Making CERCLA Natural Resource Damage Regulations Work: The Use of the Public Trust Doctrine and Other State Remedies

Cynthia Carlson

Editors' Summary: CERCLA authorizes the federal government and states, as guardians of the public trust, to sue polluters to recover damages for injuries to natural resources caused by releases of hazardous substances. These causes of action are governed by the Department of the Interior's natural resource damage assessment regulations, which have recently been challenged in federal court. Critics assail the regulations as strongly biased toward the undervaluation of damaged resources. The author of this Article notes that the regulations may ultimately have to be revised to address this concern. In the meantime, she argues, public trustees stand a good chance of obtaining fuller recovery for injured natural resources if they make use of available pendent state claims. By supplementing their CERCLA suits with appropriate public trust and public nuisance claims, the author submits, public trustees can widen the available remedies to include injunctions, mitigation, restitution, and other forms of equitable relief.

Cynthia Carlson is a Research Fellow at the Woods Hole Oceanographic Institution; LL.M., University of Virginia School of Law; J.D., Northwestern School of Law of Lewis and Clark College; B.A., Wellesley College. Her research has been supported by the J.N. Pew Jr. Charitable Trusts and the Marine Policy Center of the Woods Hole Oceanographic Institution.

[18 ELR 10299]

The promulgation of the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's)¹ natural resource damage assessment regulations was a long-anticipated event. Due to the strong congressional mandate yet vague legislative language contained in CERCLA's natural resource damage provisions, it was widely believed that the implementing regulations would make this new federal cause of action more understandable and workable. However, the regulations, although comprehensive in scope and designed to be straightforward in application, have proved to be just the opposite. Charged with being flawed in several significant areas, these regulations have been severely criticized, have been subject to legal challenge, and to a large degree have not been utilized in the assessment of damages to natural resources.

The principle of allowing damages for injuries to publicly owned natural resources is well established in the common law and in other federal environmental statutes.² The inclusion of natural resource damage provisions in CERCLA reflects these important common law and federal statutory underpinnings. The initial experience in the development of natural resource damage regulations should not negate the importance of these provisions in the restoration and replacement of injured natural resources.

While the long-term solution to the problems presented by CERCLA's natural resource damage assessment program may be the promulgation of significantly revised regulations, this Article suggests ways in which current claims for natural resource damages may be made more effective. Specifically, this Article focuses on two state legal mechanisms — the public trust doctrine and public nuisance —that can be used to supplement CERCLA natural resource damage claims in order to obtain relief not otherwise available.

This Article first reviews CERCLA's natural resource damage provisions, the current status of the natural resource damage assessment regulations, and the modern status and application of public trust and public nuisance in environmental cases. Similarities and differences between natural resource damage provisions and public trust/public nuisance mechanisms are analyzed. Finally, this Article suggests how CERCLA natural resource [18 ELR 10300] damage claims can be made more effective when supplemented by these well-established and well-understood state mechanisms.

CERCLA's Natural Resource Damage Provisions and Damage Assessment Regulations

CERCLA's Natural Resource Damage Provisions

Natural resource damages are intended to compensate for injuries that may remain after response actions are completed.³ CERCLA recognizes that traditional common law mechanisms alone often do not provide adequate remedies for injuries to natural resources from the releases of hazardous substances. As a result, the statute authorizes federal and state governments to seek damages for the injury, destruction, or loss of publicly owned natural resources resulting from such releases.⁴

CERCLA imposes an affirmative responsibility on federal and state governments to seek and recover damages for injured natural resources. The statute provides that "the President, or authorized representative of any State, shall act on behalf of the public as trustee of such natural resources, to recover for such damages."⁵ CERCLA defines the term "natural resources" quite broadly to include "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States … [or] any State or local government…."⁶ In indicating the compensatory rather than punitive nature of these provisions, the statute directs that "[s]ums recovered … shall be available for use onlyto restore, replace, or acquire the equivalent of such natural resources."⁷

When initially enacted, CERCLA allowed a federal or state trustee to choose between seeking damages against responsible parties or making a claim against the Superfund to compensate for natural resource injuries.⁸ However, the Superfund Amendments and Reauthorization Act of 1986 (SARA) changed this, effectively prohibiting the use of Superfund monies for such claims.⁹

Natural Resource Damage Assessment Regulations

To implement these statutory provisions, CERCLA provides for the promulgation of regulations concerning the assessment of damages to natural resources not only from the release of hazardous substances but also from the discharge of oil as controlled by § 311 of the Federal Water Pollution Control Act (FWPCA).¹⁰ The use of the regulations is not mandatory. However, a governmental trustee must conduct natural resource damage assessments in a manner consistent with the regulations if such assessments are to be accorded "the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding."¹¹

CERCLA requires that regulations implementing the natural resource damage provisions establish two types of damage assessment procedures.¹² Specifically, these are:

(A) standard procedures for simplified assessments requiring minimal field observation … and (B) alternate protocols for conducting assessments in individual cases to determine the type and extent of short-term and long-term injury, destruction, or loss. Such regulations shall identify the best available procedures to determine such damages, including both indirect and direct injury, destruction, or loss and shall take into consideration factors including, but not limited to, replacement value, use value, and ability of the ecosystem or resource to recover.¹³

Charged with the monumental task of developing the regulations, the United States Department of the Interior (DOI), after much controversy and delay, has promulgated regulations for both types of procedures.

