For many years, natural resource damages (NRD) enforcement in Pennsylvania has been sporadic and fleeting. Like most states, the commonwealth typically only pursued NRD in response to large releases or as part of a “trustee council” with the federal government or other state trustees. Today, NRD enforcement—and NRD law—in the commonwealth is much different. In recent years, the commonwealth, with the help of contingency-fee counsel, have filed a series of increasingly aggressive and far-reaching lawsuits demanding NRD throughout the state. A recent decision from the Pennsylvania Commonwealth Court addressing Pennsylvania’s authority and standing to seek NRD may further embolden state officials. The regulated community should be aware of changing NRD landscape in Pennsylvania and work with counsel to manage potential NRD liabilities.

To appreciate the current state of the commonwealth’s NRD enforcement efforts, one must consider how those efforts have evolved over time. The commonwealth’s first foray into NRD was a motion to intervene in litigation between the U.S. Environmental Protection Agency and various private entities relating to a Superfund cleanup site in Union Township, Berks County. Filed in 1993, the commonwealth argued, inter alia, that it was the designated “trustee for the commonwealth’s natural resources” under the Environmental Rights Amendment (ERA) of Pennsylvania’s Constitution, Article I, Section 27, and sought to recover “payment of its present and future natural resource damage pursuant to” CERCLA Sections 107 and 113. The PADEP noted that “this is the first claim for natural resources damages being brought by the department in its position as trustee of the natural resources of the commonwealth of Pennsylvania.”

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