Natural resource damages (NRDs) are typically not at the forefront of practitioners’ consideration when assessing potential environmental liability. A recent resurgence of an interest in NRD recovery, particularly in New Jersey, has made it evident that the threat of an NRD recovery action is not only real, but potentially very costly to defend.
NRDs compensate the public through trustees for injury to natural resources. At the federal level, certain environmental statutes such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act (OPA) authorize the United States, states, and Indian tribes to act on behalf of the public as Natural Resource Trustees. Pursuant to CERCLA and OPA, there are regulations in place for assessing and quantifying NRDs. A Natural Resource Trustee conducts a Natural Resource Damage Assessment (NRDA) to calculate the cost to restore an impacted natural resource. Consistent with the purpose of NRDs, the NRDA examines the services provided by the non-impacted resources and then compares that to the reduction in the resource’s services as a result of the contamination.