Ecology Law Currents is the online-only publication of Ecology Law Quarterly, one of the nation's most respected and widely read environmental law journals. Currents features short-form commentary and analysis on timely environmental law and policy issues.


To be notified when the latest Currents articles are published, subscribe to the Currents list serve by emailing here.


Ecology Law Currents accepts submissions on an ongoing basis. For more information, see our guidelines.

« 7th Annual EJ Symposium — Hungry for Justice: Growing an Equitable Food System | Main | Acceptability of the Deschutes Groundwater Mitigation Program »


Feed You can follow this conversation by subscribing to the comment feed for this post.

I might not be an environmentalist but it seems that the author's concern is the environment which the main focus is to clean up the environment. The law sometimes make us a confusion but if it is explained well, it will be appreciated by the people. But I wonder how it will work with CERCLA.

I am not excellent for this. But maybe CERCLA has a valid reasons in imposing such regulations.

Thanks for sharing this article. This is truly a worth to read.

we are having a simiar debate over here in the UK. Our main concern is mineral extraction and it's affect on the environment, and future environment impacts. The bottom line is that when you change one thing something else changes also.

The author’s argument for lack of legislative intent is based on the views of lawmakers who interpreted the statute 15 years after it was originally passed, not the intent of the legislators who actually passed CERCLA. It can be argued that the list of resources protected by CERCLA is not limitative and therefore includes under resources related to those enumerated in the statute, giving rise to the protection of cultural resources. This seems to be a more reasonable approach than the DOI’s unintelligible distinction between cultural resource and cultural service.

Does that fact that NRD assessments can include recovery for “non-use” values, pursuant to 43 C.F.R. § 11.83(c)(1) (2010) (“The compensable value can include the economic value of lost services provided by the injured resource, including both public use and nonuse values") give any support to the fact that DOI may have intended for these values to actually be recoverable?

Statutory drift is no doubt a concern, but it seems unfortunate that CERCLA does not approach a more holistic evaluation of natural resource damages. Original intent is one thing, desirable efficacy is another.

Peterson's article drew my attention to an interesting new issue. Ultimately I agree with Peterson's frustration that there is no meaningful difference to be drawn between cultural resources and cultural services in the context of recovery under CERCLA. I think she is correct that this distinction does not track any economic or practical difference between the loss of a cultural service provided by a natural resource could and the loss of a cultural resource.

However, I wonder if there is some theoretical distinction that the DOI was aiming at, but failed to clearly articulate. One of the examples of a cultural service in the article involves a tribe's loss of a cultural ceremony involving salmon. The underlying idea might be that people living on reservations should be provided with protection that enables them to continue living with and off the land and practicing their culture to the extent that it relies upon natural resources, but that people are not entitled to protection of cultural resources when those resources are of historical cultural significance, but do not continue to play an active role in people's ability to sustain their culture. Still this distinction might not draw a clear line in some cases and would still be subject to Peterson's criticisms.

The author states that "NRD are calculated by adding the cost of restoring the injured resource, compensation for the interim loss of use of the resource from injury to restoration, and the cost of assessing the damages."

While I agree that cultural significance is not sufficient to bring a resource within the scope of CERCLA, it is unclear why damages could not be recovered for loss of cultural use in the same way that damages are awarded for loss of other uses. The statute does not appear to include any language specifically excluding cultural uses from the class of uses for which damages can be awarded.

To me, this seems to be what DOI is getting at with its regulations. Cultural uses are not sufficient to create trusteeship under CERCLA, as the court ruled in Coeur D’Alene. However, if the tribe were able to establish trusteeship through other non-cultural means, perhaps it should have been able to recover for the loss of cultural uses. To use DOI's framework, CERCLA did not recognize the soil and water as "cultural resources" of the tribe. But if the tribe could show that these were natural resources within its trusteeship, nothing in CERCLA bars recognition of "cultural services" derived therefrom.

I am not an expert in this field, but I believe that the author does not adequately explore the possible distinctions between "cultural resources" and "cultural services." Specifically, that while cultural value does not bring a resource within the scope of CERCLA, perhaps cultural uses should be a factor to consider when assessing damages.

The article makes a good case for why CERCLA doesn't allow recovery for cultural resource damages. But I wonder why CERCLA should or should not allow such recovery if it is already allowed under other acts. Maybe there is a good reason (perhaps CERCLA would allow cultural resource damages in more situations), but I would like to hear it.

Peterson presents a thought-provoking article on whether there exists any meaningful difference between the loss of a cultural resource and loss of a cultural service provided by a natural resource. I, for one, fail to see any significant difference.

The author makes a compelling case that NRD are in fact not recoverable under CERCLA.

One area of potential inquiry that was left uncovered, is the legal relevance of DOI's interpretation that cultural services damages are recoverable. The courts' post-Chevron jurisprudence regarding deference to agency interpretations has been somewhat muddled, but one thing that is clear is that such agency interpretations are entitled to deference where the agency is given primary interpretive authority for the statute. And while the ability to engage in notice & comment rule-making is an indicia of such authority, it is not conclusive. (See Auer & Mead.) However, it is not clear that DOI has been granted primary interpretive authority for CERCLA, as other agencies, such as the EPA, have the ability to issue rules interpreting CERCLA. As such, DOI's interpretation, even though issued through notice & comment rulemaking, may not be entitled to any deference by a court that actually decides this issue on the merits. Given the distinct line of jurisprudence used to evaluate agency interpretations, this would have been a valuable addition to the piece.

As a matter of statutory interpretation, it also seems that NRD should not include cultural resources. The statutory language of CERCLA - unlike other statutes cited by the author - does not expressly encompass such harms. While plaintiffs & the agencies might try to advance novel legal arguments as to why these damages should be covered, the author's analysis seems to indicate these arguments will fail.

Increasingly environmental law-creation has stagnated, and instead new law is made only through extension of existing statutory frameworks through litigation or regulation (climate change is a good example of both). However much one might agree with the substantive merits of the goals environmental plaintiffs are pursuing, the strategy of continually advancing and expanding the scope of what were fairly limited statutory schemes, is harming the environmental movement itself. Rather than directing our energies to developing new statutory strategies for dealing with the most pressing environmental problems, or creating an environmental ethic which seeks expressly to advance human interests (and is therefore more broadly politically palatable), the environmental movement is caught in a series of skirmishes on side issues - of cultural resource damages, technical NEPA violations, & field mice protection - which ultimately weaken the movement as a whole.

Perhaps a few more losses in court on these side issues will get us to refocus on where our true interests lie.

The comments to this entry are closed.