Briefly, the Type A procedures, or simplified procedures for the assessment of minor releases or oil spills, initially have been developed for the assessment of damages to wildlife [18 ELR 10301] and to recreational areas from minor releases or spills in coastal and marine areas.¹⁴ These procedures utilize a computer model to simulate the physical fate of oil or hazardous substances in a coastal area, to quantify resultant biological impacts, and to determine associated economic damages.¹⁵

The Type B procedures, or alternate protocols to be applied on a case-by-case basis for more complex releases or spills, have been developed to be broad in scope and flexible in nature due to the wide variety of natural resources and potential resource injuries to be addressed. The Type B procedures are based on the same three steps as the Type A procedures (namely, injury determination, injury quantification, and damage determination) and are intended to provide guidelines for the selection of appropriate evaluation methodologies under each step.¹⁶

The long-awaited regulations make significant advances in the assessment of damages to natural resources. In blending together legal, scientific, and economic principles in the determination of such damages, CERCLA's natural resource damage assessment regulations go far beyond other federal statutory resource damage provisions. As some observers have stated, "[T]he rules provide a logical step-by-step procedure for damage assessments, with opportunity for participation by all interested parties, and they attempt to coordinate damage assessments with the Remedial Investigation and Feasibility Study process."¹⁷

However, despite such advances, the regulations are subject to controversy. Also, in spite of the "carrot" provided by the rebuttable presumption provision, they also have not yet been put to use in the assessment of CERCLA natural resource damages. The main source of controversy appears to be with the regulations' underlying philosophy and approach. Specifically, the manner in which the regulations combine economic methodologies with legal principles and common law damage rules tends to complicate their application and use and reduce their effectiveness.

For example, one major problem with the regulations is that the provisions for identifying public natural resources, for determining injury, and for measuring damages are narrower in the regulations than in CERCLA.¹⁸ More specifically, despite CERCLA's broad definition of public natural resources, the regulations limit such resources to those that are "committed" to current use. Uncommitted public resources that may possess future potential uses (also known as "option" or "existence" values) thus would be left without a remedy if injured.¹⁹ Compared to the broad congressional intent expressed in CERCLA to remedy the injury, destruction, or loss of public natural resources, the limited definition of injury provided in the regulations does not go as far.²⁰ To quote one observation, in determining injury in accordance with the regulations, "the injury to the service provided to … the public by the resource may be different than, and continue long after, the physical, chemical, or biological 'injury' has abated."²¹ And, even though CERCLA provides for a full range of valuation methods to be utilized in the measurement of damages to natural resources, the regulations impose a more limited, hierarchical set of procedures that tend to favor market valuation methods over nonmarket methods.²²

Another major problem with the regulations concerns the way in which their damage measures may be applied. Even though damage measures under both CERCLA and the regulations are based on well-accepted common law damage rules (namely, that damages are the lesser of restoration or replacement costs, or the diminution-in-use values), one commentator has noted that "there is an overwhelming tendency to measure the losses of open-access natural resources in terms of their replacement or restoration costs," to the exclusion of diminution-in-use values.²³ In the context of measuring damages to nonmarket/natural resources, the terms "cost" and "value" are not interchangeable (as they are in the market goods context), with cost actually understating resource value.²⁴ Since diminution-in-use values may provide a more appropriate measure of damages, such an emphasis on restoration or replacement costs may result in a bias toward the under-valuation of injured natural resources.²⁵ Further, as [18 ELR 10302] CERCLA and the regulations limit recovery to monetary damages, any undervaluation of damages would preclude a full recovery for injuries to natural resources.

The regulations are also currently subject to legal challenge.²⁶ In suits brought by states and environmental groups, the regulations are alleged to be biased, favoring certain market valuation methods over appropriate nonmarket methods. The result, plaintiffs argue is that natural resources are undervalued, low levels of damages are assessed, and injuries remain uncompensated.²⁷

The Public Trust Doctrine and Public Nuisance

Public Trust

The doctrine "recognizes that some types of natural resources are held in trust by government for the benefit of the public."²⁸ In accordance with this trust responsibility, government (meaning state government) has an affirmative duty to manage trust resources in a manner that is consistent with the trust. Further, government cannot alienate trust resources or their uses or take any action that may impair the public's rights in such resources.²⁹

Historically, the types of natural resources subject to the trust have been limited to three main areas: submerged lands (and the waters over such lands), the foreshore, and other navigable waters.³⁰ The types of uses for which these resources are held in trust likewise have been limited to include fishing, navigation, and commerce.³¹

Despite these historical limitations, resource areas subject to the trust as well as trust purposes have been significantly expanded by state statutes and by court decisions. The public trust doctrine in some states now reaches to nonnavigable waters,³² state parks,³³ and air and other natural resources.³⁴ Expanded trust purposes or uses in some states now include the protection of wildlife and ecological values,³⁵ the protection of wetlands and the prevention of pollution,³⁶ water conservation,³⁷ the protection of reserved water rights and instream flows,³⁸ and the protection of public access rights to the foreshore for recreational purposes.³⁹

The public trust doctrine has been used more and more frequently by the states as well as recognized more and more frequently by the courts as a mechanism for the protection of natural resources. A person seeking to invoke the doctrine must show that the public trust has been violated; in other words, there must have been an "unreasonable interference with the use and enjoyment of trust rights."⁴⁰

Public Nuisance

Defined broadly as "an unreasonable interference with the rights common to the general public,"⁴¹ public nuisance historically has referred to "a substantial interference with the public health, the public safety, the public peace, the public comfort or the public convenience…."⁴² One [18 ELR 10303] commentator defines public nuisance as an "invasion of public commons or interest,"⁴³ noting that all states have "a sizeable list of statutes branding as public nuisance a wide range of activities."⁴⁴ A public nuisance is an offense against the state that the state has broad authority to remedy through the exercise of its police power. Focusing on the condition of property, not the conduct that created it, a public nuisance action is an equitable action that is governed by the standard of strict liability.⁴⁵

As a result of its breadth and controlling standard of liability, public nuisance can be a very useful remedy, particularly in environmental cases. As one writer has noted, "Case law that has developed over the past ten years or so reveals a trend in many jurisdictions to allow for the use of public nuisance as a tool of state environmental enforcement."⁴⁶ Specifically, public nuisance has allowed the state, as "guardian of the environment," to "act in the public interest and place liability for costs of abatement upon the party responsible for the nuisance."⁴⁷ For example, a court has held that toxic substances leaking from a dumpsite into a surrounding marsh threaten wildlife and the public and must be abated as a public nuisance.⁴⁸

