Natural Resource Damages

• Author: Kim Smaczniak
• Pages: 179-188

CHAPTER 11

Natural Resource Damages

KIM SMACZNIAK

I. What Are Natural Resource Damage Laws?

A number of jurisdictions have laws that provide for separate liability for

harms caused to natural resources. While tort law and other civil liability

tend to focus on the impairment of private rights over such resources, natu-

ral resource damage (NRD) laws broaden the scope of liability to include

harm to the public value of the affected natural resource. NRD laws also tend

to be distinct from laws that focus on alleviating a current or threatened harm

to human health or the environment. NRD law seeks to restore a natural

resource to its functionality prior to the harm. In contrast, many emergency

response and remediation laws focus on containing and eliminating exposure

to the harm (e.g., the contamination) without necessarily restoring the envi-

ronment to its original state. For example, liability for an oil spill under many

legal regimes includes the cost to contain and remove the oil from the envi-

ronment. It also may include an NRD component: a separately assessed cost

to restore the impacted ecosystem to its prespill status. NRD laws thus serve

an important, complementary function to other environmental and natural

resource laws. They provide additional deterrence to environmentally harm-

ful activities and, in most jurisdictions, a dedicated source of funding to

assess and restore ecological damage resultant from such activities.

In jurisdictions that have not yet developed laws explicitly providing for

NRD, in some cases liability may nonetheless be imposed under background

civil liability. For example, in 2004, the Canadian Supreme Court held that

the federal government may recover damages for harm to a public forest

under a theory of public nuisance and other common law torts. This deci-

sion has been hailed as opening the door for other NRD claims by the Cana-

dian government.1 Such civil liability mechanisms, however, typically lack a

mechanism by which damages are allocated to natural resource restoration

efforts.

While the principle underlying NRD laws has a venerable origin in

Roman and English public trust doctrine, the relatively recent emergence of

statutory frameworks for NRD liability is a significant trend.2 This chapter

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