Environmental Damage Claims Under the Federal Tort Claims Act: Examining Nanouk v. United States

The FTCA permits claims for monetary damages against the United States for injury or loss of property caused by the wrongful acts of federal employees when accompanied by a waiver of sovereign immunity. Environmental claims have often been barred due to the discretionary function exception, which preserves immunity for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government."

The Ninth Circuit Court of Appeal recently looked at this exception in Nanouk v. U.S. and found that the exception does not apply to ordinary negligence. The court used a two-step analysis to determine whether the complaint included an actual decision or judgment and, if so, whether that decision was policy based.

Environmental counsel wishing to pursue damages claims should be well versed in this and other recent decisions related to the FTCA and the limitations of sovereign immunity when proceeding against the federal government.

Listen as our authoritative panel discusses the decision and analysis of Nanouk v. U.S. and how this decision can direct best practices in pursuing claims for environmental damages against the federal government.