The Overlap Between the Public Trust Doctrine and Public Nuisance

There is a large degree of overlap between the public trust doctrine and public nuisance. For example, the test of the reasonableness of a trust use is nearly identical to the test for whether a public nuisance exists. Public nuisance has been referred to as "the inland version of the public trust doctrine," since the public trust doctrine has been applied in the public nuisance context, public nuisance has been applied in the public trust context, and both have been applied together.⁴⁹ As a result of this confusion in application, some claim that the public trust doctrine has been used inappropriately in some instances, particularly when it has been used as a substitute for public nuisance.⁵⁰

One commentator views the public trust doctrine primarily as a procedural device, referring to it as the state's version of the federal court's "hard look" doctrine.⁵¹ The "hard look" in the public trust context implies a balancing of interests (a "dominant theme" of nuisance law) as to whether the trustee acted reasonably in avoiding or minimizing harm to the public interest in trust resources.⁵² Although seemingly procedural and outcome-neutral, it is contended that the "hard look" doctrine in such a context actually takes on a substantive and outcome-determinative role,⁵³ and therefore becomes more like public nuisance.

Indeed, there is more room for comment on this overlap. The public nuisance, while potentially broader in application than the public trust doctrine, may be a more appropriate claim to pursue in some cases. On the other hand, the public trust doctrine may be appropriate to raise in cases involving traditional trust resources and their uses. It is clear, though, that both the public trust doctrine and public nuisance can play substantial roles in environmental matters, particularly in matters concerning injuries to natural resources.

How CERCLA's Natural Resource Damage Provisions Relate to the Public Trust Doctrine and Public Nuisance

CERCLA's natural resource damage provisions overlap with the public trust doctrine and public nuisance in both theory and practice. The overlap can be traced to the original Senate CERCLA bill, which stated that the purpose of natural resource damage liability was "to preserve the public trust in the Nation's natural resources…."⁵⁴ Several writers have observed that "CERCLA extends the public trusteeship obligation beyond protection of soils, navigable waters, parks, and wild animals to all [public] natural resources within the state."⁵⁵

While there is little case law on the issue of how CERCLA natural resource damages and the public trust doctrine overlap in practice, some patterns are emerging. Four recent decisions illustrate how CERCLA, including its natural resource damage provisions, does not preempt state law and may in fact be supplemented by it.

In Attorney General v. Thomas Solvent Co., the state of Michigan brought an action for injunctive and monetary relief under both CERCLA and state common law public nuisance for the toxic contamination of well water.⁵⁶ In ruling on the interrelationship between CERCLA and state law, the court held that "[a] plain reading of § 9614 shows that, instead of preempting state law, that statute provides that states may supplement any liability or requirements [18 ELR 10304] that may be imposed under CERCLA."⁵⁷ The court, in pointing out that one of the primary purposes of CERCLA was to fill the gaps left by other federal environmental statutes, also stated that "[i]t is clear that CERCLA was intended only to supplement hazardous waste programs and not to preempt state programs."⁵⁸

In Allied Towing Corp. v. Great Eastern Petroleum Corp., the plaintiff raised federal claims under CERCLA and the Resource Conservation and Recovery Act (RCRA)⁵⁹ as well as under state common law for damages arising from the transportation of hazardous substances.⁶⁰ The court held that the "plain language" of the savings clauses found in CERCLA and RCRA "indicates a Congressional intent to leave untrammeled the right of an individual to invoke principles of statutory or common law in damage actions pendent to CERCLA or RCRA claims."⁶¹ The court noted an individual's ability, subject to the court's discretion, to bring claims pendent to a RCRA claim, and stated that "nothing in the legislative history of CERCLA or in the pertinent case law requires the court to dismiss [pendent state law claims]."⁶²

In New York v. Shore Realty Corp., the state brought suit under CERCLA for injunctive relief and response costs for the cleanup of a hazardous waste site.⁶³ Pendent state claims based on common law public nuisance were also raised. The Second Circuit held that while injunctive relief under CERCLA was not available to the state, the district court properly exercised pendent jurisdiction to grant injunctive relief based on New York public nuisance law.⁶⁴ Noting the authority of federal courts to hear state law claims under certain circumstances, the court stated that "[t]he public nuisance claim for abatement and the CERCLA claims clearly 'derive from a common nucleus of operative fact' and the State 'would ordinarily be expected to try them all in one judicial proceeding.'"⁶⁵ The court also stated that "it is irrelevant that the scope of relief under state law differs from that under federal law."⁶⁶ Further, the court suggested that the state could have pursued restitution and additional nuisance claims as alternate grounds for pendent jurisdiction.⁶⁷

And last, in New York v. General Electric Co., the state brought federal claims under CERCLA for injunctive, declaratory, and monetary relief for response costs and for damages to natural resources from the unlawful disposal of hazardous wastes.⁶⁸ State claims based on common law nuisance were also raised. While the defendants argued that only monetary relief and not equitable relief was authorized under CERCLA, the court held otherwise.

First, even assuming that injunctive relief is impermissible under CERCLA, [defendant] has ignored the fact that plaintiff has pleaded additional state law claims in the nature of nuisance for which injunctive relief clearly is appropriate….

Second, the Court is not convinced that notwithstanding the absence of any express grant of an equitable remedy in CERCLA, the Court is without power to entertain a claim for and order such relief under its inherent equitable powers.⁶⁹

Thus, CERCLA claims have been successfully combined with pendent state claims based on state statutes or common law doctrines such as public trust or public nuisance. Allowing such pendent claims is clearly within the discretion of the court. Moreover, the court may fashion appropriate relief, other than simple damage awards, under its inherent equitable powers.

Trends in the settlements of CERCLA natural resource damage claims also reflect the combination of CERCLA's natural resource damage provisions with equitable remedies stemming from state common law doctrines. For example, in a settlement reached in Colorado v. Union Carbide Corp., the parties agreed to a remedial action plan in addition to resolving natural resource damage claims.⁷⁰ Specifically, the defendants agreed to pay damages as well as to give senior consumptive water rights and 200 acres of land to the state. The 200 acres would then be used by the state as a nature preserve. And, in United States v. Alexander, in addition to the cleanup of the waste site at issue, the settlement agreement provided "that the companies would purchase land to be turned into wetlands to compensate for natural resource damages in the area."⁷¹

[18 ELR 10305]

Fundamental Differences Among CERCLA's Natural Resource Damage Provisions, the Public Trust Doctrine, and Public Nuisance

Despite the similarities in theory and in practice noted above, there are fundamental differences surrounding CERCLA natural resource damage provisions, the public trust doctrine, and public nuisance. Some of these differences are indicated in the Table.

