October 01, 2015

The Wildlife Wildcard: Natural Resource Damages and Putting a Price on Nature

Marissa L. Curran

As lawyers, we are often tasked with putting a price on the priceless. The spokesperson for General Motors did so during the spring 2014 congressional hearings to explain why GM decided not to recall faulty ignition switches that put some 28 million cars at risk for malfunctioning airbags (it was a “business” decision). Lawyers working for the families of the 9/11 victims did it when they were negotiating the life insurance policy proceeds the families would receive. Lawyers for insurance companies do it every day. Things are no different in the environmental law context. Attorneys, juries, judges, and governmental agencies are tasked with putting a price on the value of nature every time natural resource damages (NRDs) are sought in CERCLA litigation. Calculating appropriate natural resource damages involves not just legal, but economic and philosophical questions. Business owners should have a working knowledge of how these decisions are reached before they find themselves facing an NRD claim. This article generally explains the statutory scheme that sets out natural resource damages, gives an overview of the numerous considerations that go into the government putting a price tag on nature’s resources, and suggests considerations for business owners who may be targeted for these types of damages.

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