August 1, 2012, by
Sarah N. Quiter
What is intangible harm to the environment worth? That is the question that will now be asked of juries as a result of the Ninth Circuit Court of Appeals’ recent opinion in United States v. CB&I Constructors, Inc..
In CB&I Constructors, a jury awarded $28.8 million for damages caused by the Copper Fire of 2002, which burned roughly 18,000 acres of forest and destroyed nearly all of the vegetation, harmed wildlife, and impacted scenic views and recreational use. At trial, the United States’ expert witnesses testified about the intangible harm to the environment, but did not quantify the harm. The defendant appealed the jury award as grossly excessive, arguing that intangible noneconomic damages are not compensable in tort suits alleging harm to property. In upholding the award, the Court explained that “California embraces broad theories of tort liability that enable plaintiffs to recover full compensation for all the harms that they suffer. Under California law, the government may recover intangible environmental damages because anything less would not compensate the public for all of the harm caused by the fire.”
Intangible environmental harm is not easily calculated. Therefore, a jury’s subjective evaluation of the damages will continue to drive the dollars behind what’s reasonable compensation for the harm.