Matthew J. Koes


It is indisputable that shellfish contamination creates a negative impact on the economy, poses a serious risk to human health, and has a harmful effect on the fragile coastal ecosystems. However, the litigation designed to redress the harmful effects of shellfish contamination produces uncounted difficulties. Although a general public policy of preventing pollution has led Congress to enact and revise CERCLA, the application of such a statute has proven to be uncertain due to the enormous amount of discretion given to the trial courts in deciding admissibility of scientific evidence and testimony of experts. A CERLA natural resource damage action designed to remedy shellfish contamination is the ultimate example of the awkward partnership of law and science, requiring a fact finder to base a legal conclusion on scientific uncertainties. Unfortunately, a causation standard that requires the natural resource trustee to provide a causal connection between the release and the injuries to natural resources, instead of the strict liability standard used in remediation actions, hinders the ultimate objective of returning a clean environment to the public.



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