Natural resource restoration: the interface between the Endangered Species Act and CERCLA's natural resource damage provisions.

I. INTRODUCTION

Protection of endangered species and the clean up of hazardous waste sites represent two of the past decade's most significant environmental issues. Both are hotly debated largely because associated costs can be high, whether from the direct cost of cleaning up sites or the indirect costs of lost jobs and lifestyles. The primary example of these high costs is the infamous northern spotted owl controversy. Debate on both issues and associated laws -- the Endangered Species Act of 1973 (ESA)(1) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)(2) -- is likely to continue. Although much has been written about the ESA and CERCLA, there has been little discussion regarding integration of the two statutes. Increasingly, however, hazardous wastes from CERCLA sites are injuring either species protected under the ESA or habitat critical to those protected species. Accordingly, the time is ripe to examine the interface between the ESA and CERCLA.

This article examines the effect that injuries to ESA-listed species may have on the selection of the CERCLA natural resource remedy. Part II examines the principal provisions of the ESA, including the very limited role of economics. Part III provides a cursory examination of the relevant CERCLA natural resource damage authorities, the statutory preference for restoration, and the argument that preference for restoration is nullified where the costs of that restoration are "grossly disproportionate" to the value of the natural resource injured, Finally, Part IV examines the interface of the requirements of the two statutes and argues that the protection mandates of the ESA effectively skew selection of a CERCLA natural resources remedy in favor of a comprehensive restoration strategy ("on-site, in-kind") where the natural resources injured include, or are, species protected under the ESA. Part V concludes.

II. PRINCIPAL PROVISIONS OF THE ESA AND THE ROLE OF ECONOMICS

A. Background and Policy

The ESA is a landmark in the evolution of environmental protection and wildlife law. Prior to this century, most natural resource law in the U.S. derived from state statutes, the public trust doctrine, and common law theories such as nuisance, trespass, or tort. Partly in response to the demise of the passenger pigeon, Congress passed the Lacey Act(3) in 1900 and a variety of federal conservation laws followed.(4) During the 1960s and 70s, Congress enacted additional environmental legislation, including the first statutes designed to preserve and conserve endangered species.(5) In 1973, Congress enacted the current Endangered Species Act, revising and strengthening the earlier statutes.

The ESA embodies the paramount concern expressed by Congress that various species of fish, wildlife, and plants increasingly were becoming depleted and extinct as a consequence of economic growth and development.(6) Accordingly, the entire statutory scheme creates a presumption in favor of preserving species, often without regard to cost. The notion that the existence of a species has intrinsic value, which is difficult to measure in traditional economic terms, is fundamental to this statutory presumption. Fundamental also is the recognition that extinction is forever, and therefore "extinction is quite literally a fate worse than death."(7) Unlike other environmental problems, the result cannot be reversed or remediated.

The Supreme Court, in TVA v. Hill,(8) encapsulated and upheld the ESA's primary policy: "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute."(9) Citing the legislative history of the statute, the Court upheld the Congressional edict that species protected under the ESA are priceless:

As we homogenize the habitats in which these plants and animals 

evolved, and as we increase the pressure for products that they are

in a position to supply (usually unwillingly) we threaten their -- and

our own -- genetic heritage.

The value of this genetic heritage is, quite literally, incalculable.

Who knows, or can say, what potential cures for cancer or

other scourges, present or future, may lie locked up in the structures

of plants which may yet be undiscovered much less analyzed?

... Sheer self-interest impels us to be cautious.

The institutionalization of that caution lies at the heart of

H.R. 37.(10)

Indeed, the Supreme Court ratified that institutionalized caution by enjoining the operation of a nearly-completed $100 million federal dam project authorized prior to enactment of the 1973 statute.(11) The Supreme Court found that operation of the Tellico Dam would eliminate the remaining habitat of the endangered snail-darter, and therefore, that the ESA required the Court to enjoin operation of the dam.(12) Even a $100 million expenditure(13) failed to persuade the Court that economic considerations should prevail.

Concededly, this view of the Act will produce results requiring the

sacrifice of the anticipated benefits of the project and of many millions

of dollars in public funds. But examination of the language,

history, and structure of the legislation under review here indicates

beyond doubt that Congress intended endangered species to be

afforded the highest of priorities.(14)

Since TVA v. Hill, courts have underscored the subservience of economic considerations to the federal policy of species preservation, particularly where preliminary injunctive relief is sought. The numerous cases arising from the designation of the northern spotted owl as endangered illustrate this point.(15) In Portland Audubon Society v. Lujan,(16) the court preliminarily enjoined Bureau of Land Management (BLM) timber sales proposed in northern spotted owl habitat because they could harm the protected spotted owl.(17)

BLM and defendant intervenors argued that the balance of equities weighed against issuance of an injunction because timber sales in the northern spotted owl habitat were necessary for the economic survival of the timber industry and that the "loss of habitat would have minimal, if any, impact on the survival of the northern spotted owl as a species."(18) Judge Frye of the District Court of Oregon rejected defendants' arguments, concluding that:

Unreasonable as it may seem to the timber industry and the many

men and women dependent on timber supply for their very livelihood,

and unreasonable as it may seem to the counties which receive

funds from timber harvests ... the law will allow no less in

this case [than issuance of an injunction].(19)

Congressional policy gives species preservation priority over economic considerations. This policy has been ratified by the courts, and as the Supreme Court explained, this policy is reflected "in literally every section of the statute."(20)

B. ESA Statutory Provisions and the Minimal Role of Economics

In addition to Congress's policy precluding economic considerations, almost all of the specific implementing provisions of the statute expressly foreclose economic consideration. Economics is excluded from the listing process, jeopardy determinations, and taking prohibitions. It may be considered, however, in the designation of critical habitat.

1. Listing

Responsibility for listing species under the ESA resides with the Secretaries of Interior and Commerce.(21) The Secretary of Interior delegated this authority to the U.S. Fish and Wildlife Service (FWS), and the Secretary of Commerce delegated its authority to the National Marine Fisheries Service (NMFS). These two agencies promulgated joint regulations implementing the statutory listing process provisions.(22)

Pursuant to the ESA, species may be listed as endangered or threatened based on any of five statutory factors:

(A) the present or threatened destruction, modification, or

curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or

educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued

existence.(23)

In determining whether a species will be listed, the Secretary must rely "solely on the basis of the best scientific and commercial data available . . . ."(24) Even after TVA v. Hill, Congress did not amend the statute to incorporate economics in the listing decision. Moreover, in 1982, Congress explicitly rejected this option, noting that "economic considerations have no relevance to determinations regarding the status of a species . . . ."(25) Instead, Congress amended the ESA by adding the term "solely" to make clear that listing determinations were to be grounded upon an evaluation of the biological risks faced by a species and not upon other non-biological factors.(26) The FWS and NMFS, therefore, are prohibited specifically from considering economics in the listing process. "Consequently, the listing process is exempt from various laws and executive orders that otherwise require an economic analysis."(27)

2. Jeopardy Determination

Once listed, a species receives a variety of protections. One of the ESA's most significant protections is the "no-jeopardy" mandate of section 7(a)(2).(28) Specifically, each federal agency is obligated to "insure that any action authorized, funded or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species . . . ."(29) Federal agencies must make the jeopardy determination using "the best scientific and commercial data available."(30)

In interpreting the section 7 mandate to avoid jeopardy, the Supreme Court held in TVA that economic consequences are irrelevant.(31) After reviewing the legislative history, the Court found that Congress rejected language proffered by the Senate which would have required federal agencies to carry out programs that are "practicable" for the protection of listed species(32) -- a provision that arguably would have allowed for consideration of economics.(33) The 1979 ESA amendments changed the absolute directive to insure against jeopardy to the current directive to insure that the species is "not likely to" be jeopardized. However, this amendment addresses issues of scientific uncertainty, not economics.(34) Courts have not viewed this language to allow consideration of economics or to diminish the precedential force of TVA v. Hill. The First Circuit summarized the statutory change as follows:

Although the 1979 Amendments to the ESA softened the obligation

on an agency from requiring the agency to "insure" the species

would not be jeopardized to requiring the agency to "insure" that

jeopardy is not "likely", . . . the legislative intent was that the Act

"continues to give the benefit of the doubt to the species."(35)

In short, economic considerations have no role in jeopardy determinations.

3. Critical Habitat Designation and Protection

In addition to requiring that actions undertaken by federal agencies are not likely to jeopardize the continued existence of protected species, section 7(a)(2) mandates that actions cannot result in destruction or adverse modification of habitat designated as critical to such species.(36) Either the FWS or NMFS must designate critical habitat to the extent prudent for each species listed under the ESA.(37) Critical habitat includes specific areas within the area occupied by the species at the time of listing on which those physical and biological features that are essential to the conservation of the species are present and which may require species management considerations or protections.(38) Areas outside the species' range at the time of the listing may be included as critical habitat upon a determination that such areas are essential to the conservation of the species.(39)

Designation of critical habitat is virtually the only requirement of the ESA in which economic considerations may be, and must be, considered. The statute provides that the Secretary 'shall designate critical habitat ... on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat."(40) Economics and other non-biological considerations play a role in the designation phase, but appear to have minimal impact in the implementation phase.(41)

Once critical habitat is designated, section 7(a)(2) mandates, similar to the protection afforded when a species is listed, that federal agencies must "insure that any action authorized, funded, or carried out by such agency ... is not likely to ... result in the destruction or adverse modification of habitat of such species which is determined ... to be critical ...."(42) The implementing regulations define "destruction or adverse modification" as:

a direct or indirect alteration that appreciably diminishes the value

of critical habitat for both the survival and recovery of a listed species.

