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The Role of Ecosystem Services in USA Natural Resource Liability Litigation

March 13, 2018 |

This paper was originally published in Ecosystem Services.


  • The U.S. restoration-based damage measure has led to successful case resolutions.
  • Damages include cost of primary and compensatory restoration to make public whole.
  • Habitat equivalency analysis predominates to scale ecological services restoration.
  • Habitat equivalency analysis presumes equivalency of ecological services at injury and restoration sites.
  • Valuation approaches available, but rarely used for ecological services.

Abstract: This paper examines how the United States has valued harm to public resources in natural resource liability laws and practice, an early legal application of the ecosystem-services conceptual framework. Our primary focus is on valuing harm to the difficult-to-value resources and ecological services that provide indirect or passive human uses, for which revealed preference valuation methods (based on observable behavior) are not applicable. We concentrate on the past 25 years of U.S. experience with the innovative, restoration-based framework established in regulations implementing the Oil Pollution Act of 1990. By reframing the damage claims as the cost of both “primary” restoration (to promote recovery of injured resources) and “compensatory” restoration (to account for interim losses pending recovery), the regulations deflected some of the controversy surrounding valuation methods.

The restoration-based compensation framework provides two basic approaches for calculating the scale of compensatory restoration projects. A service-to-service approach, which does not require valuation, applies to projects that provide resources and ecosystem services of the same type, quality, and comparable value as those harmed. A valuation approach, intended for a broader range of applications, relies on survey-based methods.

For injuries to ecological services, we found trustees have relied almost exclusively on habitat equivalency analysis (HEA), a service-to-service approach, adapting its use to applications where restoration projects make resource and/or ecosystem services substitutions. We explore how the trustees address the challenge of characterizing the equivalency between injury and restoration resources and ecosystem services through the choice of restoration projects and the choice of the ecosystem service metrics. Widely used in the U.S. and EU, the restoration-based measure of damages and the associated HEA methodology may be useful for other countries…”

Read on and access the full paper at: Ecosystem Services.

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