THE INTRUSION OF CRIMINAL LAW ON THE NRDA PROCESS

摘要

A primary goal of the Oil Pollution Act of 1990(OPA 90) is to make the environment and public whole forinjuries to natural resources that result from the discharge of oil.OPA 90 authorizes state and federal natural resource agencies toserve as trustees for natural resources and provides them with theresponsibility, through a natural resource damage assessment(NRDA) process, to ensure that injured natural resources arerestored. The National Oceanic and Atmospheric Administration (NOAA)promulgated damage assessment regulations, and in an attemptto correct deficiencies and meet OPA 90 mandates, developed aframework intended to promote expeditious restoration. To lessenthe common litigious nature of the NRDA process, the regulationsencourage active participation by a responsible party in a coop-erative assessment of damages. Natural resource trustee agenciesalso have authority to enforce criminal aspects of other statutesfor impacts resulting from an oil spill. However, when agenciesinitiate a criminal investigation under these statutes for an oilspill, the goals mandated in OPA 90 and set forth in the NOAAregulations can be substantially undermined. There are potential solutions that could, at least partially,resolve this dilemma for the responsible party to a point whereparticipation in the NRDA process would not unduly prejudice itsposition in a criminal investigation. Such solutions might includewritten agreements as to communications and transactional useof immunity agreements, stay of proceedings, and protectiveorders, which singly, or in combination, could prove invaluablein preserving a progressive NRDA process, fully inclusive of theresponsible party.