Scope of Protected Resources

The definition of natural resources under CERCLA is quite broad, including "nearly anything not man-made 'belonging to, managed by, held in trust by, appertaining [to], or otherwise controlled by' federal, state, [or] local … governments."⁷² Thus, all natural resources, except those held in private ownership, seemingly would come under the scope of CERCLA, although the actual scope has been narrowed by the regulations.⁷³ Although the public trust doctrine has developed differently in each state, the resource areas subject to the trust generally tend to be limited to traditional trust areas plus selected "other" areas.⁷⁴ The scope of protected resources under the public trust doctrine is therefore narrower than that under CERCLA. And, as a result of its basis in the police power, the scope of protected resources under the public nuisance is quite broad, extending to all state and local public resources; however, public nuisance does not reach to federal resources in states.

Actionable Injury

CERCLA's natural resource damage provisions require that there be injury to, destruction of, or loss of public natural resources caused by the release of hazardous substances or the spill of oil.⁷⁵ CERCLA further requires that there be actual injury to, destruction of, or loss of such resources from an actual release, rather than a mere threat of a release as will suffice for other types of CERCLA actions.⁷⁶ In fact, specific definitions of what constitutes an injury to various categories of natural resources have been developed.⁷⁷ However, injuries to natural resources are not actionable under CERCLA if they

were specifically identified as an irreversible and irretrievable commitment of natural resources in an environmental impact statement, or other comparable environmental analysis, and the decision to grant a permit or license authorizes such commitment of natural resources, and the facility or project was otherwise operating with the terms of its permit or license.⁷⁸

The tests for actionable injuries under the public trust doctrine and under public nuisance are quite similar to one another, but significantly broader than that provided in CERCLA. While the public trust doctrine requires an impairment or interference with trust rights, public nuisance requires an interference with the rights common to the public. It is unclear whether an impairment of or interference with public trust rights requires an actual injury, or merely the threat thereof.⁷⁹ Either a threatened or actual interference with rights common to the public is actionable under public nuisance.⁸⁰

*4*Differences Among CERCLA's Natural Resource

*4*Damage (NRD) Provisions, the Public Trust

*4*Doctrine, and Public Nuisance

CERCLA PUBLIC PUBLIC

ITEM NRD * TRUST NUISANCE

scope of broad limited broad

protected

resources

actionable actual injury impairment of interference

injury to, destruc- or interference with rights

tion, or loss of with public of the

public natural resources and public or

resources from uses protected with a public

release/spill by trust commons

relief $ damages or injunction; injunction;

available settlement $ damages; other

for in-kind other equitable equitable

relief relief relief

potential public public public agency

plaintiffs trustees trustees (state or

(federal, state, (state or local) local)

or local) or private

persons

potential public or public or private

defendants private persons private persons persons

standard of strict none strict

liability

Relief Available

Relief available under CERCLA for injuries to natural resources is primarily limited to monetary damages.⁸¹ Even though injunctive relief is available in CERCLA abatement actions by the federal government where there is an imminent and substantial endangerment, no injunctive relief is authorized in the case of natural resource damage actions.⁸² However, in the settlement of natural resource damage claims under CERCLA, additional relief may be available. For example, in a covenant not to sue for damages to natural resources, a trustee may require the responsible parties [18 ELR 10306] "to undertake appropriate actions necessary to protect and restore the natural resources damaged…."⁸³

A wider range of relief is generally available under the common law doctrines of public trust and public nuisance than under CERCLA. Injunctive relief is the primary type of relief available under the public trust doctrine. Typically, the doctrine is invoked in order to enjoin governmental action, such as to prevent the alienation of certain lands subject to the trust or to protect trust uses from encroachment.⁸⁴ The doctrine can also be used to obtain monetary damages for injuries to trust resources.⁸⁵ And in order to protect and promote public trust interests, courts have the flexibility to fashion equitable remedies as needed, including requirements such as mitigation.⁸⁶

Injunctive relief is also the primary type of relief available under public nuisance. As with the public trust doctrine, public nuisance may be invoked to enjoin prohibited activities.⁸⁷ The relief available under public nuisance can also go beyond equitable relief.⁸⁸ In some cases of public nuisance, courts have extended injunctive relief to include requirements such as monitoring.⁸⁹ Other equitable remedies, such as restitution costs, may be specifically provided by state statute as a public nuisance remedy.⁹⁰

Potential Plaintiffs

Under CERCLA, only public trustees (that is, federal, state, or local governmental representatives) may bring an action for damages to natural resources. There is no private cause of action.⁹¹ Under the public trust doctrine, public trustees or private persons may bring actions to protect trust resources or enforce trust rights.⁹² With respect to public nuisance, "the State has standing to bring suit to abate such a nuisance 'in its role as guardian of the environment.'"⁹³

Potential Defendants

Defendants in a CERCLA natural resource damage action may be either public or private persons. The application of CERCLA to the federal government is explicit: "Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government shall be subject to, and comply with, this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under this section."⁹⁴ While CERCLA is silent in terms of its application to state and local governmental entities, such entities seemingly would be subject to CERCLA in the same manner as federal governmental entities.

