March 01, 2017

Data Quality in Natural Resource and Environmental Damage Litigation

Tim Verslycke and Dallas Wait

Fifteen years after the landmark Exxon Valdez natural resource damages (NRD) settlement, we are witnessing a new generation of NRD claims. As shown by both the recent Deepwater Horizon and New Jersey Bayway refinery settlements, large petroleum releases remain in the focus of trustees, responsible parties, and the public. However, a wide range of other types of sites (e.g., historic smelters, wood treating facilities, industrial landfills) and chemical releases (e.g., specialty chemicals, heavy metals, solvents, pesticides, polychlorinated biphenyls (PCBs)) have been subject to recent ecological damage claims. In addition, there has been an increase in ecological damage claims as part of citizen suits under several environmental statutes (e.g., Resource Conservation and Recovery Act (RCRA), Clean Air Act (CAA), Clean Water Act (CWA)). Although evaluating ecological damage associated with petroleum releases has always been challenging, the expansion of ecological damage claims to new types of sites and releases has further complicated and confounded attempts to produce reliable data that adequately address the objectives of an environmental damages investigation.

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