In addition to theories in common law, several federal laws establish liability for injury to natural resources, and authorize Colorado’s Natural Resource Trustees to act on behalf of the public and recover damages for the restoration of those injured resources.
1. The Comprehensive Environmental Remediation, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.
a. Section 9601. Definitions
- Subsection (6). Damages means damages for injury or loss of natural resources as set forth in section 9607(a) or 9611(b).
- Subsection (14). Hazardous Substance means any:
- Substance designated as hazardous within the Clean Water Act (33 U.S.C.A. § 1321(b)(2)(A)) 40 CFR 116.1-116.4,
- Element, compound, mixture, solution, or substance designated as hazardous within CERCLA (42 U.S.C.A. § 9602), 40 CFR 302.4
- Hazardous waste having the characteristics identified in the Solid Waste Disposal Act (42 U.S.C.A. § 6921), 40 CFR Part 261 Subpart C Section 261.20
- Toxic pollutant designated within the Clean Water Act (33 U.S.C.A. § 1317(a)), 40 CFR 401.15
- Hazardous air pollutant listed under the Clean Air Act (42 U.S.C.A. § 7412), 42 USCA 7412(b) and
- Imminently hazardous chemical substance or mixture designated within the Toxic Substances Control Act (15 U.S.C.A. § 2606) 15 USCA 2606(F).
- Subsection (16). Natural Resources means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources.
- Subsection (24). Remedy or Remedial Action means those actions consistent with a permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment.
b. Section 9607. Liability
- Certain entities associated with a vessel or facility, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for damages for” injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.” § 9607(a)
- Sums recovered by a State as trustee shall be used only to “restore, replace, or acquire the equivalent of such natural resources by the State.” § 9607(f)(1)
- The Governor of each State shall designate State officials who may act on behalf of the public as trustees for natural resources. “Such State officials shall assess damages to natural resources for the purposes of this chapter . . . for those natural resources under their trusteeship.” § 9607(f)(2)(B)
2. The Oil Pollution Act (OPA), 33 U.S.C. § 2701 et seq.
3. The Clean Water Act (CWA), 33 U.S.C.A. § 1251 et seq.