Such alterations include, but are not limited to, alterations

adversely modifying any of those physical or biological features that

were the basis for determining the habitat to be critical.(43) As with a determination of jeopardy, economic considerations may not be taken into account when insuring compliance with section 7(a)(2).(44)

4. The "Take" Prohibition

The ESA's section 9 "take" prohibition provides significant protection for listed species.(45) Taking of a protected species is affirmatively prohibited within the U.S. or upon the seas.(46) Furthermore, section 4(d) gives the Secretary authority to issue protective regulations designed to prohibit the taking of any threatened species of fish or wildlife.(47)

The prohibitions against "taking" are comprehensive(48) and, unlike section 7, apply to private persons as well as to federal agencies. The "takings" prohibition applies to all "persons" within the jurisdiction of the United States.(49) "Take" is broadly defined in the ESA to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(50) Like the provisions governing the listing of a species and a determination of "jeopardy," economics is not a proper consideration in application of the taking prohibitions.(51) Only evidence of the taking is relevant to a Andft of violation.(52)

In Defenders of Wildlife v. EPA,(53) the court found that EPA's continued registration of the pesticide strychnine pursuant to the Federal Insecticide, Fungicide and Rodenticide Act violated the "takings" prohibitions in the ESA.(54) Evidence was submitted that members of various protected species died of strychnine poisoning.(55) EPA argued that an insignificant number of endangered species died from secondary strychnine poisoning, and there was no evidence that such deaths resulted from EPA's action to allow the use of the pesticide.(56) Furthermore, EPA argued that because the plaintiffs were seeking a cancellation of the strychnine registrations, they must proceed under FIFRA.(57) FIFRA allows for the registration of a pesticide after ensuring that it does not "cause unreasonable adverse effects on the environment"(58) taking into account the environmental costs and benefits of the use of a pesticide. The circuit court rejected these arguments, concluding that "[e]ven though a federal agency may be acting under a different statute, that agency must still comply with the ESA."(59) Accordingly, the cost/benefit analysis used under FIFRA was irrelevant to the ESA claim. The district court held that "[t]he strong statuary presumption in the ESA is preservation of endangered species, however, even when the practical cost is extraordinary. There is no level of threat to endangered species that can be deemed |insignificant' absent an incidental take statement."(60)

Likewise, in Louisiana ex rel. Guste V. Verity,(61) NMFS issued protective regulations, pursuant to section 4(d), designed to reduce mortality of a number of protected species of sea turtles.(62) The regulations required shrimp trawlers to install and use turtle excluder devices (TEDs) in their nets and to limit trawling time.(63) Plaintiffs alleged that the cost to purchase and install the devices was $200 to $400 per TED, or $5.9 million per year.(64) The court rejected the economics-based argument because, "Congress has decided that these losses cannot compare to the |incalculable' value of genetic heritage embodied in any protected living species."(65) Other courts have followed suit and found "takings" despite economic impacts.(66)

The statutory exemptions for takings available under the ESA support the thesis that economics plays no role in the taking provisions. Section 10 enumerates the conditions upon which an otherwise prohibited "taking" is allowed.(67) Pursuant to section 10, the Secretary has the discretion to issue "take" permits in three situations: (1) for scientific purposes; (2) for efforts to enhance the propagation or survival of the affected species; or (3) for takings which are incidental to the carrying out of an otherwise lawful activity.(68) Before such permit may be issued, however, the Secretary must find, among other determinations, that (1) the taking will be incidental; (2) the applicant will minimize and mitigate the impacts of the taking; and (3) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.(69) These narrow exemptions do not include the overriding consideration of economics.

Currently circuit courts are split as to whether habitat degradation resulting in harm to the protected species can constitute a "taking."(70) In a series of cases involving the Palila bird in Hawaii, environmental groups argued that Hawaii violated the section 9 "take" prohibition by permitting feral goats and sheep to destroy the habitat of the endangered Palila bird which harmed the species.(71) The Palila I plaintiffs offered no evidence of dead birds or direct injury. Nevertheless, the district court found that the goats and sheep were causing the "relentless decline of the Palila's habitat."(72) The Ninth Circuit affirmed and concluded that Hawaii's action violated the section 9 "take" prohibition because grazing activity endangered the Palila.(73) In Palila II, plantiffs sought to compel the State to remove another species of sheep from the Palila's habitat.(74) The Ninth Circuit again affirmed the lower court's finding of taking on the grounds that habitat destruction sufficient to drive the species to extinction constituted harm and was therefore a taking.(75)

5. Federal Agency Duty to "Conserve"

The federal agency duty to conserve listed species is another statutory provision which affords additional protections.(76) While the extent to which economic considerations may be taken into account by federal agencies is unclear, and the scope of actions to be taken is discretionary, a duty of some form is unequivocal. In section 2(c)(1), the ESA declares Congressional policy to be that "all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter."(77) Adding force to this policy, the statute reiterates this duty in section 7(a)(1): "All other Federal agencies shall ... utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species ...."(78) The statute defines conservation or conserve-as follows:

The terms "conserve", "conserving", and "conservation" mean to use

and the use of all methods and procedures which are necessary to

bring any endangered species or threatened species to the point at

which the measures provided pursuant to this chapter are no longer

necessary. Such methods and procedures include, but are not limited

to, all activities associated with scientific resources management

such as research, census, law enforcement, habitat acquisition

and maintenance, propagation, live trapping, and transplantation,

and, in the extraordinary case where population pressures within a

given ecosystem cannot be otherwise relieved, may include regulated

taking.(79) In TVA v. Hill, the Supreme Court underscored this definition by interpreting "conserve" quite literally and citing the clear statutory language, "[L]est there be any ambiguity to the meaning of this statutory directive."(80) Conservation, therefore, is integral to the role of the federal agency in implementing the mandates of the ESA.(81)

Since TVA v. Hill, several courts have recognized the right of federal agencies to affirmatively use their authorities to further the purposes of the ESA. In Carson-Truckee Water Conservancy District v. Clark,(82) plaintiffs sought a declaratory judgment because the Secretary of the Interior allegedly violated the Washoe Project Act(83) in refusing to sell water from the Stampede Dam and Reservoir for municipal and industrial (M & I) use.(84) The irrigation district argued that the Interior Secretary's authority to use water for the purposes of the ESA was defined solely by the section 7(a)(2) jeopardy provisions.(85) Accordingly, the water district argued that the Secretary was authorized only to take actions which avoided "jeopardizing" the continued existence of the species.(86) The court rejected these arguments that the Washoe Act obligated the Secretary to sell project water not needed to avoid jeopardizing the species for M & I purposes.(87) Instead, the court supported the Department of Interior's (DOI) discretionary decision not to sell the water but rather to use it to conserve protected fish.(88) Citing sections 7(a)(1) and 2(c)(1), the court stated:

ESA, on the other hand, directs the Secretary to use programs under

[his] control for conservation purposes where threatened or

endangered species are involved. Following this directive, the Secretary

here decided to conserve the fish and not to sell the project's

water. Given these circumstances, the ESA supports the Secretary's

decision to give priority to the fish until such time as they no longer

need ESA's protection.(89) Thus, the court allowed the agency to assert its duty to conserve when faced with competing claims to resources under its control.

In Sierra Club v. Lyng,(90) the district court, specifically emphasizing the Forest Service's duty to conserve, held that the Forest Service's even-aged management techniques(91) resulted in a taking of the red-cockaded woodpecker and would jeopardize that species within the meaning of section 7(a)(2) of the ESA.(92) Dicta regarding the policy of the ESA and the continuing duties that the statute imposes on federal agencies is woven throughout the opinion. For instance, the court noted that, "[F]ederal agencies are required to carry out programs, with the assistance of the Secretary of Interior, to conserve endangered and threatened species since |... Congress intended to |halt and reverse the trend towards species extinction, whatever the cost.''"(93) The court indicated that this duty applied even where the goals and objectives of timber harvest conflict with protection of the endangered species, stating that, "[e]ndangered species, unlike timber, are not renewable resources."(94) According to the court, the federal duty to seek to conserve is "unequivocal."(95)

Three other significant cases have begun to delineate an agency's duty to conserve. First, in Defenders of Wildlife v. Andrus,(96) the court declared DOI's hunting regulations authorizing twilight shooting of game birds to be arbitrary because the rulemaking did not consider incidental impacts on protected species.(97) The court stated that DOI must not only avoid harming endangered species, but also must use all methods necessary to bring a protected species back from the brink and thus must consider impacts on protected species in it rulemaking even where no jeopardy to the species was anticipated.(98) Similarly, in another hunting case, Sierra Club v. Clark,(99) the court concluded that regulations issued by the FWS to protect threatened species pursuant to section 4(d) must provide for conservation of the threatened species.(100) Thus, a duty to conserve effectively extends to threatened as well as endangered species. Finally, in Pyramid Lake Paiute Tribe of Indians v. Department of the Navy,(101) the court found that the duty to conserve could even be allowed to frustrate an agency's "primary mission."(102) However, the court expressly determined, as other cases have implied, that the agency has discretion in ascertaining how best to fulfill its mandate to conserve.(103) In that case, where conservation methods proposed by the plaintiffs were not necessary to full recovery of the species, and other methods had been initiated, the court upheld the agency's rejection of the proposed method.(104)

In addition to the conservation duties embodied for all federal agencies in sections 2(c)(1) and 7(a)(1), section 7(a)(1) of the ESA expressly directs the Secretaries of Commerce and Interior to review other programs administered by them and to "utilize such programs in furtherance of the purposes of this chapter."(105) This additional conservation provision may confer a heightened responsibility upon these two departments. In Carson-Truckee Water Conservancy Dist. v. Clark,(106) the court stated:

Appellants, relying solely on [sections] 7(a)(2), would have us ignore the

other sections of ESA directly applicable here. ESA [sections] 7(a)(1), moreover,

specifically directs that the Secretary 'shall' use programs

administered by him to further the conservation purposes of ESA.

Those sections, as the district court found, direct that the Secretary

actively pursue a species conservation policy.(107) Similarly, in Defenders of Wildlife v. Andrus, the court focused on this specific provision of [sections] 7(a)(1) and the definition of the term "conservation" in concluding that the FWS must do more than avoid elimination of protected species.(108) The court construed the definition of conserve to determine that under the ESA, FWS "has an affirmative duty to increase the population of protected species."(109)

C. Remedies Under the ESA

As seen above, the ESA policy, listing process, jeopardy determinations, taking prohibitions, and conservation requirements form a strong statutory regime for the protection of species listed under the Act. This regime permits little or no consideration of economics.

To enforce this regime, Congress authorized civil or criminal penalties and injunctive relief for violations of ESA protections. The ESA authorizes the Secretary to impose a civil penalty of up to $25,000 for each violation.(110) Section 11 also subjects persons who knowingly violate provisions of the ESA to criminal penalties of up to $50,000 or imprisonment for one year, or both.(111)

More potent than the penalty provisions, however, are those allowing for injunctive relief. The United States Attorney General is given authority to enjoin any person who is alleged to be in violation of any provision of the statute or its implementing regulations.(112) In addition, private citizens may sue to enjoin any person, including the United States, alleged to be violating the ESA or its implementing regulations.(113) Courts have adopted a more lenient standard for issuing a preliminary injunction for violations of the ESA than for other statutes.(114) Under the traditional standard for the issuance of preliminary injunctive relief, courts consider (1) the likelihood of the plaintiffs succeeding on the merits, (2) the balance of harm that would be caused if the injunction were denied against the harm to defendants if the injunction were issued, and (3) the public interest.(115) Time after time, the courts have found that in cases alleging injury to protected species, prevention of that injury will outweigh any countervailing injury to defendants or to other public interests.(116)

With respect to permanent injunctive relief, the Supreme Court has held that Congress explicitly foreclosed the courts' equitable discretion to decline to issue injunctions where a substantial violation of the ESA otherwise is unavoidable.(117) In TVA, the Supreme Court upheld an appeals court decision requiring an injunction for violation of section 7 of the ESA, thereby halting construction of the Tellico Dam despite expenditures of nearly $100 million.(118)

Not only are the preconditions for granting preliminary injunctive relief less stringent for ESA actions, the nature and scope of injunctive relief may be broad. The following hypothetical may be useful in examining this notion. A mine site is releasing hazardous substances into a stream inhabited by endangered fish. Those releases not only kill and injure endangered fish but also destroy its spawning habitat. Without a section 10 exemption, any injurious effects may constitute violations of the "taking" prohibitions. Under ESA section 9, an interested party or the federal government can seek to enjoin the mining operation from further "taking" of the endangered fish.(119) The alternatives available to eliminate the "taking" may require extensive source control including diversion of streams and collection, storage and treatment of waters from those streams. Regardless of the cost of source controls, the plaintiffs would be entitled to injunctive relief to the extent required to avoid a further unpermitted "taking." This remedy is available against any "person" and therefore applies equally to private as well as public sector entities.

