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Natural Resource Damage Assessments: Advantages, Disadvantages, and Mechanics of Cooperation

May 30, 2013

An ELI Associates Seminar

The Oil Pollution Act (OPA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provide guidance on how trustees and responsible parties can work together on oil spill and hazardous substance Natural Resource Damage (NRD) claims. Once the government—as trustee of the public’s natural resources—claims damages for injuries to natural resources from a potentially responsible party (PRP), there are at least two avenues to proceed: litigation and cooperation.

While litigation offers some advantages to both parties, it can be a very long and expensive process. However, both CERCLA and OPA provide an alternative approach through cooperation. Because of the benefits of the cooperative approach, it has become an increasingly popular avenue to restoration. But what are the advantages and potential drawbacks of such cooperation and how does it work? Once cooperation is begun, is litigation no longer an option?

This seminar brought together Natural Resource Damage Assessment (NRDA) practitioners to discuss what the cooperative process has looked like in the past and how it could be further developed to become a more efficient and effective process. Panelists and participants discussed guiding principles for undertaking cooperative assessments.

Panelists:
Joseph C. Steinbacher, Technical Director, O’Brien & Gere (moderator)
Mark Barash, Senior Attorney, Northeast Region, Office of the Solicitor, U.S. Department of the Interior
Tom Brosnan, NOAA Office of Response & Restoration
Brian D. Israel, Partner, Arnold & Porter LLP

Materials:
Mark Barash powerpoint "Cooperative NRDA Practice"
Tom Brosnan powerpoint "Cooperative NRDA's: Management and Technical Perspectives"
Brian Israel article: "Natural resource damage claims: Strategies for responding to increased federal and state enforcement"
Members may log on to access the mp3 recording.

ELI Resources:
Learn about the ELI Ocean Program and its work on Gulf of Mexico Recovery and Restoration
Learn about the NRDA process and how it's being used on the Gulf Coast
Fact sheet: NRDA in Action: How the Public Has Helped Shape Natural Resource Restoration (Feb 2012)
Fact sheet: Participating in Natural Resource Damage Assessment and Restoration (Jan 2013)

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