Defendants in public trust actions may be either public or private persons. Defendants in a public nuisance action are limited to private persons.⁹⁵

Standard of Liability

The standard of liability provided by CERCLA is that of strict liability. Even though not expressly provided in the statute, liability under CERCLA is defined to be the same as that provided by § 311 of the FWPCA, which the courts have held to be strict liability.⁹⁶ Since a claim based on the public trust doctrine is resolved through the balancing of competing interests, there is no real standard of liability to be applied in these cases.⁹⁷ The standard of liability to be applied in a public nuisance action is that of strict liability.⁹⁸

Making CERCLA's Natural Resource Damage Provisions Work

The public trust doctrine and public nuisance offer a means by which public trustees can seek adequate relief for injury to natural resources, despite the limitations of the DOI's regulations. The regulations, which adopt valuation methodologies in a manner that may result in monetary awards insufficient to cover the restoration or replacement of the injured resource, are not mandatory.⁹⁹ Therefore, public trustees could conceivably seek expanded monetary awards by suing under CERCLA alone. However, supplementing a CERCLA natural resource damage claim with pendent state common law or statutory causes of action based on public trust or public nuisance theories will significantly bolster a trustee's effort to obtain fuller monetary damages, and may yield broad equitable relief such as an injunction, abatement, or restitution.

To implement this trial strategy, the public trustee must first determine whether CERCLA's natural resource damage provisions are applicable. If so, the trustee must then look to the applicable state law to determine whether either the public trust doctrine or public nuisance (or both) is also applicable. If a state claim is available, the trustee should invoke the doctrine of pendent jurisdiction to augment the natural resource damage action by seeking whatever kind of additional relief is likely obtainable under the state doctrine and most adequate to address the injury in question.

[18 ELR 10307]

For example, in the case of an oil spill injuring coastal area resources, the injury would qualify as a CERCLA natural resource injury, with the resource falling within the scope of both CERCLA and the public trust doctrine in its traditional sense. Monetary relief to compensate for the injured resources would be available under CERCLA and the public trust. In addition, the public trust would help to return the area to its pre-spill condition by allowing for the complete restoration of the resources. If complete restoration were not possible, the public trust would provide for an appropriate remedy, such as mitigation.

In the case of a release of a hazardous substance injuring the bed of a nonnavigable river, again the injury would qualify as a CERCLA natural resource injury. The resource at issue would fall within the scope of CERCLA and of public nuisance and, depending upon applicable state law, perhaps the public trust doctrine. Monetary relief again would be available under CERCLA (and the public trust if applicable). Beyond monetary relief, however, public nuisance would provide further relief in the form of a flexible equitable remedy, such as restitution or abatement.

Conclusion

The letter of the natural resource damage regulations is not completely adequate to ensure the restoration or replacement of injured natural resources. However, the spirit of CERCLA's natural resource damage provisions can be realized by combining CERCLA natural resource damage claims with pendent state claims based on the public trust doctrine or public nuisance. In this way, the outcome of natural resource damage claims may be more appropriate and the relief provided more complete.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. 43999-44081.

2. See, e.g., the Outer Continental Shelf Lands Act, 43 U.S.C. § 1813(a)(2)(C)-(D), (b)(3); the Deepwater Port Act, 33 U.S.C. § 1517(i)(3); the Trans-Alaska Pipeline Authorization Act, 42 U.S.C. § 1653(a)(1), (c)(1); and the Federal Water Pollution Control Act, 33 U.S.C. § 1321(f)(5), ELR STAT. FWPCA 041.

3. CERCLA's provisions establishing liability for damages for the restoration or replacement of injured natural resources have been the subject of frequent comment in the literature. See, e.g., Breen, CERCLA's Natural Resource Damage Provisions: What Do We Know So Far?, 14 ELR 10304 (Aug. 1984); Newlon, Defining the Appropriate Scope of Superfund Natural Resource Damage Claims: How Great an Expansion of Liability?, 5 VA. J. NAT. RESOURCES L. 197 (1985); Maraziti, Local Governments: Opportunities to Recover for Natural Resource Damages, 17 ELR 10036 (Feb. 1987); and Habicht, The Expanding Role of Natural Resource Damage Claims Under Superfund, 7 VA. J. NAT. RESOURCES L. 1 (1987).

4. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. 44026.

5. Id.

6. CERCLA § 101(16), 42 U.S.C. § 9601(16), ELR STAT. 44006.

7. CERCLA § 107(f)(1), 42 U.S.C. § 9607(f)(1), ELR STAT. 44026. This section continues, however, with the following: "The measure of damages … shall not be limited by the sums which can be used to restore or replace such resources." Id. The section prohibits double recovery as well. Id. The statute of limitations period within which natural resources claims must be brought is also provided at § 113(g)(1), 42 U.S.C. § 9613(g)(1), ELR STAT. 44041-42.

8. See CERCLA § 111(c)(2), as enacted by Pub. L. 96-510, tit. I, § 111, 94 Stat. 2788 (1980).

9. The statute now provides, "No natural resource claim may be paid from the Fund unless the President determines that the claimant has exhausted all administrative and judicial remedies to recover the amount of such claim from persons who may be liable." CERCLA § 111(c)(1)(A), 42 U.S.C. § 9611(A), ELR STAT. 44035. Even if the claimant were to follow all necessary procedures in asserting a natural resource damage claim against the Fund, recovery would probably be impossible because SARA § 517, Pub. L. 99-499, 100 Stat. 1613 (1986), eliminated natural resource damage claims from Superfund expenditure purposes. For more on SARA and its amendments to CERCLA's natural resource damage provisions, see Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10395-96 (Dec. 1986).

10. CERCLA § 301(c)(1), 42 U.S.C. § 9611(c), ELR STAT. 44067; FWPCA § 311(f)(4), (5), 33 U.S.C. § 1321(f)(4), (5), ELR STAT. FWPCA 041. Section 301(c)(1) of CERCLA initially required these regulations to be promulgated within two years after its enactment. In recognition of the consent order entered in New Jersey v. Ruckelshaus, No. 84-1668 (D.N.J.), which established new deadlines for the promulgation of these regulations, SARA amended CERCLA § 301(c)(1) to require that the regulations be promulgated within six months of SARA's 1986 enactment. See Pub. L. 99-499, § 107(d)(3), 100 Stat. 1630 (1986).

