The Changing Landscape Of Liability For Natural Resource Damages

This article originally appeared in Anderson Kill's Policyholder Advisor (March/April 2013).

Many jurisdictions have announced that they plan to more actively pursue natural resource damages (“NRDs”) from potentially responsible parties (“PRPs”) deemed liable under CERCLA or Superfund. Recent developments in case law have changed the landscape when it comes to assessing the scope of this CERCLA/NRD liability and how to pay for it. NRDs are defined as “the dollar value of the appropriate degree of restoration necessary to assess, restore, rehabilitate, replace or otherwise compensate for the injury to ‘land, fish, wild life, biota, air, water’ as a result of a discharge.” NRDs also may be exacerbated by the spreading out of a discharge because of events such Superstorm Sandy said to be associated with climate change.