Protection and restoration of natural resources exists in legal regimes under US, European and other worldwide laws.

United States

Companies that are, or have been, owners or operators of vessels or facilities disposing or transporting hazardous waste or whose operations have, or may in the future, result in a release of oil, should be aware of the potential liability for natural resource damages under a variety of federal, state and local laws. Liability for natural resource damages may arise at sites involving historical contamination, instantaneous oil spills or accidents involving the release(s) of oil or hazardous substances.

In the US, liability for natural resource damages (NRD) is authorized under a variety of federal laws including, CERCLA, the Clean Water Act and the Oil Pollution Act, and environmental laws in more than 40 states. Under these laws, federal, state, local and tribal officials (natural resource “trustees”) may file claims on behalf of the public to recover damages from responsible parties to restore injured, destroyed or lost natural resources (land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and resources). Further, liability for NRDs, authorized by statute to be in addition to site remediation or “clean up” requirements, may include the costs to restore and/or replace the resource, compensation for lost uses (“services”) of the resource and trustee assessment costs.

Since 1980, over 750 claims for natural resource damages have been filed, including over 500 causes of action under federal laws and over 200 claims brought pursuant to State NRD laws and regulations. Of the federal claims, nearly 400 cases were brought under CERCLA for natural resource injuries associated with hazardous waste releases and/or sites and over 90 cases were brought under OPA. In this thirty-plus year timeframe, there have been over 770 settlements for NRD, resulting in over $3 billion in funds for the restoration of natural resources and their associated services, as well as thousands of acres of land preserved or donated for conservation easements.

For more information on the NRD liability regime, including a list of relevant statues and regulations, see www.NRDARPracticeExchange.com.

Europe

Transporters or disposers of waste and hazardous waste, companies whose operations have resulted in a discharge of dangerous substances or genetically modified organisms, as well as industries, need to be aware of the potential liability for environmental damage under the EU Environmental Liability Directive (ELD). Liability for environmental damage under the ELD may arise from an accidental release of hazardous substance(s) that damages protected species or habitats, soil or water.

In Europe, the “European Union Directive on environmental liability with regard to the prevention and remedying of environmental damage” (ELD) was adopted by the European Parliament in April 2004 and focuses primarily on the prevention of environmental damage. The ELD, which embodies concepts similar to the NRD regime under US law, makes Member States responsible for ensuring that “damage to water, land and biodiversity is either prevented, by taking appropriate measures in cases of imminent threats, or effectively remedied by restoring the previous condition if the damage has already been done”. Under the ELD, environmental liability is limited to “environmental damage”, which is defined as significant damage to protected species and habitats, water or soil.

In the EU, the number of cases arising under national legislation implementing the ELD varies greatly among the Members States. Few Member States, like Poland, have reported large numbers of cases requiring prevention and/or remediation of environmental damage pursuant to national law. Other Member States, like Austria, Belgium, Denmark and France, have indicated that no cases have yet been brought. More detailed findings of Member State experience with the ELD may be seen in official reports which were required to be submitted to the European Commission, under Article 18 of the ELD, by April 30, 2013.

For more inforamation, see www.EUELDPracticeExchange.com.

Global

The United Nations Environment Programme (UNEP) adopted a set of guidelines in 2010 for development of domestic legislation on liability, response action and compensation for damage caused by activities dangerous to the environment and affirmed that the guidelines were voluntary and “do not set a precedent for the development of international law".

In addition to the UNEP Guidelines, many countries, representing nearly every continent, have legislation that contains liability and/or remediation provisions for natural resource damages. In Russia, under the country’s Civil Code, a party may be subject to civil liability – either in terms of full monetary compensation or performance of remediation – for damages to natural resources. Under Chinese Tort Law, approved in December 2009, if “a company’s discharges or emissions are proven to cause environmental pollution, and if other companies or individuals consequently incur losses and damages, regardless of whether the polluter is at fault or whether the pollution discharges are within allowed volumes, the company will be liable for the damages”. In 2008, Samoa enacted its Marine Pollution Prevention Act, requiring “compensation for impairment of the environment other than losses of profit” resulting from a release of pollutant from a vessel. Mexican natural resource liability law implements the ‘polluter pays’ principle in that the person that generates soil, surface water and groundwater contamination is liable. Under the South African law, “National Environment Management Act 107 of 1998”, indicates that “every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment”.

These are but a few of the environmental liability regimes worldwide. For more information on natural resource liability regimes in the US, Europe and globally, contact us at Symposium@NRDonline.org.