11. CERCLA § 107(f)(2)(C), 42 U.S.C. § 9607(f)(2)(C), ELR STAT. 44026. For more on CERCLA's rebuttable presumption provision, see Meneffee, Recovery for Natural Resource Damages Under Superfund: The Role of the Rebuttable Presumption, 12 ELR 15057 (1982). Additional natural resource damage provisions include the notification of appropriate federal and state trustees "of potential damages to natural resources resulting from releases under investigation," CERCLA § 104(b)(2), 42 U.S.C. § 9604(b)(2), ELR STAT. 44012; the designation of federal or state trustees, CERCLA § 107(f)(2)(A), (B), 42 U.S.C. § 9607(f)(2)(A), (B), ELR STAT. 44026; and the notification of trustees of settlement negotiations (which may include covenants not to sue for natural resource damages), CERCLA § 122(j)(1), (2), 42 U.S.C. § 9622(j)(1), (2), ELR STAT. 44063.

12. CERCLA § 301(c)(2), 42 U.S.C. § 9651(c)(2), ELR STAT. 44067-68.

13. Id.

14. The DOI plans to expand the Type A regulations. See 53 Fed. Reg. 20143 (June 2, 1988); 52 Fed. Reg. 9042 (Mar. 20, 1987).

15. The Type A regulations became effective on April 20, 1987, and are codified at 43 C.F.R. Part 11 (1987) (see particularly 43 C.F.R. §§ 11.40-11.41). For more on the development of the Type A procedures, see Preamble Discussion, 52 Fed. Reg. 9042 (Mar. 20, 1987). For more on the Type A model, see Grigalunas et al., The Natural Resource Damage Assessment Model for Coastal and Marine Environments, PROC. OF THE 1987 OIL SPILL CONF. 541 (1987).

16. The Type B regulations became effective on September 2, 1986, and are codified at 43 C.F.R. Part 11 (1987) (see particularly 43 C.F.R. §§ 11.60-11.84). For more on the development of the Type B procedures, see Preamble Discussion, 51 Fed. Reg. 27674 (Aug. 1, 1986). Proposed amendments to the natural resource damage assessment regulations under SARA for both Type A and Type B procedures are still pending. See 52 Fed. Reg. 12886 (Apr. 17, 1987); 52 Fed. Reg. 19896 (May 28, 1987).

17. Kenison, Buchholz, & Mulligan, State Actions for Natural Resource Damages, 17 ELR 10434, 10437 (Nov. 1987).

18. Although the problems associated with the DOI regulations include their treatment of the scope of protected resources and their definition of actionable injury, the focus of this Article is on the limited recovery obtainable under the regulations. Since monetary awards under the regulations tend to be too small, common law causes of action that offer a wider range of remedies, including injunctive relief, can help public trustees obtain adequate compensation for injuries to natural resources.

19. Kenison, Buchholz, & Mulligan, supra note 17, at 10437.

20. The regulations define "injury" as "a measurable adverse change in the chemical or physical quality or viability of a natural resource resulting either directly or indirectly from exposure to a discharge of oil or release of a hazardous substance…." 43 C.F.R. § 11.14(v) (1987). The regulations also provide more specific definition of injury applicable to specific resources. See id. at § 11.62.

21. Kenison, Buchholz, & Mulligan supra note 17, at 10437 (emphasis in original).

22. See Johnson, Natural Resource Damage Assessments Under CERCLA: Flawed Regulations May Limit Recovery, 12 CHEM. WASTE LIT. REP. 47, 48 (1987).

23. Yang, Valuing Natural Resource Damages: Economics for CERCLA Lawyers, 14 ELR 10311, 10314 (Aug. 1984).

24. Id.

25. In commenting on this "undervaluation" theory, Dower and Scodari state:

[W]hether or not the regulations contain an inherent bias towards undercompensation is debatable. Moreover, if one accepts this preliminary conclusion, the question then arises as to whether the perceived bias in the regulations results from an inherent bias towards undercompensation in CERCLA itself or results primarily from a conservative interpretation of the CERCLA natural resource damage provisions by DOI.

Dower and Scodari, Compensation for Natural Resource Injury: An Emerging Federal Framework, 4 MARINE RESOURCE ECON. 155, 172 (1987). For more on the economic valuation issues, see YANG, DOWER, & MENEFFEE, THE USE OF ECONOMIC ANALYSIS IN VALUING NATURAL RESOURCE DAMAGES (1984).

26. The regulations are challenged in Colorado v. U.S. Department of the Interior, Nos. 87-1265, -1266 (D.C. Cir.) and Ohio v. U.S. Department of the Interior, No. 86-1529 et al. (D.C. Cir.).

27. See also Natural Resource Damage Assessments Under Superfund and the CWA, 29 OCEAN L. MEMO 8 (Feb. 15, 1987).

28. RODGERS, HANDBOOK ON ENVIRONMENTAL LAW 171 (1977 & Supp. 1984). For more discussion of the status and application of the public trust doctrine, see Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970) [hereinafter Sax 1970]; Sax, Liberating the Public Trust from its Historical Shackles, 14 U.C. DAVIS L. REV. 185 (1980); Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C. DAVIS L. REV. 195 (1980); Wilkinson, The Public Trust Doctrine in Public Land Law, 14 U.C. DAVIS L. REV. 269 (1980); Johnson, Public Trust Protection for Stream Flows and Lake Levels, 14 U.C. DAVIS L. REV. 233 (1980); Dunning, The Significance of California's Public Trust Easement for California's Water Rights Law, 14 U.C. DAVIS L. REV. 233 (1980); Felling, Pursuit of the Public Trust: Beach Access in New Jersey from Neptune v. Avon to Matthews v. BHIA, 10 COLUM. J. ENVT'L L. 35 (1982); and Morrison and Dollahite, The Public Trust Doctrine: Insuring the Needs of Texas Bays and Estuaries, 37 BAYLOR L. REV. 365 (1985).

29. For a detailed explanation of public trust obligations, see Sax 1970, supra note 28, at 485.

30. Rodgers has provided a more complete description of these areas subject to the trust, namely, "submerged lands, the foreshore (that is, the land between the ordinary high water and low water marks), which can be described as the bed of the sea, and other navigable waters, which can be understood to mean fresh waters of any consequence." RODGERS, supra note 28, at 62 (Supp. 1984).

