37 Pages Posted: 19 May 2015
Date Written: May 18, 2015
Public trustees at the state, federal, and tribal level are tasked with ensuring that those responsible for destroying or damaging natural resources sufficiently compensate the public for its loss. Those trustees have the fiduciary duty to maintain and restore the natural resources within the public trust. Since the late 1980s, a consensus has formed around a set of guiding principles and best practices in natural resource damage restoration. Public trustees now agree that in order to fully compensate the public for its loss, restoration of a destroyed or damaged resource is preferable to an award of money damages. Natural resource restoration requires that the injured natural resources be restored to their uncontaminated condition or replaced with equivalent resources, for example when new wetlands are created to replace former wetlands damaged or destroyed by pollution. Public trustees also use certain methodologies, such as resource and habitat equivalency analyses, to determine other components of the public’s loss due to the destruction or damage to its natural resources by polluters. Both principles require polluters to compensate the public for its lost resources by providing restored or additional natural resources. Beyond a set of essential public trust principles and best practices, however, public trustees have considerable discretion in carrying out their fiduciary duties and in achieving their mission of conserving, replenishing, and restoring the natural resources in their care. This Article explores these important developments in natural resource restoration law as well as the interplay between public trustees’ legal duties and their discretion to determine how best to carry out those duties when conserving and restoring natural resources.
Keywords: Natural resource restoration, natural resource damages, NRD, NRR, habitat equivalency analysis, resource equivalency analysis, HEA, REA, public trust, public trust doctrine, compensatory or primary restoration, public trustee, natural resource trustee, environmental economics, environmental law
JEL Classification: K32, N5, O13, Q00, Q2, Q20, Q21, Q22, Q23, Q24, Q25, Q26, Q28, Q29
Suggested Citation: Suggested Citation
Kanner, Allan, Natural Resource Restoration (May 18, 2015). Tulane Environmental Law Journal, Vol. 28, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2607616