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 JEP  Vol.8 No.4 , April 2017
Issues Trustees Face in Natural Resource Damage Assessments, Part II
Abstract: The first part of this two part series laid out the process that a Natural Resource Trustee will follow to complete a sound Natural Resource Damage Assessment (NRDA) as well as the typical challenges they face from the Responsible Party. The second part will present the typical issues that the trustee will face as the NRDA is tested in a court of law. A major litigation hurdle typically concerns what counts as “sound science” under the fact specific circumstances of a particular case. Many responsible parties will attempt to challenge a trustee’s assessment under the Daubert standard, which is the test for admissibility of evidence. However, because trustees are selected for their scientific expertise and subject to applicable laws and policies, including guidance on how to conduct a NRDA, trustees are generally the best arbiters of appropriate science, and as such should not be subject to a rigorous Daubert analysis.
Cite this paper: Kanner, A. (2017) Issues Trustees Face in Natural Resource Damage Assessments, Part II. Journal of Environmental Protection, 8, 482-502. doi: 10.4236/jep.2017.84034.
References

[1]   Kanner, A. (2015) Natural Resource Restoration. 28 Tulane Environmental Law Journal, 355, 376-391.

[2]   Farber, D.A. (1986) From Plastic Trees to Arrow’s Theorem. 1986 N. Illinois Law Review, 337, 337.

[3]   Kanner, A. and Nagy, T. (2005) Measuring Loss of Use in Natural Resource Damage Actions. 30 Columbia Journal of Environmental Law, 417, 417.

[4]   Kanner, A. and Zeigler, M. (2006) Understanding and Protecting Natural Resources. 17 Duke Environmental Law & Policy Forum, 119, 139-141.

[5]   Boehm, P. and Page, D.S. (2007) Exposure Elements in Oil Spill Risk and Natural Resource Damage Assessments: A Review. Human & Ecological Risk Assessment, 13, 418-448.
https://doi.org/10.1080/10807030701226293

[6]   Menefee, M. (1982) Recovery for Natural Resource Damages Under Superfund: The Role of the Rebuttable Presumption. 12 ELR 15057.

[7]   Allen, C.H. (2011) Proving Natural Resource Damage under OPA 90: Out with the Rebuttable Presumption, in with APA-Style Judicial Review? 85 Tulane Law Review, 1039, 1039.

[8]   Hoang, Y.P. (2011) Assessing Environmental Damages After Oil Spill Disasters: How Courts Should Construe the Rebuttable Presumption under the Oil Pollution Act. 96 Cornell Law Review, 1469, 1469.

[9]   Anderson, F.R. (1989) Natural Resource Damages, Superfund and the Courts. 16 The Boston College Environmental Affairs Law Review, 405, 436-440.

 
 
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