31. See Sax 1970, supra note 28, at 475.

32. See National Audubon Society v. Superior Court of Alpine County, 33 Cal. 3d 419, 189 Cal. Rptr. 346, 658 P.2d 709, 13 ELR 20272 (1983), cert. denied, 104 S. Ct. 413, 78 L. Ed. 2d 351 (1983).

33. See Gould v. Greylock Reservation Commission, 350 Mass. 410, 215 N.E.2d 114 (1966).

34. See, e.g., MICH. CONST. 1963, art. 4, § 52. For more on Michigan's statutory expansion of the public trust doctrine, see Antone, The Public Trust Doctrine and Related Michigan Environmental Legislation, 1987 MICH. BAR J. 894 (1987). For additional resource areas over which the extension of the public trust doctrine has been proposed, see, e.g., Comment, Sand Rights: Using California's Public Trust Doctrine to Protect Against Coastal Erosion, 24 SAN DIEGO L. REV. 727 (1987).

35. Marks v. Whitney, 6 Cal. 3d 251, 98 Cal. Rptr. 790, 491 P.2d 374, 2 ELR 20049 (1971).

36. See National Audubon Society v. Superior Court of Alpine County, 33 Cal. 3d 419, 189 Cal. Rptr. 346, 658 P.2d 709, 13 ELR 20272 (1983), cert. denied 104 S. Ct. 413, 78 L. Ed. 2d 351 (1983). For more on this decision, see Dunning, The Public Trust Doctrine and Western Water Law: Discord or Harmony?, 30 ROCKY MTN. MIN. L. INST. 17-1 (1985).

37. See United Plainsmen Ass'n v. North Dakota State Water Conservation Comm'n, 247 N.W.2d 457, 7 ELR 20117 (N.D. 1976).

38. See Note, The Public Trust Doctrine as a Source of State Reserved Water Rights, 63 DEN. L. REV. 585 (1986), and Ausness, Water Rights, the Public Trust Doctrine, and the Protection of Instream Uses, 1986 U. ILL. L. REV. 407 (1986).

39. See Neptune City v. Avon-by-the Sea, 61 N.J. 296, 204 A.2d 47, 2 ELR 20519 (1972). See also Felling, supra note 28, and Oehme, Judicial Expansion of the Public Trust Doctrine: Creating a Right of Public Access to Florida's Beaches, 3 J. LAND USE & ENVT'L L. 75 (1987). For additional resource uses over which the extension of the public trust doctrine has been proposed, see Kagan, Private Rights and the Public Trust: Opposing Lakeshore Funnel Development, 15 B.C. ENVT'L AFF. L. REV. 105 (1987).

40. RODGERS, supra note 28, at 175 (1977).

41. RESTATEMENT (SECOND) OF TORTS § 821B (Tent. Draft No. 17, 1974).

42. Id. Until recently, the concept of public nuisance has not been subject to as much attention in the literature as the public trust doctrine. See supra note 28. However, Halper provides a good review of the history of public nuisance and its current application as a state common law remedy in environmental cases. See Halper, Public Nuisance and Public Plaintiffs: Rediscovering the Common Law (Part I), 16 ELR 10292 (Oct. 1986) [hereinafter Halper I]. For an earlier analysis, see Bryson & Macbeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 ECOL. L.Q. 241 (1972).

43. RODGERS, supra note 28, at 7 (Supp. 1984).

44. Id. at 104 (1977).

45. Halper states, "Because the sovereign's suit against a nuisance is not a tort action, but an exercise of the police power, it is governed by strict liability." Halper I, supra note 42, at 10292. Private nuisance, on the other hand, is a tort action, that focuses on the conduct that created a certain condition. For more on the differences between public and private nuisance, see id. at 10295.

46. Id. at 10293. For example, it is noted that "[t]he release or threat of release of hazardous wastes into the environment unreasonably infringes upon public rights and has been held to be a public nuisance as a matter of law." Id.

47. Id.

48. Wood v. Picillo, 443 A.2d 1244, 12 ELR 21000 (R.I. 1982).

49. RODGERS, supra note 28, at 173-74 (1977).

50. For example, Huffman contends that the public trust doctrine has been significantly and conveniently expanded in scope as needs may require. Huffman, Trusting the Public Interest to Judges: A Comment on the Public Trust Writings of Professors Sax, Wilkinson, Dunning, and Johnson, 63 DENV. L. REV. 565 (1986). It should be noted that the expansion of uses subject to the public trust appears to be contemplated by the doctrine, as there is some evidence that trust uses were meant to be flexible and to change as needs changed. However, resource areas subject to the public trust do not seem to be as flexible. See, e.g., Stevens, supra note 28, at 221-23.

51. RODGERS, supra note 28, at 177 (1977). Rodgers also notes that the "[p]ublic trust process aims at close scrutiny of resource flows away from the public commons." Id. at 68 (1984).

52. Id. at 180 (1984).

53. Huffman, supra note 50, at 584.

54. S. REP. NO. 96-848, 96th Cong., 2d Sess. 84 (1980).

55. Kenison, Buchholz, & Mulligan, supra note 17, at 10436. It is in this sense that CERCLA trusteeship is very much like the public trust doctrines concept of state sovereignty over natural resources, a concept similar to public nuisance's notion of police power guardianship. Cases famous for their discussion of state sovereignty over natural resources include Maryland v. Amerada Hess Corp., 350 F. Supp. 1060, 2 ELR 20606 (D. Md. 1972); Maine v. M/V Tamano, 357 F. Supp. 1097, 3 ELR 20567 (D. Me. 1973); In re Steuart Transportation Co., 495 F. Supp. 38, 10 ELR 20278 (E.D. Va. 1980); and Puerto Rico v. SS Zoe Colocotroni, 456 F. Supp. 1327 (D.P.R. 1978), 628 F.2d 652, 10 ELR 20882 (1st Cir. 1980), cert. denied, 450 U.S. 912 (1981).

56. 380 N.W.2d 53 (Mich. App. 1985).

57. Id. at 59. CERCLA § 9614 provides: "Nothing in this chapter shall be construed or interpreted as preempting any State from imposing additional liability or requirements with respect to the release of hazardous substances within such State." CERCLA § 114(a), 42 U.S.C. § 9614(a), ELR STAT. 44043. This section should be distinguished from § 114(b), which precludes any person who receives compensation for removal costs, damages, or claims under CERCLA from receiving compensation for the same removal costs, damages, or claims under other state and federal law, and vice versa. CERCLA § 114(b), 42 U.S.C. § 9614(b), ELR STAT. 44043-44.

58. 380 N.W.2d at 59-60.

59. 42 U.S.C. §§ 6901-6991, ELR STAT. RCRA 001-046.

60. 642 F. Supp. 1339 (E.D. Va. 1986)

61. Id. at 1351. For RCRA's savings clause, see RCRA § 7002(f), 42 U.S.C. § 6972(f), ELR STAT. RCRA 034.

62. 642 F. Supp. at 1352. Persuading courts to exercise their discretion to allow pendent state claims in CERCLA natural resource damage actions should not prove to be an obstacle to public trustees. In addition to promoting judicial economy, convenience, and fairness to litigants, allowing pendent state claims in such actions clearly appears to be intended by CERCLA. For more on the use of pendent state claims in CERCLA actions, see Babich and Hanson, Injunctive and Declaratory Relief for States Under CERCLA, 18 ELR 10216 (June 1988). See also infra notes 65-67 and accompanying text.

63. 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985).

64. Id. at 1037, 15 ELR at 20359. See infra notes 81-82 and accompanying text. For more on the availability of injunctive relief in response actions, see Babich and Hanson supra note 62.

65. Id. at 1050, 15 ELR at 20366 (citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966) and progeny) and WRIGHT, MILLER, & COOPER, FEDERAL PRACTICE AND PROCEDURE § 3567.1 (1984)). See also United States v. Southeastern Pennsylvania Transportation Authority, 17 ELR 20001 (E.D. Pa. 1986) (where the court granted pendent jurisdiction over the plaintiffs' state claims since plaintiffs had raised valid federal claims under CERCLA); Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 17 ELR 20659 (9th Cir. 1987) (where the court ordered the state's CERCLA natural resource damage claims and state common law claims to be reinstated).

66. 759 F. Supp. at 1050, 15 ELR at 20366.

67. Specifically, the court noted that "while the State does not make the argument, we note that New York law appears to provide the State with restitution costs in a public nuisance action." 759 F.2d at 1042-43 n. 14, 15 ELR at 20362 n.14. Interestingly, the court noted further that "[t]his remedy may closely resemble response costs liability under CERCLA." Id. Two alternate public nuisance theories were also suggested by the court, namely defendants' continuing violations of state environmental laws constituting nuisance per se and defendants' maintenance of the hazardous waste site at issue constituting an abnormally dangerous activity and thus a public nuisance. 759 F.2d at 1051-52, 15 ELR at 20367.

68. 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984).

69. Id. at 301, 14 ELR at 20723.

70. No. 83-C-2383 (D. Colo.).

71. No. G-86-267 (S.D. Tex.).

72. Breen, supra note 3, at 10305.

73. See supra note 19 and accompanying text. There is some disagreement over whether CERCLA applies only to public resources. For example, Kenison argues that "[t]he broad public trusteeship created in CERCLA … establishes at a minimum a public interest in all natural resources." Kenison, Buchholz, & Mulligan, supra note 17, at 10439 (emphasis omitted).

74. See supra notes 30-34 and accompanying text.

75. CERCLA § 107(a), 42 U.S.C. § 9607(a), ELR STAT. 44024.

76. See, e.g., CERCLA § 106(a), 42 U.S.C. § 9606(a), ELR STAT. 44023.

77. See supra note 20 and accompanying text.

78. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. 44026.

79. It has been noted that "the question remains what types of encroachments upon public trust properties go 'too far' to win judicial acceptance." RODGERS, supra note 28, at 69 (1984).

80. See New York v. Shore Realty Corp., 759 F.2d at 1051, 15 ELR at 20366.

* Note: The Table refers to CERCLA's statutory provisions, and not to the regulations.

81. Id.

82. CERCLA § 106(a), 42 U.S.C. § 9606(a), ELR STAT. 44023 (abatement actions). See also New York v. Shore Realty Corp., 759 F.2d at 1049, 15 ELR at 20366 (CERCLA does not explicitly provide for injunctive relief in § 107 actions).

83. CERCLA § 122(j)(2), 42 U.S.C. § 9622(j)(2), ELR STAT. 44063. For an analysis of the legal versus equitable nature of CERCLA natural resource damage remedies, see Slavitt, Jury Trial Rights Under CERCLA: The Effects of Tull v. United States, 18 ELR 10127 (Apr. 1988).

84. RODGERS, supra note 28, at 176 (1977).

85. Id.

86. Id. at 185.

87. See supra notes 41-48 and accompanying text.

88. See Halper I, supra note 42.

89. See New York v. General Electric Co., 592 F. Supp. 291, 301, 14 ELR 20719, 20723 (N.D.N.Y. 1984).

90. See supra note 67.

91. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. 44026. See also United States v. Mottolo, 605 F. Supp. 894, 15 ELR 20444 (D.N.H. 1985) (the state or federal government has exclusive standing to recover for natural resource damages).

92. RODGERS, supra note 28, at 176 (1977).

93. New York v. Shore Realty Corp., 759 F.2d at 1051, 15 ELR 20367.

94. CERCLA § 107(a), 42 U.S.C. § 9607(a), ELR STAT. 44024.

95. PROSSER & KEETON ON TORTS § 90 (5th ed. 1984).

96. See CERCLA § 101(32), 42 U.S.C. § 4601(32), ELR STAT. 44007. See also Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 613, 9 ELR 20237, 20239 (4th Cir. 1979); New York v. Shore Realty Corp., 759 F.2d at 1042, 15 ELR 20362.

97. RODGERS, supra note 28, at 175 (1977).

98. Halper I, supra note 42, at 10292, 10294.

99. See supra notes 10-11 and accompanying text.