Seven Government Assumptions to Challenge Regarding Natural Resource Damages

Three federal statutes (the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); the Oil Pollution Act (OPA); and the Clean Water Act (CWA), as well as some state-specific statutes, allow for the pursuit of monetary or nonmonetary damages if a release of petroleum products or hazardous substances has resulted in injury to natural resources, such as waterways, wetlands areas, and wildlife, that are held in trust for the public. Placing a monetary value on these priceless resources necessarily involves subjective analysis, but some recent government claims have been for amounts far in excess of what a reasonable analysis of the facts would suggest. These claims have typically calculated monetary damages using unrealistic assumptions. Seven examples of common unrealistic assumptions include ignoring historical baseline contamination, overstating the area of resource injury, exaggerating levels of resource injury, assuming excessive timeframes for resource injury, inflating injured resource values, undervaluing restoration credit, and overstating restoration costs.