If the facts are changed such that the hazardous wastes emanating from the mine do not result in immediate mortality to the endangered fish, but nevertheless adversely affect the fish's designated critical habitat, the availability of injunctive relief is an open legal question. Federal agencies are required to insure that their actions are not likely to result in destruction or adverse modification of habitat designated as critical.(120) However, there are no express protections afforded critical habitat against actions of private parties. Thus, if the owners of the mine are private citizens, the adverse effects to the habitat must amount to a "taking" before a violation of the ESA occurs. Under current case law, the adverse effects on habitat may need to be sufficiently severe to result in the eventual extinction of the species before a taking will be found.(121) If such a factual determination could be established prospectively, the plaintiffs would be entitled to injunctive relief.

The federal agencies' duty to conserve may provide a supplement to the statutory remedies available for violations of the ESA. As discussed earlier,(122) this duty grants federal agencies the discretionary right to use authorities and programs to further the ESA's purpose. To explore the effect of the duty to conserve, an additional assumption will be incorporated into the mining hypothetical. Assume that the federal government has a cause of action for damages to natural resources pursuant to CERCLA stemming from the release of hazardous substances from the mine.(123) The natural resources cause of action, therefore, arguably constitutes an "authority" which the federal natural resource trustees can assert in support of their duty to conserve pursuant to the ESA. If the agency chose to pursue its duty to conserve by using its authority under CERCLA to require restoration of critical or essential habitat by private parties where no taking was demonstrated, this would effectively expand the scope of relief available under the ESA. The remedy, however, would be sought under CERCLA. Before examining further the interface of the two statutory remedies, however, the next section will explore the natural resource damage authorities, remedies, and any defenses to those remedies.

III. NATURAL RESOURCE DAMAGE PROVISIONS OF CERCLA

The CERCLA natural resource damage provisions permit designated trustees to assess and recover damages for injuries to natural resources caused by a release of hazardous wastes.(124) "Trustees" consist of federal, state, or tribal authorities who own, manage, or control injured natural resources.(125) Damages encompass three discrete components: (1) the cost of restoration, rehabilitation, and/or acquisition of the equivalent of the injured natural resources and the services that those resources provide,(126) (2) the compensable value of the services lost to the public from the time of release until the restorative measure selected returns the resources and services to baseline,(127) and (3) the reasonable costs of assessing the injury.(128) Sums recovered are to be used to "restore, replace, or acquire the equivalent of" the natural resources in addition to reimbursing the trustees for the cost of assessment.(129)

The decision to restore, replace, or acquire the equivalent of natural resources injured is not always simple. It depends on such considerations as the nature and extent of the injuries, costs of alternatives, and technical feasibility. It may also depend on the legal status of the injured natural resource, such as whether that resource is protected under the ESA. This section of the article reviews the restorative options available to the natural resource trustees, discusses the factors identified in the natural resource damage assessment regulations to be considered by the trustees in selecting the appropriate option, and analyzes the "grossly disproportionate" defense which potentially responsible parties (PRPs) might assert against the option selected by the trustees.

A. Introduction: The Public Trust Doctrine and CERCLA

The notion of "government acting as a trustee is not new."(130) States have long brought suits parens patriae or under the common law public trust doctrine in order to protect natural resources.(131) Over the years, state courts expanded the public trust doctrine "beyond application to submerged lands, the foreshore, and navigable waters to encompass injuries to parks, non-navigable water, air, land, wetlands, ecological values, and water quantity as well as quality."(132) Many common law public trust doctrine remedies, however, include only injunctive relief.(133) While injunctive relief halts the injurious activity, it often fails to provide compensation which the public trustee can use to restore the injured resources.

In contrast to these common law doctrines, CERCLA allows trustees to seek monetary damages to remedy injuries to natural resources.(134) Natural resources are defined in the broadest of terms, to mean "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States..., and State or local government. ...."(135) By including land, water, and biota in the definition, in addition to fish and wildlife, the term "natural resource" encompasses the fundamental components of an ecosystem. Inherent in the definition is the recognition that restoration of some natural resources such as salmon, eagles, waterfowl, or deer, may not be attainable without restoration of the habitat and food chain components on which they depend. CERCLA, therefore, includes the critical habitat of protected species as well as the protected species themselves. Accordingly, sums recovered must be used to "restore, replace, or acquire the equivalent of"(136) the injured natural resources, including protected species and their habitats. Consistent with their statutory and common law role as trustee, the goal of natural resource trustees is to return resources and services injured by a hazardous waste release to their baseline condition where possible -- that is, the condition "but for" the release.(137) Accordingly, natural resource trustees are often predisposed towards selecting the option which accomplishes restoration at the site of injury and of the natural resources which have been injured.(138) To accomplish this goal, one author proposed the following preference hierarchy to be considered on a case by case basis:

(a) on-site and in-kind, in which restored resources occur at the injured

site and are physically and biologically the same as those lost;

(b) off-site and in-kind, in which restored resources occur at a site

other than that injured, but similar physical and biological resources

are restored;

(e) on-site and out-of-kind, in which restored resources at the impact

site are physically and biologically different from those lost;

(d) off-site and out-of-kind, in which restored resources are physically

and biologically different from those lost and in a location

other than the impact site, but preferably within the same watershed;

and

(e) acquisition of equivalent existing resources/services under private

ownership, which does not replace lost resources, but reduces

the potential future loss by placing acquired resources under public

management and protection.(139)

The hierarchy of preferences stems from the perception that some natural resources have values which may be difficult to measure. In these cases, it may be problematic to determine how much off-site restoration is required or how much need to be acquired to obtain equivalent resources. Accordingly, on-site, in-kind restoration helps insure that the resources and services are returned to levels prior to the release of hazardous wastes.

Notwithstanding the trustees' probable predilection towards on-site, in-kind restoration, circumstances unique to the nature and location of the release, as well as to the natural resources injured, may prevent selection of this option. Whether on-site, in-kind restoration is selected may depend on factors such as technical feasibility and the cost of restoration. In addition, the choice of the appropriate ameliorative strategy may depend on the legal status of the natural resources injured. Where the resources are listed as endangered or threatened, the ESA adds impetus to select the option which best prevents the slide towards extinction. Where critical habitat is an injured natural resource under CERCLA and is also a limiting factor for the survival of a protected species, that option is on-site, in-kind restoration.

B. Restoration, Rehabilitation, and Acquisition of the Equivalent: Practical Implications

1. Calculation of Damages Based on Restoration Costs

Congress envisioned that guidance for natural resource damage assessments, including the development of restorative measures, would be best left to the appropriate expert agency.(140) Accordingly, CERCLA provides for the development of natural resource damage regulations by the Department of Interior (DOI) to identify the best available procedures to determine damages "including both direct and indirect injury, destruction, or loss and [to] take into consideration factors including, but not limited to, replacement value, use value, and ability of the ecosystem or resource to recover."(141)

In its initial regulations governing natural resource damage assessments,(142) DOI allowed diminution in use value as a measure of damages if the total amount were less than restoration or replacement costs.(143) This "lesser of" rule was challenged in Ohio v. Department of the Interior(144) and found to be contrary to the expressed intent of Congress.(145) Rather, the court found that "CERCLA unambiguously mandates a distinct preference for using restoration cost as the measure of damages, and so precludes a "lesser of rule which totally ignores that preference."(146) Because natural resource damages recovered by a trustee are "for use only to restore, replace, or acquire the equivalent of such natural resources"(147) the court stated:

It would be odd indeed for a Congress so insistent that all damages be spent on restoration to allow a "lesser" measure of damages than the cost of restoration in the majority of cases. Only two possible inferences about congressional intent could explain the anomaly: Either Congress intended trustees to commence restoration projects only to abandon them for lack of funds, or Congress expected taxpayers to pick up the rest of the tab. The first theory is contrary to Congress' intent to effect a "make-whole" remedy of complete restoration, and the second is contrary to a basic purpose of the CERCLA natural resource damage provisions -- that polluters bear the costs of their polluting activities.(148) In accordance with Ohio v. Interior, DOI reissued its final rule on natural resource damage assessments on March 25, 1994, requiring that the trustees calculate damages based on the cost of restoration of the injured resources and the services provided by those resources.(149) The Department uses the term restoration broadly to include rehabilitation, replacement, and/or acquisition of the equivalent resources.(150) In so doing, DOI provides considerable discretion to the trustees in selecting an alternative or combination of alternatives designed to return an injured resource and its services to baseline."(151)

2. Distinctions Between the Restorative Options

While the Department uses the term restoration to include rehabilitation, replacement, and/or acquisition of the equivalent, nevertheless, it also defines those terms separately.(152) Specifically, restoration is defined as "actions undertaken to return an injured resource to its baseline condition, as measured in terms of the injured resource's physical, chemical, or biological properties or the services it previously provided, when such actions are in addition to response actions completed or anticipated . . . .(153) This restoration definition includes the "on-site, in-kind" restoration concept.

By contrast, the regulations define the "replacement" and "acquisition of the equivalent" alternatives interchangeably to mean:

substitution for an injured resource with a resource that provides

the same or substantially similar services, when such substitutions

are in addition to any substitutions made or anticipated as part of

response actions and when such substitutions exceed the level of

response actions determined appropriate to the site pursuant to the

NCP.(154) Pursuant to this definition, replacement or acquisition of the equivalent may involve acquisition of privately held real estate but also includes acquisition of easements and implementation of restocking or revegetation programs.(155) In addition, it can encompass an equivalency concept whereby services which are essentially the same as those provided by the injured natural resource are substituted for the injured resource's services.(156)

The technical distinctions between the definitions offer the trustees reasonable alternatives for ordinary natural resource injury scenarios. Accordingly, where the trustees deem on-site, in-kind restoration infeasible, either for reasons of technical impossibility or extreme cost, the trustees can select replacement or acquisition of the equivalent as the means for returning injured natural resources to baseline conditions. Real choice and flexibility in selecting a restorative strategy may be constrained, however, where the injured resource is extraordinary -- for example, protected under the ESA. Where extinction may be imminent, substitution of like species provides an inadequate remedy. This may also hold true where the injured resources include critical habitat for a protected species. However, the practical effect of restoring critical habitat for protected species rather than selecting another restorative option often is to increase the costs.(157)

3. Costs

The timing of implementation of a restorative strategy significantly affects overall cost. CERCLA's statutory framework generally envisions that restorative measures developed under section 107(f) supplement CERCLA removal or remedial actions.(158) Thus, trustees generally implement restorative measures only after completion of the response phase of CERCLA. CERCLA, however, does not preclude trustees from undertaking a damage assessment and developing a restoration plan if no removal or remedial action is pending.(159)

Such a front-loaded restoration scenario may arise at a site where there are significant injuries to natural resources but competing priorities prevent the Environmental Protection Agency (EPA) or other authorized parties from commencing a timely response action. EPA ranks sites according to criteria(160) and will include a site on the National Priorities List (NPL) if it ranks over an established threshold. While EPA considers ecological factors, human health has traditionally been its primary concern. Consequently, sites with ecological significance that are remote from human populations may rank too low for inclusion on the NPL, precluding EPA from taking a formal response action. Those very sites, however, may support significant natural resources such as a major waterfowl nesting area, prime estuarine habitat for commercial fishery production, or habitat critical for the survival of threatened or endangered species.

