2018 Regulation + Legislative Context
Laws in the United States, European Union and around the world govern compensation for injury to natural resources and the environment.
In the US, liability for natural resource damages (NRD) is authorized under a variety of federal laws including, CERCLA, the Clean Water Act and the Oil Pollution Act, and environmental laws in more than 40 states. Under these laws, federal, state, local and tribal officials (natural resource “trustees”) may file claims on behalf of the public to recover damages from responsible parties to restore injured, destroyed or lost natural resources (land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and resources). While the national legislative acts that cover NRD have been largely unchanged for the last 20 years, the practice is actively evolving around the application of fundamental principles, and state laws on NRD have undergone and are still undergoing changes. Additionally, the future landscape of NRD is being shaped currently, with a recent set of NOAA guidelines on sampling for an oil spill NRDA in the arctic highlighting the expected future challenges of natural resource damage and restoration.
For more information on the NRD liability regime, including a list of relevant statues and regulations, see the Group's website www.NRDARPracticeExchange.com.
In Europe, the “European Union Directive on environmental liability with regard to the prevention and remedying of environmental damage” (ELD) was adopted by the European Parliament in April 2004 and focuses primarily on the prevention of environmental damage. The ELD, which embodies concepts similar to the NRD regime under US law, makes Member States responsible for ensuring that “damage to water, land and biodiversity is either prevented, by taking appropriate measures in cases of imminent threats, or effectively remedied by restoring the previous condition if the damage has already been done”. Under the ELD, environmental liability is limited to “environmental damage”, which is defined as significant damage to protected species and habitats, water or soil. Current ELD practice spans over 1000 cases of environmental damage in the EU, and has undergone review for the EU’s REFIT (Regulatory and Fitness) program (which has the potential to bring policy changes at the EU level. The 2013 Offshore Safety Directive mandated amendments to the ELD, and further issues are drawing consideration of applicability of the ELD, such as fracking, carbon sequestration, and genetically modified organisms. Additionally, Serbia and Turkey have taken steps towards implementing environmental damage legislation as part of the EU accession processes, and other potential member states will have to implement their own environmental liability regimes before acceding to the EU.
For more inforamation, see the Group's website www.EUELDPracticeExchange.com.
Globally, the United Nations Environment Programme (UNEP) adopted a set of guidelines in 2010 for development of domestic legislation on liability, response action and compensation for damage caused by activities dangerous to the environment and affirmed that the guidelines were voluntary and “do not set a precedent for the development of international law". In addition to the UNEP Guidelines, many countries, representing nearly every continent, have legislation that contains liability and/or remediation provisions for natural resource damages. Amendments to China’s Environmental Protection Law, which took effect on January 1, 2015, mark a significant change in China’s environmental enforcement regime, and hold the potential to seriously change how environmental damage is treated in China. Canada passed a bill in March 2015 that creates liability for damage to “non-use value” of public resources related to offshore oil operations, and has two more bills with similar clauses for railroad and pipeline operations pending. Mexico passed a Federal Law on Environmental Liability that creates liability for environmental damage in 2013. In November 2014, a special environmental tribunal in Chile issued its first sentence for environmental damage under Chile’s Environmental Act. Around the world, countries on all six continents have laws governing environmental liability, varying in what operations are covered, what resources are covered, and what is required when damage occurs, and in some countries, individual states have separate laws including Argentina, Australia, Brazil, Russia, and Switzerland.
These are but a few of the environmental liability regimes worldwide. For more information on natural resource liability regimes in the US, Europe and globally, contact us at Symposium@NRDonline.org.