Natural resource damages are rarely at the forefront of a potentially responsible party’s mind when that party enters an environmental remediation. When approaching a remediation, parties, as well as enforcement agencies, tend to focus on—you guessed it—remediating. But in many cases, a successful remediation does not account for restoration. And though the parties may not have coordinated a restoration plan as a part of the remediation, a number of federal and state statutes do account for restoration, under natural resource damages provisions. Accordingly, parties who fail to consider natural resource damages during the remediation may find that they are not out of the woods yet in terms of potential liability.
For this reason, parties should consider coordinating remedial and restorative efforts, in order to avoid unanticipated expenses for litigating and/or settling claims for natural resource damages. And, make no mistake, costs related to natural resource damages can be substantial. In fact, some claims for natural resource damages end in settlements that eclipse the cost of the remediation itself. See, e.g. Deepwater Horizon Consent Decree at ¶ 15-17, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, Nos. 10-4536, 10-04182, 10-03059, 13-4677, 13-158, and 13-00123 (E.D. La. Apr. 4, 2016) (ordering $7.1 billion, plus $1 billion in accrued interest for natural resource damages alone). Thus, it is vital to have a basic awareness of natural resource damages.
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