Where the natural resource trustees undertake natural resource damage assessment and restoration prior to a response action, both the scope and costs of the restorative option will be substantially greater. Under this scenario, the restorative strategy will inevitably address source control which otherwise would have been addressed through the response action. Accordingly, restorative actions prior to response actions, in all likelihood, will fall within the category of "on-site, in-kind" restoration. As with remedies selected for NPL sites, source control and cleanup through "on-site, in-kind" restoration is likely to be expensive when compared to alternative measures. Accordingly, natural resource trustees seeking "on-site, in-kind" restoration prior to implementation of a removal or remedial action are more vulnerable to arguments that the costs of this restoration are "grossly disproportionate" to the value of the natural resources injured.

C. Grossly Disproportionate as a Defense to CERCLA Recovery

The notion of "grossly disproportionate," as it arises in the context of natural resources, applies to the selection of the appropriate measure of damages for injuries to natural resources. Its origins are not statutory and there is little case law on the topic.(161) Instead, it stems from common law measures of damage to property.(162) It May be more aptly described as a principle which posits that restoration costs are the preferred measure of damages unless those costs are grossly disproportionate to the value of the natural resources injured.(163)

1. Initial Application of "Grossly Disproportionate"

Federal courts first applied the "grossly disproportionate" concept to natural resource damage assessments in a non-CERCLA case. In Pueno Rico v. S.S. Zoe Colocotroni,(164) a tanker hit a reef, spilling oil which coated mangrove trees and sediments. The district court awarded $5.5 million for natural resource damages based on the replacement cost of the organisms estimated to have perished because of the spill.

On appeal, defendants argued that the proper measure of damages was not replacement, but rather the "difference in the commercial or market value of the property before and after the event causing injury."(165) Relying on Puerto Rican law which authorized recovery of the "total value of the damages caused to the environment and/or natural resources,"(166) the First Circuit rejected the "diminution in value" measure. The court reasoned that "total value" provided recovery of damages for injury to natural resources where values cannot always be measured by the market.(167)

The First Circuit then analyzed whether the damages awarded by the district court were appropriate. The court rejected the use of replacement value of the injured organisms as the measure of damages,(168) concluding that the 92 million invertebrate microscopic animals destroyed or damaged were commercially value-less.(169) Furthermore, replacement of these organisms would be futile absent restoration of the oil-impregnated sediments.(170) Restoration(171) was determined to be impractical as well as inordinately expensive,(172) and Puerto Rico had no intention of restoring or purchasing and reintroducing the injured organisms.(173) The court therefore rejected the use of replacement value of the organisms as a method for estimating the quantum of harm to Puerto Rico.(174) The court implied that replacement costs would be appropriate where replacement was a component in a practical plan for restoration.(175)

Finally, the First Circuit concluded that where, as in Zoe, restoration(176) is physically impossible or unreasonably expensive, other measures of damages such as acquisition of comparable lands or rehabilitation may be appropriate.(177) In dicta, the court stated that with any of these measures, the damages awarded must be reasonable and not "grossly disproportionate to the harm caused and the ecological values involved."(178) Thus, the court used the limitation of "grossly disproportionate" according to common law.

2. "Grossly Disproportionate" Under CERCLA -- Ohio v. Interior

Nothing in CERCLA incorporates the notion of "grossly disproportionate." The legislative history of the 1986 amendments(179) includes the only reference to this phrase:

The basic measure of damages under CERCLA, as it is under the

Clean Water Act, is the costs of restoration, replacement or acquisition

of the equivalent of natural resources injured by unlawful releases.

Where, of course, restoration is technically impossible or the

costs thereof are grossly disproportionate to the value of the resources

to society as a whole, then other valuation measures, both

market and nonmarket, must be used.(180)

The court in Ohio v. Interior invoked "grossly disproportionate" in reference to limited scenarios where restoration may not be the most appropriate option under section 107(f) of CERCLA.(181) In invalidating the "lesser of" approach adopted by DOI, the Ohio court concluded:

What is significant about Interior's rule is the point at which it

deems restoration "inefficient." Interior chose to draw the line not

at the point where restoration becomes practically impossible, nor

at the point where the cost of restoration becomes grossly disproportionate

to the use value of the resource, but rather at the point

where restoration cost exceeds -- by any amount, however small -- the

use value of the resource.

While the Ohio court thus found that Congress intended that the costs of restoration be the primary measure of damages to natural resources under CERCLA,(183) it remains unclear at what point the presumption of restoration falls away. The Ohio court suggested that the restoration presumption could be rebutted where restoration is practically impossible or where the cost of restoration is grossly disproportionate to the use value of the resource.

Also unclear is how to establish when restoration costs are grossly disproportionate. In a footnote, the Ohio court stated:

Scholars agree that recovery of full restoration cost in every case,

no matter how large the sum is, is not required by CERCLA. DOI

obviously has some latitude in deciding which measure applies in a

given case: the rule might for instance hinge on the relationship

between restoration cost and use value (e.g., damages are limited to

three-times the amount of use value). . . .(184)

Arguably, this statement establishes a rule that restoration costs in excess of three-times the amount of use value are grossly disproportionate, but the context in which this statement is made would indicate otherwise. First, the statement is proffered by the court as an example in a footnote. Had the court wished to proffer a test, it seems likely that the court would have selected something other than a parenthetical phrase in a footnote and invoked more assertive language. Second, the court explicitly deferred to DOI in establishing an appropriate measure for grossly disproportionate and carefully avoided usurping the role of the expert agency. The court merely required DOI to ensure that the test met the fundamental statutory mandate of CERCLA -- that is, a preference for restoration.

3. Revised DOI Regulation

On March 25, 1994, DOI revised its regulations by issuing a final rule which reconciled its natural resource damage regulations with the Ohio v. Interior decision.(185) The regulations include methods for selecting alternatives: restoration, rehabilitation, and/or acquisition of the equivalent. The regulations also provide factors which the trustees are to determine the appropriate alternative and incorporates the recommendations of the Ohio v. Interior court.(186) The factors are:

(1) Technical feasibility . . . .

(2) The relationship of the expected costs of the proposed actions

to the expected benefits from the restoration, rehabilitation,

replacement, and/or acquisition of equivalent resources.

(3) Cost effectiveness . . . .

(4) The results of any actual or planned response actions.

(5) Potential for additional injury resulting from the proposed actions,

including long-term and indirect impacts, to the injured

resource or other resources.

(6) The natural recovery period . . . .

(7) Ability of the resources to recover with or without alternative

actions.

(8) Potential effects of the action on human health and safety.

(9) Consistency with relevant Federal, State, and tribal policies.

(10) Compliance with applicable Federal, State, and tribal laws.(187)

The factors test specifically addresses the two considerations mentioned in Ohio v. Interior: (1) the point at which restoration becomes practically impossible,(188) and (2) the point at which the cost of restoration becomes grossly disproportionate to the use value of the resources.(189) In addition, the factors approach lets trustees consider other factors, such as the ability of the resource to recover, as well as the results of any response actions.

The factors test also incorporates the recommendations of the S.S. Zoe Colocotroni court, and therefore conforms with common law notions of "grossly disproportionate" as they relate to selection of a natural resource restorative option. Factor one explicitly incorporates technical feasibility, factors six and seven incorporate regeneration, and factor four incorporates mitigation of harm.

During the rule-making, DOI made clear that the factors, when considered together, would encompass the "grossly disproportionate" determination.(190) Discussion of the factors and their relationship to grossly disproportionate was more extensive in the 1991 proposed rule and in comments received during the 1993 reopener period than in the final rule. In the preamble to the proposed rule, DOI addressed the relationship of costs to benefits and stipulated that the consideration of the cost/benefit factor is not to result in a "straight cost/benefit analysis."(191) Rather, DOI directed trustees to examine both the circumstances unique to each assessment and the expected alternative costs.(192) Furthermore, DOI declined to define in quantitative terms what costs might be grossly disproportionate to the value of the services lost.(193) During the reopened comment period on the proposed rule,(194) at least one commentator attempted to persuade DOI that the test for grossly disproportionate should be based on the Ohio v. Interior court's footnote, making costs grossly disproportionate when they are three times the value of the resource.(195) DOI, however, expressly rejected "a simple analysis of strict numeric proportions."(196) It also explicitly refused to assign a rank to any of the factors or limit the flexibility of the trustees to select the most appropriate alternative.

Although the Department may require trustees to consider all listed

factors, it does not intend to mandate compliance with each factor

or dictate the relative weight of each factor. In light of the wide

range of possible natural resource damages cases, the Department

believes that trustee agencies must have flexibility when selecting

an alternative for restoration, rehabilitation, replacement, and/or

acquisition of equivalent resources.(197)

DOI stated its position that any determination of "whether the costs of a particular alternative are grossly disproportionate to lost values should be based on consideration of all listed factors, not just the cost/benefit factor."(198) Further, the Department stated that the cost/benefit factor is designed to "help select among different alternatives, not to determine whether restoration, rehabilitation, replacement, and/or acquisition of equivalent resources itself is warranted."(199)

Although the final rule did not explain in detail how to apply the factors test, DOI comment responses reiterated its position that the "factors, when considered together, protect against the selection of an alternative that poses grossly disproportionate costs."(200) The final rule also reiterated the need for trustee discretion in considering the listed factors in light of the wide range of possible natural resource damage cases.(201)

In addition to factors derived from Zoe and Ohio, DOI included new considerations in the factors approach. Factors nine and ten require the trustees to take into account consistency with applicable federal, state, and tribal policies and laws. Without question, the ESA falls within the category of applicable federal policy and law. Therefore, where injured natural resources are also protected under the ESA, the policy and statutory provisions of the ESA must be addressed when evaluating whether the costs of alternatives are grossly disproportionate to the value of the natural resources injured.

In short, three conclusions are clear from the DOI regulations. First, DOI discourages analysis focused solely on cost/benefit considerations. Second, DOI grants the trustees considerable discretion in assigning weight to each factor in ascertaining gross disproportionate. Third, where injured natural resources include protected species, the ESA's policies and requirements must be accounted for in selecting the appropriate restorative strategy

IV. EFFECT OF THE ESA ON SELECTION OF THE NATURAL RESOURCE DAMAGES "REMEDY"

The analysis thus far reveals that costs may not be considered under most of the provisions of the ESA. This policy reflects Congress' express desire to prevent the slide towards species extinction whatever the cost. Accordingly, where protected species and their critical habitats are injured as a result of a release of hazardous substances, natural resource trustees have the discretionary right to select a restorative measure under CERCLA which ensures against the slide towards extinction. Such measures are likely to include on-site, in-kind restoration. Their cost, however, will not likely be found grossly disproportionate in light of CERCLA, the DOI natural resource damage assessment regulations and the provisions of the ESA.

The Ohio v. Interior court determined that CERCLA creates a statutory presumption in favor of using restoration costs as the measure of damages.(202) Among the restorative alternatives available, trustees generally prefer "on-site, in-kind" restoration, particularly where protected species and/or their habitats are injured. Assuming that the trustees properly apply the factors analysis in accordance with the DOI regulations, the selection of "on-site, in-kind" restoration (or any of the restorative options) is presumed correct.(203) Parties opposing the restorative option selected by the trustees have the burden of overcoming that presumption by demonstrating, for example, that the trustees' choice of a restorative alternative is grossly disproportionate to the value of the injured resource. While CERCLA and case law fail to pinpoint a precise level of cost necessary to overcome the deference, Ohio v. Interior makes clear that the burden is substantial.(204) Natural resource trustees, therefore, enjoy an indeterminate, yet strong, presumption in selecting a given restorative option including "on-site, in-kind" restoration. Where hazardous waste releases injure protected species and their habitats, the strength of this presumption increases.

Where PRPs assert that costs of the trustees restoration plan are grossly disproportionate to the value of the injured resources, which include protected species and critical habitat, trustees can rely on the express policies and directives set forth in the ESA to safeguard their restoration choice. Both the DOI factors analysis and the ESA mandate consideration of ESA protections and policies in selection of the restorative option. Those policies, as explained above, include preservation of listed species, whatever the cost, as well as conservation of protected species. Thus, the presence of injured protected species and critical habitat leads logically to the conclusion that cost considerations will be severely limited, as a matter of statutory requirement and federal policy, in selection of a restorative strategy. Accordingly, "grossly disproportionate" considerations are either inapplicable or will be of little or no importance where protected species or their critical habitat is injured.

A. Provisions of the ESA Render Inapplicable "Grossly Disproportionate" Considerations

Releases of hazardous waste resulting in injury to resources protected under the ESA render the "grossly disproportionate" concept inapplicable. This conclusion is particularly valid where trustees can demonstrate a statutory "taking" and may also be applicable where federal trustees exercise CERCLA natural resource authority to support the ESA's "duty to conserve."

First, where trustees demonstrate a statutory taking, they may seek to enjoin the continuation of that "taking" under the ESA.(205) Courts issue such injunctions without considering the resulting costs.(206) An on-site, in-kind restoration strategy may be the only viable mechanism to cease continuing takings of protected species.(207) For example, where the release of hazardous wastes into a body of water injures (and therefore results in a taking of) an endangered species found within that aquatic habitat, the water must be restored to prevent continuous takings. In such cases, the policy and statutory underpinnings of the ESA, and the availability of injunctive relief, effectively nullify the grossly disproportionate defense to restoration under CERCLA. The availability of ESA injunctive relief to eradicate a "taking" strongly supports selection of the option best able to result in restoration by the trustees.

The mine site example demonstrates this concept.(208) Assume plaintiffs can show hazardous releases from the mine result in a "taking" of protected fish. Under the ESA, plaintiffs would be entitled to an injunction compelling responsible governmental or private parties to prevent the releases to the extent such releases cause the "taking." Implementation of injunctive relief would entail extensive and expensive source control to target levels so as to prevent further "takings." Assume further that EPA has not slated the mine site for a removal or remedial action but that the trustees have a CERCLA cause of action for natural resource damages including injuries to ESA-protected fish sufficient to constitute a "taking." Anything short of an "on-site, in-kind" restoration plan encompassing source control will fail to prevent the "taking" under the ESA. This restoration plan, therefore, is the equivalent to the plan necessary to implement the ESA injunction. Arguments that the "on-site, in-kind" restoration plan costs are grossly disproportionate to the value of the natural resources would be fundamentally inconsistent with the nature and extent of injunctive relief available under the ESA. Accordingly, where hazardous releases result in a "taking," "grossly disproportionate" considerations are rendered inapplicable.

Second, the ESA provisions that impose a duty to conserve may render inapplicable the "grossly disproportionate" considerations even where a taking is not demonstrated. Federal trustees have a duty to conserve protected resources, within the meaning of sections 2(c)(1) and 7(a)(1) of the ESA, using their "authorities" in a manner left to their discretion. The government availed itself of this duty to conserve in Carson-Truckee when it invoked its authority to allocate water in favor of protected species.(209) Similarly, invocation by the federal trustees of their restoration authority under CERCLA constitutes use of such an "authority."

Development and implementation of a restorative alternative which best prevents the slide towards extinction, pursuant to a federal natural resource trustees' CERCLA authority, supports the ESA duty to conserve. Accordingly, federal natural resource trustees have the discretion to use CERCLA authority in support of species conservation.(210) Economic considerations associated with any arguments of "grossly disproportionate" are minimized where a CERCLA restoration plan supports the duty to conserve. The potentially heightened responsibilities under section 7(a)(1) of the ESA for the Departments of Interior and Commerce to conserve listed species make this argument more compelling for those departments.

The mandates to prevent takings and to conserve protected species are clearly articulated by Congress in the ESA. Courts must give effect to the expressed intent of Congress.(211) By contrast, no equivalent statutory expression is given for the notion of "grossly disproportionate," nor is there any meaningful discussion in the legislative history. The "grossly disproportionate" defense evolved from limited case law, historic property damages concepts, and the natural resource damages regulatory process. The ESA policies and provisions, therefore, should take precedence over the grossly disproportionate doctrine where the resources injured include species or their critical habitats protected under the ESA.

B. Provisions of ESA Render "Grossly Disproportionate" Considerations Negligible

Even if the ESA mandates do not completely override "grossly disproportionate" considerations, they require at the very least, that the trustees place heavy weight on other federal laws and policies -- factors nine and ten of the DOI factors analysis. The ESA's protection provisions skew the analysis in favor of the ESA over considerations in factor two -- the relationship of the expected costs of the proposed actions to the expected benefits from the restoration, rehabilitation, replacement, and/or acquisition of equivalent resources -- and factor three -- cost effectiveness. DOI's new rule grants considerable discretion to the trustees in balancing these factors. Federal natural resource trustees may use this discretion to allocate overriding weight to factors nine and ten rendering factors two and three insignificant where ESA-protected species are injured.

The ESA mandates also heighten the actual values attributed to injured species if they are protected under the ESA. These heightened values make it difficult to demonstrate that any restoration cost would be grossly disproportionate.(212) This line of argument stems from the plain language of the statute as well as case law interpreting the statute.(213) As the Supreme Court stated, "[t]he value of this genetic heritage is quite literally incalculable.... The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction whatever the cost."(214) Accordingly, comparison of the restoration cost to some value of the natural resources necessarily will result in a different analysis than for "ordinary" species that are injured from a release of hazardous wastes. Under such an analysis, an argument that the cost of the restoration strategy selected is grossly disproportionate to the protected resources' value likely would fail.(215)

Assuming that the value of a protected species is high, and perhaps incalculable, the burden on parties to demonstrate that the cost of an "on-site, in-kind" restoration plan is grossly disproportionate to the value of the natural resource injured is great. To challenge the costs of the restorative strategy selected by the trustees, the defendants must not only rebut the statutory presumption in favor of restoration discussed in Ohio v. Interior,(216) but also demonstrate that the trustees improperly applied the factors analysis pursuant to the DOI regulations. As we have discussed, the trustees may place great emphasis on factors nine and ten and minimize emphasis on cost-related factors when ESA-protected species have been injured. The net result of the combined burden is to create a climate where it will be very difficult for the defendants to rebut the restorative option selected by the trustees even if that option is "on-site, in-kind" restoration.

V. CONCLUSION

The Endangered Species Act is a powerful species protection statute imposing substantive protection provisions on both the public and private sectors. The ESA's raison d'etre is to stem the tide of species extinction. The obligations commensurate with this lofty goal, therefore, are implemented with little or no regard to cost. The natural resource damage provisions of CERCLA are also powerful environmental provisions. The purpose of those provisions is to "make whole" natural resources injured from releases of hazardous wastes and to compensate the public for losses of those resources from the time of injury until recovery. In contrast to the ESA, however, costs may be taken into account in the implementation of the natural resource provisions. Notwithstanding the preference for "on-site, in-kind" restoration, trustees' selection of the appropriate strategy -- restoration, replacement, or acquisition -- may be affected in part by cost.

When natural resources injured by the release of hazardous substances include species or habitat protected under the ESA, the choice of restorative strategy is affected. The policies and mandates of the ESA form an overlay to the natural resources damages regime and, accordingly, the restorative strategy should support the goals of the ESA. "On-site, in-kind" restoration of habitat critical to an endangered or threatened species often best meets the ESA's goal of species protection, and in these cases, a trustees' preference for "on-site, in-kind" restoration becomes virtually ironclad. Rebuttal arguments focused on the premise that the costs of restoration are grossly disproportionate to the value of the natural resources are either moot or difficult to substantiate where the injured resources are protected under the ESA. In sum, the intersection of the CERCLA natural resource damage and ESA statutory provisions should result in comprehensive cleanup and restoration to prevent species extinction. (1.) ESA [subsections] 1-18, 16 U.S.C. [subsections] 1531-1544 (1988 & Supp. IV 1992). (2.) 42 U.S.C. [subsections] 9601-9675 (1988 & Supp. IV 1992). (3.) Ch. 553, 31 Stat. 187 (1900) (current version at 16 U.S.C. [subsections] 701, 1540, 3371-78 and 18 U.S.C. [sections] 42 (1988 & Supp. 1992)). (4.) E.g., Duck Stamp Act of 1934, 16 U.S.C. [subsections] 718-718j (1988 & Supp. 1992), Migratory Bird Treaty Act of 1918, 16 U.S.C. [subsections] 703-712 (1988 & Supp. 1992). (5.) Endangered Species Preservation Act, Pub. L. No. 89-669, 80 Stat. 926 (1966) (amended and remained the Endangered Species Conservation Act of 1969); Endangered Species Conservation Act, Pub. L. No. 19-205, 83 Stat. 275 (1969). Related wildlife protection laws include the Marine Mammal Protection Act, Pub. L. No. 92-552, 86 Stat. 1027 (1972) (currently codified at 16 U.S.C. [subsections] 1361-1407 (1988 & Supp. 1992)) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora March 3, 1977 (1973), 27 U.S.T. 10871. For a history of wildlife law, see Michael J. Bean, The Evolution of National Wildlife Law (1983), and Davina Kari Kaile, Note, Evolution of Wildlife Legislation in the United States: An Analysis of the Legal Efforts to Protect Endangered Species and the Prospects for the future, 5 Geo. Int'l Envtl. L. Rev. 441 (1993). (6.) ESA [sections] 2(a)(1)-(2), 16 U.S.C. [sections] 1531(a)(1)-(2) (1988). (7.) 119 Cong. Rec. 15,670 (1973) (statement of Sen. Stevens quoting former Sen. Spong). (8.) 437

