Sponsor Name
Gibbs
Sponsor Party Affiliation
R-Ohio
Issue
6
Volume
52
Update Issue
10
Update Volume
52
Congress Number
117
Congressional Record Number
168 Cong. Rec. H4126

would amend OPA to clarify the responsibility of landowners who do not participate in the operation of oil facilities.

S. 5081
Update Type
Committee Name
Committee on Environment and Public Works
Sponsor Name
Menendez
Sponsor Party Affiliation
D-N.J.
Issue
2
Volume
51
Update Issue
1
Update Volume
51
Congress Number
116
Congressional Record Number
166 Cong. Rec. S7939

would amend OPA to require oil polluters to pay the full cost of oil spills.

S. 865
Update Type
Committee Name
Committee on Finance
Sponsor Name
Sullivan
Sponsor Party Affiliation
R-Alaska
Issue
5
Volume
49
Update Issue
10
Update Volume
49
Congress Number
116
Congressional Record Number
165 Cong. Rec. S1939

would amend the Oil Pollution Act of 1990 to establish an oil spill response and prevention grant program and provide for advances from the Oil Spill Liability Trust Fund, and amend the Internal Revenue Code of 1986 to extend and modify the application of the Oil Spill Liability Trust Fund financing rate.

S. 3757
Update Type
Committee Name
Committee on Environment and Public Works
Sponsor Name
Menendez
Sponsor Party Affiliation
D-N.J.
Issue
2
Volume
49
Update Issue
36
Update Volume
48
Congress Number
115
Congressional Record Number
164 Cong. Rec. S7586

would amend the Oil Pollution Act of 1990 to require oil polluters to pay the full cost of oil spills.

Gulf Coast Ecosystem Restoration
E.O. 13626
09/10/2012
77 Fed. Reg. 56749 (September 13, 2012)

Executive Order 13626 of September 10, 2012

Gulf Coast Ecosystem Restoration

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 311 of the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. 1321), section 1006 of the Oil Pollution Act of 1990 (33 U.S.C. 2706), and section 301 of title 3, United States Code, it is hereby ordered as follows:

Amendments to Executive Order 12777
E.O. 13638
03/15/2013
78 Fed. Reg. 17589 (March 21, 2013)

Executive Order 13638 of March 15, 2013

Amendments to Executive Order 12777

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Section 4 of Executive Order 12777 of October 18, 1991, as amended (Implementation of Section 311 of the Federal Water Pollution Control Act of October 18, 1972, as Amended, and the Oil Pollution Act of 1990) is further amended by striking section 4 in its entirety and inserting in lieu thereof the following:

S. 1226, Bill Introduced
Update Type
Committee Name
Environment and Public Works
Sponsor Name
Peters
Sponsor Party Affiliation
D-Mich.
Issue
7
Volume
47
Update Issue
16
Update Volume
47
Congress Number
115
Congressional Record Number
163 Cong. Rec. S3146

would amend the Oil Pollution Act of 1990 to equalize liability and financial assurance requirements for onshore pipeline facilities that could discharge oil into the Great Lakes system with such requirements for offshore pipelines, to authorize the Secretary of Transportation to issue an emergency order directing pipeline owners to comply with existing pipeline operating agreements or acquire sufficient resources to appropriately respond to possible oil spill incidents. 

You must be an ELI Member to access the full content.

You are not logged in. To access this content: