Court Finds Navajo Nation’s NRD Recovery Under CERCLA May Be Limited, But Not Its State Law Recovery
The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601, et seq., is best known for setting forth a comprehensive mechanism to cleanup hazardous waste sites under a restoration-based approach and for imposing liability on potentially responsible parties. What is less well known, and what is at issue in the latest decision to come out of litigation surrounding the 2015 Gold King Mine release, is CERCLA’s provisions that allow certain governmental entities who act as environmental trustees to recover money damages known as Natural Resource Damages (“NRDs”) from responsible parties for injuries to natural resources caused, directly or indirectly, from the release of hazardous substances, above and beyond the costs to clean up the contamination. In In re Gold King Mine Release in San Juan Cnty., Colorado, on Aug. 5, 2015, No. 16-CV-931-WJ-LF, 2023 WL 2914718 (D. N.M. Apr. 12, 2023) (“In Re Gold Mine”), the Court held that CERCLA limited the Navajo Nation’s use of NRDs but also that CERCLA did not preempt state tort claims seeking restorative damages.
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