U.S. 153 (1978). (9.) Id. at 184 (emphasis added). (10.) Id. at 178 (citing H.R. Rep. No. 412, 93d Cong., 1st Sess. 4-5 (1973)) (emphasis added by Supreme Court). (11.) Id. at 195. (12.) Id. at 171. The Court rejected arguments that continued congressional appropriations for the dam after the listing of the snail-darter constituted an implied repeal of the ESA. Id. at 189. See also James C. Kilbourne, The Endangered Species Act Under the Microscope: A Closeup Look from a Litigator's Perspective, 21 Envtl. L 499, 527 (1991). (13.) TVA v. Hill, 437 U.S. 153, 172 (1978). (14.) Id. at 174 (footnotes omitted). (15.) See Seattle Audubon Soc'y v. Espy, 998 F.2d 699 (9th Cir. 1993); Portland Audubon Soc'y v. Babbitt, 998 F.2d 705 (9th Cir. 1993). (16.) 784 F. Supp. 786 (D. Or. 1992). (17.) Id. at 792. (18.) Id. at 791. (19.) Id. at 792. (20.) TVA v. Hill 437 U.S. 153, 185 (1978). (21.) ESA [sections] 4, 16 U.S.C. [sections] 1533 (1988). See also Kilbourne, supra note 12, at 502. (22.) 50 C.F.R. [sections] 424 (1993). (23.) ESA [sections] 4(a)(1), 16 U.S.C. [sections] 1533(a)(1) (1988). (24.) ESA [sections] 4(b)(1)(a), 16 U.S.C. [sections] 1533(b)(1)(a) (1988) (emphasis added). (25.) H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 20 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2861 (emphasis added). (26.) Kilbourne, supra note 12, at 505; Endangered Species Act Amendments of 1982 [sections] 2(a)(2), Pub. L. No. 97-304, 96 Stat. 1411; see 50 C.F.R. [sections] 424.11(b) (1993) (Secretary to make determination "solely on the basis of the best available scientific and commercial information regarding a species' status, without reference to possible economic or other impacts of such determination."). (27.) Karl Gleaves & Katharine Wellman, Economics and the Endangered Species Act, 13 Pub. Land L. Rev. 149, 151 (1992) (listing specific laws and executive orders). (28.) ESA [sections] 7(a)(2), 16 U.S.C. [sections] 1536(a)(2) (1988). (29.) Id. (30.) Id. The requirements of [sections] 7(a)(2) apply broadly. The Supreme Court indicated that the "language admits of no exception," TVA v. Hill, 437 U.S. 153, 173 (1978), and the regulations recognize just two limitations as to the types of action covered. First, the regulations state that "[s]ection 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control." 50 C.F.R. [sections] 402.03 (1993) (emphasis added). Second, the regulations define "action" to include only activities or programs "in the United States or upon the high seas." [sections] 402.02. (31.) See TVA v. Hill 437 U.S. 153, 187-188 (1978). (32.) Id. at 181-82. (33.) TVA. v. Hill, 437 U.S. at 181-182. (34.) The Conference Report provided this explanation for the change:

As currently written, however, the law could be interpreted to

force the Fish and Wildlife Service and the National Marine Fisheries 

Service to issue negative biological opinions whenever the action agency

cannot guarantee with certainty that the agency action will not jeopardize

the continued existence of the listed species or adversely modify its

critical habitat. The amendment will permit the wildlife agencies to

frame their Section 7(b) opinions on the best evidence that is available

or can be developed during consultation. . . .

