Photo (c) USGS, Public Domain

Photo (c) USGS, Public Domain

Natural Resource Damages

Karen Bradshaw, Settling for Natural Resource Damages, 40 HARV. ENVTL. L. REV. 211 (2016).

The United States manages natural resources held in the public trust for the collective benefit of all citizens. When human action injures certain natural resources, the government has statutory authority to pursue monetary damages, which are used to restore the resources to their pre-injury condition. As the only statutory tort remedy in environmental law, natural resource damages provide a valuable opportunity to consider the efficiency of a tort regime as a tool for addressing environmental problems. Moreover, administration of the remedy provides insights into interagency dynamics and valuation of natural resources without a market value. At present, these important inquiries are sharply limited by a lack of comprehensive information about the remedy. Commentators routinely underestimate the frequency and size of claims by failing to account for settlement, which resolves over ninety-five percent of natural resource damages matters, and lesser-known applications of the remedy.

This Article begins to fill the void of information surrounding natural resource damages settlements. It presents a novel empirical overview of all settlements by federal trustees between 1989 and 2015, constructed from data gathered by Freedom of Information Act requests to each relevant agency. The available data indicate that federal agencies settled for $10.4 billion across hundreds of claims over more than twenty years. This Article maps the statutory authorities that agencies use to provide a comprehensive overview of the field. Ultimately, the data presented in this Article lay a foundation for the important, yet under-theorized, questions surrounding the potential for statutory tort remedies to address environmental problems.

* Translated into Mandarin and reprinted in the top-ranked Chinese environmental law journal, CHINESE ENVTL. & RESOURCES L. REV., 环境资源法论丛 (forthcoming 2018).

* Reprinted in 54 ROCKY MNT. MIN. L. FDN. J. (2017).

* One of the top natural resources law articles of 2015-2016, selected by peer review.

* One of the top twenty environmental law articles of 2016-2017, selected by peer review.