Some Details: Climate
The Climate Change/NRD Framework focuses on a six-step process to evaluate potential impacts of climate change on natural resource damage (NRD) liability, assessment and restoration: 1. “Incident Analysis” to consider the nature and complexity of the release, the potentially affected habitats and services they provide, and their vulnerability to climate change and extreme weather event (EWE) factors; 2. “Determination of Climate Change Factors” that are relevant to the specific incident; 3. “Determination of Investigation Intensity” to determine to what extent the climate change and EWE factors should be analyzed for their influence on baseline and injury; 4. “Injury Evaluation” to determine how each material climate change or EWE will impact each alleged injury; 5. “Scaling” to evaluate impacts on scaling of service losses; and 6. “Restoration Project Selection” to evaluate impacts on selection and implementation of proposed restoration projects. Optimally, this multistep process is undertaken as part of a cooperative assessment wherein scientific and economic experts representing both responsible parties (RP) and trustee entities and interests evaluate the details, the merits, and the practicality of considering climate change (CC) and EWE factors in the NRDA. The result of the application of this multistep framework then should be an incident-specific plan to conduct such an evaluation.
As changes in climate and extreme weather events may result in observable and measurable changes in habitats and natural resources and are increasingly becoming a factor in the NRDA process, the Framework offers attorneys and their clients a suggested pathway to consider these influences when assessing potential liability. Key questions center on deciding when, and to what extent, climate change and EWE factors need to be assessed in an NRDA including: (a) to what extent non-release factors (described below) should be considered or investigated in specific incidents; and (b) what methods should be used to conduct such investigations.
Climate Change affects the natural environment in two basic ways and attorneys need to be cognizant of these influences. First, changes in climate introduce elements such as sea level rise and increasing ocean and land mass temperatures, on global, regional, and local scales, which, in turn, impart observable and measurable long-term changes to the environment and the habitats and natural resources therein. Moreover, such changes can alter human uses of resources and the relative values of various services these resources provide. Second, the increasing frequency and severity of EWE attributable to changes in climate (e.g., tropical cyclones, wildfires, extreme precipitation, flooding, storm surges, etc.) cause large episodic and in some cases permanent disturbances in those habitats and natural resources that may impact liability determination. While changes in climate can result in permanent shifts in physical and biological resources, EWEs result in regional, and more often, local large-scale upsets, which may or may not permanently change natural resources. Both changes in climate and EWEs may result in observable and measurable changes in habitats and natural resources considered under the NRDA process—whether Oil Pollution Act (OPA) or CERCLA (Superfund) driven.
The level of effort devoted to evaluation of CC and EWE factors on NRDA components—baseline, injury, restoration—will be determined by the level of Investigation Intensity (Step 3 above) considered appropriate in each specific case. The Framework process represents a balance between the goal of accurate delineation of climate-related effects and the need for cost-effective and timely resolution of NRD claims.
Some Details: PFAS
The PFAS/NRD Framework focuses on the evaluation of the potential impacts of PFAS on natural resource liability, assessment and restoration through six steps: 1. “Frame the Problem” to define PFAS in the current instance; 2. “Understand PFAS Usage” to determine what extent PFAS were used at the site; 3. “Establish Discharge Pathways” specific for PFAS to the environment; 4. “Identify Receptors” to assess the potential for PFAS to have reached both human and environmental receptors; 5. “Evaluate Service Loss” due to PFAS contamination; and 6. “Determine Restoration Alternative” to identify possible alternatives for natural resource restoration of the lost services.
Given the complex nature of PFAS, there are unique issues and challenges when determining potential liability for natural resource damages that attorneys and their clients need to be aware of when developing site-specific case strategies. For example, the term PFAS includes precursor compounds, which tend to break down in the environment to certain terminal compounds, as well as the terminal compounds themselves. Furthermore, there are differences in what constitutes a PFAS compound across different states and regulatory agencies, leading to confusion over how to define them. In addition, only selected PFAS compounds have regulatory thresholds or are of interest to regulators and/or natural resource trustees at this time. The Best Practice Approach Framework provides a structure to work through some of these thorny considerations.
Utilizing the suggested Best Practice Approach Framework can offer a better understanding of potential liability at a particular site, including the appropriate level of remediation and natural resource restoration. In particular, offering a way to establish baseline levels of PFAS, as well as natural resource services at a site, may allow for a better assessment of any future changes in services related to PFAS. Separation of baseline services from potential impacts of PFAS ensures proper causation links are met to allege liability. In addition, a clear understanding of pathways of potential contamination as well as natural resource receptors may allow steps to be taken that can reduce or prevent the loss in natural resource services that may occur. All of these can better position PRP clients relative to potential liability.