This language continues to give the benefit of the doubt to the

species, and it would continue to place the burden on the action agency

to demonstrate to the consulting agency that the action will not violate

Section 7(a)(2). H.R. Conf. Rep. No. 697, 96th Cong., 1st Sess. 12 (1978). (35.) Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1048 (1st Cir. 1982) (citations omitted). (36.) ESA [sections] 7(a)(2), 16 U.S.C. [sections] 1536(a)(2) (1988). (37.) ESA [sections] 4(a)(3), (b)(2), 16 U.S.C. [sections] 1533(a)(3), (b)(2) (1988). (38.) ESA [sections] 3(5)(A), 16 U.S.C. [sections] 1532(5)(A)(i) (1988). (39.) ESA [sections] 3(5)(ii), 16 U.S.C. [sections] 1532(5)(A)(ii) (1988). (40.) ESA [sections] 4(b)(2), 16 U.S.C. [sections] 1533(b)(2) (1988). (41.) The practical protections of critical habitat designation appear nearly identical to the protections of the jeopardy requirements. In both cases, agencies ultimately must avoid actions that appreciably reduce or diminish survival or recovery of the species. See 50 C.F.R. [sections] 402.02 (1993). Courts consistently have found jeopardy violations where there is "destruction or adverse modification" to critical habitat. James Salzman, Evolution and Application of Critical Habitat Under the Endangered Species Act, 14 Harv. Envtl. L. Rev. 311, 324 (1990) (citing National Wildlife Federation v. Coleman, 529 F.2d 359 (5th Cir.), cert. denied, 429 U.S. 979 (1976); Sierra Club v. Fyoehlke, 534 F.2d 1289 (8th Cir. 1976); Nebraska v. Rural Electrification Admin., 12 Env't Rep. Cas. (BNA) 1156 (D. Neb. Oct. 2, 1978); TVA v. Hill, 437 U.S. 153 (1978)). Note, however, that the Secretary may revise a critical habitat designation from time-to-time "as appropriate." ESA [sections] 4(a)(3)(B), 16 U.S.C. [sections] 1533(a)(3)(B) (1988). (42.) ESA [sections] 7(a)(2), 16 U.S.C. [sections] 1536(a)(2) (1988); 50 C.F.R. [sections] 402.02 (1 (43.) 50 C.F.R. 402.02 (1993). (44.) See generally TVA v. Hill, 437 U.S. 153, 181-187 (1978) (discussion of mandatory nature of [sections] 7 requirements). (45.) ESA [sections] 9(a)(1)(B)-(C), 16 U.S.C. [sections] 1538(a)(1)(B)-(C) (1988). (46.) Id. (47.) ESA [sections] 4(d), 16 U.S.C. [sections] 1533(d) (1988). The FWS used this authority to extend to threatened species virtually all ESA prohibitions which apply to endangered species. 50 C.F.R. [sections] 17.31(a) (1993). (48.) ESA [sections] g(a)(1), 16 U.S.C. [sections] 1538(a)(1) (1988). While certain takings are exempt if covered by an incidental take statement issued under [sections] 7 or a permit issued under [sections] 10, the circumstances are narrowly prescribed. ESA [sections] 10, 16 U.S.C. [sections] 1539 (1988). In addition, there are special prohibitions that apply to endangered plants. ESA [sections] 9(a)(2), 16 U.S.C. [sections] 1538(a)(2) (1988). (49.) Person includes "an individual, corporation, partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the Federal Government." ESA [sections] 3(13), 16 U.S.C. [sections] 1532(13) (1988). (50.) ESA [sections] 3(19), 16 U.S.C. [sections] 1532(19) (1988). For a good discussion on the evolution of the ESA "takings" doctrine, see Federico Cheever, An Introduction to the Prohibition Against Takings in Section 9 of the Endangered Species Act of 1973: Learning To Live with a Powerful Species Preservation Law, 62 Univ. Colo. L. Rev. 109 (1991). (51.) See Cheever, supra note 50, at 129. (52.) In TVA v. Hill, the Court indirectly addressed the taking question. The Court recognized that the proposed operation of the dam would result in "eradication of an endangered species." 437 U.S. 153, 174 (1978). Because the issue before the Court was whether the building of the dam was an action likely to jeopardize the continued existence of an endangered species or result in the destruction or modification of habitat of such species, the Court did not, however, specifically characterize the inevitable "eradication" as a taking. (53.) 688 F. Supp. 1334 (D. Minn. 1988), aff'd in part, rev'd in part, 882 F.2d 1294 (8th Cir. 1989). (54.) Id. at 1354. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. [subsections]136-136Y (1988). (55.) Defenders of Wildlife v. EPA, 688 F. Supp. at 1342. (56.) Id. at 1354. (57.) Id. at 1342. (58.) 7 U.S.C. [sections] 135a(c)(5)(C)-(D) (1988). (59.) Defenders of Wildlife v. EPA, 882 F.2d 1294, 1299 (8th Cir. 1989). (60.) Defenders of Wildlife v. EPA, 688 F. Supp. 1334, 1354 (D. Minn. 1988), aff'd in part, rev'd in part, 882 F.2d 1294 (8th Cir. 1989) (citations omitted). The appeals court stated that "a pesticide registration that runs against the clear mandates of the ESA will most likely cause an unreasonable adverse effect on the environment under FIFRA." Defenders of Wildlife v. EPA, 882 F.2d 1294, 1299 (8th Cir. 1989). (61.) 853 F.2d 322 (5th Cir. 1988). (62.) Verity, 853 F.2d at 331. (63.) Id. (64.) Id. (65.) Id. (quoting TVA v. Hill, 437 U.S. 153, 179 (1978)). The court, however, refused to rule out the possibility that economic impact might be considered in determining whether a particular regulation promulgated under ESA was arbitrary or capricious. The plaintiffs, however, had failed to demonstrate that the protection afforded by the regulations in the instant case could be achieved through less costly means. Id. (66.) See, eg., United States v. Glenn-Colusa Irrigation District, 788 F. Supp. 1126, 1133 (E.D. Cal. 1992) (court found a "taking" despite a considerable economic impact on defendants where a Sacramento River irrigation operation killed an estimated 400,000 to 10,000,000 juvenile chinook salmon). (67.) ESA [sections] 10(a)(1), 16 U.S.C. [sections] 1539(a)(1) (1988). (68.) Id. (69.) ESA [sections] 10(a)(2)(B), 16 U.S.C. [sections] 1539(a)(2)(B) (1988). (70.) Compare Palila v. Hawaii Dep't of Land and Natural Resources, 471 F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981) [hereinafter Palila I], with Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F.3d 1463 (D.C. Cir. 1994), petition for reh'g en banc docketed, No. 92-5255 (D.C. Cir. April 25, 1994). These decisions are based in part on the FWS regulations which define harm to include significant habitat modification or degradation where such activities actually kill or injure wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Recently, the U.S. Court of Appeals for the District of Columbia Circuit reversed an earlier decision of that court and invalidated the FWS's regulatory definition of harm. (71.) Palila I, 471 F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981); Palila v. Hawaii Dep't of Land and Natural Resources, 649 F. Supp. 1070 (D. Haw. 1986), aff'd, 852 F.2d 1106 (9th Cir. 1988) [hereinafter Palila IA. (72.) Palila I, 471 F. Supp. at 990. (73.) Palila I, 639 F.2d at 497. (74.) Palila II, 649 F. Supp. at 1071-72. (75.) Palila II, 852 F.2d at 1108-10. The circuit court, however, refused to affirm the district court's conclusions that habitat modification that prevents the population from recovering causes injury to the species and is actionable under [sections] 9. Id. at 1110-11. In a similar case, a federal district court in Texas found that clearcutting in a national forest resulted in a taking where it caused a dramatic decline in the population of endangered red cockaded woodpeckers such that the population would become extinct if clearcutting continued. Sierra Club v. Lyng, 694 F. Supp. 1260, 1271-72 (E.D. Tex. 1988), aff'd in part, vacated in part sub nom. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991). (76.) ESA [sections] 2(c)(1), 16 U.S.C. [sections] 1531(c)(1) (1988). (77.) Id. (78.) ESA [sections] 7(a)(1), 16 U.S.C. [sections] 1536(a)(1) (1988) (emphasis added); see also ESA [sections] 4(d), 16 U.S.C. [sections] 1533(d) (regulations promulgated regarding threatened species must provide for their conservation). (79.) ESA [sections] 3(3), 16 U.S.C. [sections] 1532(3) (emphasis added). (80.) TVA v. Hill, 437 U.S. 153, 180 (1978) (citing ESA [sections] 3(2), 16 U.S.C. [sections] 1532(2) (1988)). (81.) The duty to conserve typically is carried out through development of a recovery plan as required under the ESA. ESA [sections] 4(f), 16 U.S.C. [sections] 1533(f) (1988). (82.) 741 F.2d 257 (9th Cir. 1984), cert. denied, 470 U.S. 1083 (1985). (83.) 43 U.S.C. [subsections] 614-614d (1988). (84.) Carson-Truckee Water Conservancy Dist., 741 F.2d at 259 (9th Cir. 1984), cert. denied, 470 U.S. 1083 (1985). (85.) Id. at 261. (86.) Id. (87.) Id. (88.) Id. at 262. (89.) Id. (90.) 694 F. Supp. 1260 (E.D. Tex. 1988), aff'd in part, vacated in part sub nom. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991). (91.) The term "even-aged management" refers to forestry practices such as clear cutting which result in a stand of trees which are all the same age. (92.) Sierra Club v. Lyng, 694 F. Supp. at 1271-72. (93.) Id. at 1270 (citing Carson-Truckee Water Conservancy District v. Clark, 741 F.2d 257, 262 (9th Cir. 1984), cert. denied, 470 U.S. 1083 (1985) (quoting TVA v. Hill, 437 U.S. 153, 184 (1978))) (emphasis added by the Carson-Truckee court). (94.) Sierra Club v. Lyng, 694 F. Supp. at 1269. (95.) Id. (96.) 428 F. Supp. 167 (D.D.C. 1977). (97.) Id. at 170. (98.) Id. See also Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1049 (1982) (agencies continue to be under a substantive mandate to use all methods and procedures which are necessary). (99.) 755 F.2d 608 (8th Cir. 1985). (100.) Id. at 612-613. (101.) 898 F.2d 1410 (9th Cir. 1990). (102.) Id. at 1417-1418 (citing TVA v. Hill, 437 U.S. 153, 181-183 (1978)). (103.) Id. at 1418-1419; Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 170 (D.D.C. 1977) (while effects of hunting must be assessed, it need not necessarily be prohibited if protected species are affected). (104.) Id. (105.) ESA [sections] 7(a)(1), 16 U.S.C. [sections] 1536(a)(1) (1988). (106.) 741 F.2d 257 (9th Cir. 1984), cert. denied, 470 U.S. 1083 (1985). (107.) Id. at 261-2 (emphasis in original) (citations and footnotes omitted). (108.) Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 169 (D.D.C 1977). (109.) Id. at 170. (110.) ESA [sections] 11(a)(1), 16 U.S.C. [sections] 1540(a)(1) (1988). (111.) ESA [sections] 11(b)(1), 16 U.S.C. [sections] 1540(b)(1) (1988). (112.) ESA [sections] 11(e)(6), 16 U.S.C. [sections] 1540(e)(6) (1988). (113.) ESA [sections] 11(g)(1)(A), 16 U.S.C. [sections] 1540(g)(1)(A) (1988). (114.) See, e.g., TVA v. Hill, 437 U.S. 153, 173, 193-95 (1978); Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987). (115.) See Sierra Club v. Marsh, 816 F.2d at 1382-83. (116.) "In Congress's view, projects that jeopardized the continued existence of endangered species threatened incalculable harm: accordingly, it decided that the balance of hardships and the public interest tip heavily in favor of endangered species. We may not use equity's scales to strike a different balance." Id. at 1383 (citations omitted). (117.) TVA v. Hill, 437 U.S. 153, 173, 193-95 (1978). (118.) Id. The Ninth Circuit rejects the traditional balancing test for injunctions where violations of the ESA were deemed substantive. Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987). (119.) ESA [sections] 9(g)(1)(A), (a)(6), 16 U.S.C. [sections] 1540(g)(1)(A), (a)(6) (1988). (120.) ESA [sections] 7(a)(2), 16 U.S.C. [sections] 1536(a)(2) (1988). (121.) See Palia I, 471 F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981); Palila II, 649 F. Supp. 1070 (D. Haw. 1986), aff'd, 852 F.2d 1106 (9th Cir. 1988); contra Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F.3d 1463 (D.C. Cir. 1994), petition for reh'g en banc docketed, No. 92-5255 (D.C. Cir. April 25, 1994). (122.) See supra part II.B.5. (123.) See infra part III. (124.) 42 U.S.C. [sections] 9607(a)(4)(C) (1988) (including natural resource damages in scope of liability). The following CERCLA provisions also apply to natural resource damages: 42 U.S.C. [sections] 9601(16) (1988) (defining "natural resources"); 42 U.S.C. [sections] 9607(f) (1988) (identifies who can sue and how to calculate damages); 42 U.S.C. [sections] 96230) (1988) (settlement negotiations); 42 U.S.C. [sections] 9651(c) (1988) (requiring issuance of regulations governing assessment of natural resource damages). (125.) 42 U.S.C. [sections] 9607(f) (1988). (126.) [sections] 9607(a)(4)(C), (f)(1). (127.) [sections] 9607(a)(4)(C). (128.) Id. (129.) [sections] 9607(f)(1), (a)(4)(C). (130.) Frederick R. Anderson, Natural Resource Damages, Superfund, and the Courts, 16 B.C. Envtl Aff. L. Rev. 405, 413 (1989). (131.) Id. (132.) Id, at 407. See also Cynthia Carlson, Making CERCLA Natural Resource Damage Regulation Work: The Use of the Public Trust Doctrine and Other State Remedies, 18 Envtl. L. Rep. (Envtl. L. Inst.) 10,299, 10,302 (1988). (133.) Anderson, supra note 130, at 413 (citing Faith Halter & Joel T. Thomas, Recovery of Damages by States for Fish and Wildlife Losses Caused by Pollution, 10 Ecology L. Q. 5, 10 (1982)). (134.) 42 U.S.C. [sections] 9607(a)(4)(C), (f)(1) (1988). (135.) 42 U.S.C. [sections] 9601(16) (1988). (136.) 42 U.S.C. [sections] 9607(f)(1) (1988). Technically speaking, the restoration, replacement or acquisition of the equivalent encompasses two different components. The first, and perhaps the more traditional component, consists of activities to accelerate recovery of an injured resource to "baseline" -- the condition or conditions that would have existed had the release of hazardous waste not occurred. This is often referred to as primary restoration. The second component of restoration is to compensate the public for interim lost services. Services are defined as the physical or biological functions performed by the resources including the human uses of those functions. 43 C.F.R. [sections] 11.14(nn). Interim losses are those which occur from the time of injury until the time of recovery. Such compensation may take the form of additional restorative actions. Compensation for interim lost ecological services is more difficult to assess but can be captured by additional biological restorative measures above and beyond primary measures designed to return the natural resources to baseline. See William Conner, The Injury/Restoration Handshake, Proceedings of The Eighth Symposium on Coastal and Ocean Management (July 19-23, 1993). In addition to actual cost of restoration, trustees can recover the cost of damage assessment. 42 U.S.C. [sections] 9607(a)(4)(C) (1988). (137.) 43 C.F.R. 11.14(II) (1993). (138.) Donald A. Wickham et al., Restoration: The Goal of the Oil Pollution Act Natural Resource Damage Actions, 45 Baylor L. Rev. 405, 410 (1993). (139.) Id. (140.) 42 U.S.C. [sections] 9651(c)(2) (1988). (141.) Id. (142.) Natural Resource Damage Assessments, 43 C.F.R. [sections] 11 (1993). (143.) 43 C.F.R. [sections] 11(35)(b)(2) (1993) (vacated in part by Ohio v. Interior). (144.) 880 F.2d 432, reh'g denied, 897 F.2d 1151 (D.C. Cir. 1989). (145.) Id. at 442. (146.) Id. at 444. (147.) 42 U.S.C. [sections] 9607(f)(1) (1988). (148.) Ohio v. Interior, 880 F.2d at 445. (149.) 59 Fed. Reg. 14,262, 14,283 (1994). Damages may also include compensable value of the services lost to the public from the time of release until the restorative option selected returns the injured resources and their services to baseline. (150.) 59 Fed. Reg. 14,262, 14,275 (1994). (151.) Id. (152.) 43 C.F.R. [sections] 11.14(ll), (ii) (1993). (153.) 43 C.F.R [sections] 11.14(ll) (1993). (154.) 43 C.F.R. [sections] 11.14(ii) (1993) (defining "replacement or acquisition of equivalent"); 43 C.F.R. [sections] 11.14(a) (1993) (defining "acquisition of equivalent or replacement"). (155.) Wickham, supra note 138, at 407. (156.) Wickham, supra note 138, at 411-412. A brief example of the equivalency concept can be demonstrated in the following hypothetical: Restoration of PCB contamination of bottom sediments is extremely costly and creates technical feasibility problems. The trustees, therefore, may decide to forego primary restoration based on their consideration of criteria such as DOI's factors approach if the services provided by the injured bottom sediments can be replaced. Such services may include fish production on a square meter basis. Accordingly, the trustees may seek the acquisition or creation of habitat that provides the same amount of per square meter fish production. That "substituted' habitat may be bottom sediments at a different location or it could be wetlands where the trustees know the fish production per square meter. If for example, the wetlands provides higher fish production per square meter, then the total number of square meters of wetlands created or acquired may be less than the total number of square meters of substituted bottom sediments necessary for compensation. (157.) Costs of restoring critical habitat of a endangered fish, for example, may incorporate substantial source control and treatment. These costs could exceed the price of acquiring equivalent critical habitat. (158.) Authority for response actions including removal and remedial actions is found in CERCLA [sections] 104, 42 U.S.C. [sections] 9604 (1998). The President is authorized to remove or arrange for removal of and provide for remedial or other response actions relating to release of hazardous wastes. 42 U.S.C [sections] 9604(a)(1). Authority for this responsibility has been delegated to the EPA. EPA in turn can authorize responsible parties or enter into arrangements with a State or Indian tribe to undertake such actions. 42 U.S.C. [sections] 9604(a)(1),(d). See also the provisions governing federal facilities. 42 U.S.C. [sections] 120. Regulations governing hazardous substance response activities are found in National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. [subsections] 300.400-.440 (1993). One of the most important aspects of these provisions is the development of a Remedial Investigation and Feasibility Study (RI/FS). The RI/FS is designed to assess site conditions and evaluate alternatives to the extent necessary to select a remedy protective of human health and the environment. The heart and soul of the remedy selected is source control which could reduce the toxicity, mobility or volume of the hazardous substances. 40 C.F.R. [subsections] 300.420-.430. (159.) Section 113 addresses this issue tangentially. It states that an action for natural resource damages may not be commenced before the selection of the remedial action where the President is diligently proceeding with a remedial investigation and feasibility study under [sections] 9604(b). 42 U.S.C. [sections] 9613(g)(1) (1988). Therefore, where a federal supervised remedial process has not started, the trustees may bring a natural resources damages action. Id. (160.) See 40 C.F.R. [sections] 300.425(c) (1993). (161.) CERCLA neither mentions nor describes the grossly disproportionate concept. (162.) The common law approach to damages is to bring the victim back to the condition that the victim occupied before any tort was committed. The traditional measure of these damages is diminution of property value. However, the costs of replacement have more recently been recognized as appropriate, provided that such costs are not unreasonable or disproportionate. Restatement (Second) of Torts [sections] 929(1)(a) cmt. b (1979). This latter measure of damages applies to scenarios where the injury is reparable and the plaintiff desires such a remedy. The test for what is unreasonable in the context of the replacement measure varies. Most courts follow the rule that the repair costs cannot exceed the diminution in value of the property. Dan B. Dobbs, Handbook on the Law of Remedies, [sections] 5.1, at 317 n.51 (1993). Some courts, however, have allowed repair costs even where they exceed the diminution in value but limit such costs to the total pre-tort value of the property. Id. [sections] 5. 1, p. 314 n.52 (1993). (163.) The grossly disproportionate concept, therefore, bears some similarity to the prohibition against unreasonable costs for the replacement measure of damages. See Faith Bulger, The Evolution of the "Grossly Disproportionate" Standard in Natural Resource Damage Assessments, 45 Baylor L. Rev. 459 (1993). Because of the range of service provided by resources associated with both direct and passive use of the resources, determining the value of the natural resource can itself be a complex undertaking with no simple answers. Direct use value refers to the value individuals derive from direct use of a natural resource, including consumptive (hunting and fishing) and nonconsumptive uses (such as bird watching). Passive use values refer to the value individuals place on natural resources that are not linked to direct use of the natural resource by the individual, including the value of knowing the natural resource is available for use by family, friends, or the general public; the value derived from protecting the natural resource for its own sake; and the value of knowing that future generations will be able to use the natural resources. Measurement techniques may exist for valuing the services provided by resources, but they may be costly to implement in a given context. 59 Fed. Reg. 1062, 1169 (1994). (164.) 628 F.2d 652 (1st Cir. 1980), cert. denied, 450 U.S. 912 (1981). See Bulger, supra note 163, at 459. (165.) S.S. Zoe Colocotroni, 628 F.2d at 672 (citing Restatement (Seconds) of Torts [sections] 929(1)(a) (1979)). (166.) Id. at 673 (quoting P.R. Laws Ann. tit. 12, [sections] 1131(29)) (emphasis added). (167.) Id. at 674. (168.) Id. at 675-77. The district court relied on the plaintiffs calculations of total numbers of organisms per acre which declined as a result of the spill and on the market prices for the organisms as determined by biological supply laboratories. Accepting the lowest replacement cost per organism at $.06, the court arrived at a damage award of approximately $5.5 million. Puerto Rico v. S.S. Zoe Colocotroni, 456 F. Supp. 1327, 134445 (D.P.R. 1978), aff'd in part, vacated in part, 682 F.2d 652 (1st Cir. 1980), cert. denied, 450 U.S. 912 (1981). (169.) S.S. Zoe Colocotroni, 628 F.2d at 677. (170.) Id. (171.) The court appears to be referring to "on-site, in-kind." (172.) S.S. Zoe Colocotroni, 628 F.2d at 676. (173.) Id. (174.) Id. The court recognized that the remedy would not protect the public interest in a healthy, functioning environment, but rather provide a windfall to the public treasury. Id. (175.) Id. at 677. (176.) Once again, the court appears to be referring to "on-site, in-kind" restoration. (177.) S.S. Zoe Colocotroni, 628 F.2d at 676. (178.) Id.

