A Montana court awarded cleanup costs beyond property value to restore pollution

Evidence

The court refused to cap damages in this manner, reasoning that when plaintiffs have suffered pollution, “[l]imiting those plaintiffs to recovery of diminished property value would do nothing to correct the environmental insult at issue.” Citing the state constitution, the court observed that “Montana’s strong public policy of environmental preservation is furthered by allowing recovery of restoration damages which will be used to remove pollution from the environment.” In short, unlike the welfareeconomic paradigm, which draws no distinction between prevention and compensation or between environmental harms caused and market opportunities forgone, the constitutional culture of the state of Montana appears to be evolving toward a system of foundationalist environmental protection. — Douglas A. Kysar, Regulating from Nowhere, 602

Categorization

• XREF: Restoration damages overriding market-value caps instantiate Kysar’s earlier claim that environmental law preserves ‘moral remainders’ that cost-benefit erases (ch27) — the prevention/compensation distinction made concrete in case law.