[W]e think the appropriate primary standard for determining damages in

a case such as this is the cost reasonably to be incurred by the sovereign

. . . to restore or rehabilitate the environment in the affected area

to [its] pre-existing conditions, or as close thereto as is feasible without

grossly disproportionate expenditures. The focus in determining such a

remedy should be on the steps a reasonable and prudent sovereign or

agency would take to mitigate the harm done by the pollution with attention

to such factors as technical feasibility, harmful side effects, compatibility

with or duplication of such regeneration as is naturally to be

expected, and the extent to which efforts beyond a certain point would

become either redundant or disproportionately expensive. Id. at 675 (emphasis added). (179.) Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99499, 100 Stat. 1613. (180.) 132 Cong. Rec. H9,613 (daily ed. Oct. 8, 1986) (statement of Rep. Walter Jones) (emphasis added). (181.) Under the final DOI regulations (1994), DOI no longer includes diminution of use of the injured natural resources as an option for the calculation of damages. Accordingly, the grossly disproportionate considerations discussed by the Ohio court apply to the restorative option selected by the trustees whether it be "on-site, in-kind" restoration, rehabilitation, replacement or acquisition of the equivalent. (182.) Ohio v. Interior, 880 F.2d 432, 443, reh'g denied, 897 F.2d 1151 (D.C. Cir. 1989) (emphasis added). (183.) See supra note 144 and accompanying text. (184.) Ohio v. Interior, 880 F.2d at 443-44 n.7 (citations omitted). (185.) Natural Resource Damage Assessments, 59 Fed. Reg. 14,262 (1994) (to be codified at 43 C.F.R. [sections] 11). DOI issued a proposed rule on April 29, 1991. 56 Fed. Reg. 19,752 (1991). On July 22, 1993, DOI reopened the comment period for the proposed rule. 58 Fed. Reg. 39,328 (1993). (186.) 59 Fed. Reg, 14,285 (1994); 56 Fed. Reg. at 19,770 (1991). (187.) 59 Fed. Reg. 14,262, 14,285 (1994) (to be codified at 43 C.F.R. [sections] 11.82(d)). (188.) Incorporated into factor one, technical feasibility. (189.) Incorporated into all factors, but in particular, factors two and three. (190.) 59 Fed. Reg. 14,271 (1994); 56 Fed. Reg. at 19,758 (1991). (191.) Natural Resource Damage Assessments, 56 Fed. Reg. 19,752, 19,758 (1991) (proposed rulemaking). (192.) 56 Fed. Reg. at 19,758 (1991). (193.) Id. "Instead, the proposed revisions would require that all of the various factors listed be considered by the trustee in selecting the most appropriate alternatives for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources. The factors when considered together, would encompass the |grossly disproportionate' determination suggested by the court." 56 Fed. Reg. 19,758 (1991). (194.) 58 Fed. Reg. 4601 (1993). The period was reopened to obtain comments on the "contingent valuation methodology" (CVM) of calculating lost use values. CVM is used when there are passive-use values. Passive-use values are values independent of their direct use of a particular beach, river, bay or an endangered fish. The value derives from the satisfaction of knowing the existence of the resources. Personal Communication with Carol Jones, Damage Assessment Center, NOAA (May 2, 1994). See also Note, "Ask a Silly Question . . . ": Contingent Valuation of Natural Resource Damages, 105 Harv. L. Rev. 1981 (1992). (195.) 58 Fed. Reg. 39,344 (1993). (196.) Id. (197.) 58 Fed. Reg. 39,328, 39,342 (1993). The Department felt that trustees would be prevented from abusing their discretion when selecting an alternative because of two requirements: (1) trustees must document their rationale for selecting a particular alternative in the Restoration Plan which is subject to public review, and (2) once damages have been recovered, trustees must develop a more detailed restoration plan describing the actual use of those damages. Id. (198.) 58 Fed. Reg. at 39,343 (1993); see also 59 Fed. Reg. 14,271 (1994). (199.) 58 Fed. Reg. 39,343 (1993). (200.) 59 Fed. Reg. 14,271 (1994). (201.) Id. at 14,273. (202.) See supra note 145 and accompanying text. (203.) 42 U.S.C. [sections] 9607(f)(2)(c) (1988). (204.) 880 F.2d 432, 444 452, reh'g denied, 897 F.2d 1151 (D.C. Cir 1989). (205.) ESA [sections] 11(e)(6), 16 U.S.C. [sections] 1540(e)(6) (1988). (206.) See supra part II.C. (207.) Where there are legitimate questions of technical feasibility regarding the restoration plan, the trustees are not obligated to select and, in fact, may be precluded from selecting that option. (208.) See supra note 119 and accompanying text. (209.) Programs and authorities have been broadly interpreted in some cases. In Carson-Truckee, for example, the court upheld DOI's decision to refuse to allocate water to users in preference of species protection. [CITE] Water allocation, therefore, constituted a program or authority. No court, however, has addressed the issue of whether authority to enforce other statutes is contemplated in this ESA provision. The authors present the case supporting the inclusion of such authorities. (210.) See generally discussion of Pyramid Lake, supra note 101 and accompanying text. (211.) 2A Sutherland Statutory Construction [sections] 46.03 (1992). (212.) See supra note 10 and accompanying text. (213.) See supra part III.C. (214.) TVA v. Hill, 437 U.S. 153, 178, 184 (1978). (215.) Perhaps the only relevant considerations in determining whether to implement a restoration plan for protected species injured by releases of hazardous wastes are technical feasibility and likelihood of success. (216.) Ohio v. Interior, 880 F.2d 432, reh'g denied, 897 F.2d 1151 (D.C. Cir. 1989).

Sharon K. Shutler Attorney for the Natinal Oceanic and Atmospheric Administration's (NOAA) Damage Assessment and Restoration Program. J.D. 1990, George Mason University School of Law; M.A. in Marine Affairs 1981, University of Rhode Island; B.A. in Environmental Science 1979, University of Virginia.

Elinor Colbourn Attorney for the U.S. Department of Justice, Environment and Natural Resources Division, Wildlife and Marine Resources Section. J.D. 1988, Yale Law School; B.A. 1984, Wake Forest University.

The views expressed in this article are solely those of the authors and do no constitute the position of NOAA or the Department of Justice.