Despite the COVID-19 pandemic, New Jersey trial and appellate courts issued several key environmental law decisions in 2020. Recently, my colleagues, Martha Donovan and Margaret Raymond-Flood, and I have had the opportunity to present a seminar, entitled “Navigating the Recent Developments in Environmental Law and Coverage Affecting NJ Practitioners,” for the New Jersey State Bar Association, where my task was to review Appellate and Law Division decisions affecting New Jersey environmental attorneys. For those who did not have a chance to participate in our presentation, a review of the top four environmental law decisions issued by New Jersey state courts in 2020 follows:
1. NJDEP v. Amerada Hess Corporation, et al.
The Appellate Division decision in this case marked the first published appellate-level decision to emerge out of the “new wave” of Natural Resource Damages (“NRD”) cases filed by the state starting in 2018. Here, the state filed a complaint seeking relief under the Spill Act, the Water Pollution Control Act, and New Jersey common law for public nuisance, trespass, and strict liability. The allegations arose out of Hess’s operation of an oil refinery facility in Woodbridge, New Jersey, between 1958 and 2013, when Buckeye Partners acquired the property. The Complaint sought damages and declaratory relief against Hess and the subsequent purchaser of the property, Buckeye Partners.
The trial court dismissed the trespass, public nuisance, and strict liability claims. Notably, the trial court found that Hess’s oil refinery operations did not constitute an “abnormally dangerous activity” sufficient to support a claim for strict liability. Additionally, the trial court found that a trespass action could not exist where the state was not in exclusive control of the subject property and that a public entity could sue only for injunctive relief (not monetary damages) under a claim for public nuisance. Finally, the court noted that regardless of its findings as to trespass, public nuisance, and strict liability, those claims were “subsumed” by the Spill Act claims.
The Appellate Division reversed, in part. Right off the bat, the Appellate Division determined that common law causes of action exist independent of Spill Act Claims and noted that the savings clause of the Spill Act makes clear that the statute’s remedies are in addition to those provided by existing statutory or common law.
Additionally, the Appellate Division found that “based on the extent of the operations of the refinery, its’ proximity to sensitive waterways and environmental areas, and the danger of the pollutants allegedly used in Hess’s operations that were discharged,” the Woodbridge operations were “abnormally dangerous,” and supported a claim for strict liability.
The Appellate Division affirmed the trial court’s findings regarding public nuisance and trespass: the New Jersey Department of Environmental Protection (NJDEP) could not assert a trespass claim for damage to groundwater or surface water because the state lacked an “exclusive” property interest in those resources. Additionally, NJDEP’s damages under the public nuisance claim were limited to injunctive relief.
The Hess decision is notable because it affirms that common law environmental claims are not subsumed by the Spill Act. This has particular importance for the survival of pre-Spill Act claims (placing them on firmer ground) and suggests that NRD cases involving common law claims may be eligible for a jury trial, while cases brought solely under the Spill Act are not. Environmental lawyers should continue to monitor decisions arising out of the recent NRD actions.
2. Delaware Riverkeeper v. NJDEP
This decision, while lengthy, includes a fantastic discussion of the development and applicability of the General Stormwater Permit for Tier A municipal separate storm sewer systems (also known as “MS4,” issued under the New Jersey Pollutant Discharge Elimination System (NJPDES) program). If you need a primer on this relationship between the National Pollutant Discharge Elimination System (NPDES) and NJPDES permitting programs, the interplay between the NJDEP and local municipal sewers, and monitoring requirements for MS4 permit holders, this decision is for you. In it, the Appellate Division reviewed a bevy of challenges to the MS4 permit and found that they lacked merit. Most notably, the Appellate Division found that the NJDEP’s inclusion of “best management practices” (rather than numerical effluent limits) is an acceptable form of effluent monitoring. There is no need for end-of-pipe numerical effluent monitoring under the MS4 program.
Key takeaways from this decision (beyond the excellent summary of the NJPDES program) is that the standard of deference to agency action remains high, and that flexibility for local communities remains a key priority of the MS4 program.
3. Jersey Shore Condemnation Cases
On April 16, 2020, the Appellate Division published three opinions concerning the state’s condemnation of ocean-front property to facilitate public improvement projects following Superstorm Sandy. The cases, New Jersey v. 1 Howe Street Bay Head, LLC, NJDEP v. Midway Condominium Association, and NJDEP v. 10.041 Acres of Land in Point Pleasant all involve New Jersey’s efforts to condemn and fortify beachfront property. In these decisions, the Appellate Division addressed key issues such as:
- What defenses are available in condemnation matters? (Answer: very few)
- What issues are appropriate to be determined by the court or commissioner? (Answer: only questions of fact and law, not the value of the condemned property)
- Is a defendant in a condemnation proceeding entitled to a plenary hearing? (Answer: be sure there is a disputed fact, not just disputed law!)
- And, whose interest is being protected by private conservation efforts?
As sea-level rise continues and climate change intensifies the effects of seasonal storms on New Jersey’s shores, we can expect to see increased condemnation efforts supporting public works projects. These three decisions guide the way for attorneys representing shorefront property owners.
4. Garden State Investment Bank v. Township of Brick
This Appellate Division decision, issued on December 10, 2020, highlights the importance of due diligence for tax sale certificate purchasers. In this matter, the tax sale certificate purchasers did not obtain title searches prior to purchasing the tax certificates, though they did complete “due diligence” (including inspection of the properties and examination of assessment records and a tax map). After paying the overdue taxes and commencing foreclosure proceedings, the purchasers obtained a title search, which showed that the properties were encumbered by a conservation easement. The purchasers filed a complaint for recission in the Chancery Division. The trial court judge found that the purchasers were not entitled to equitable relief, and the Appellate Division affirmed: the existence of the conservation easement was ascertainable, and no unusual circumstances or foul play took place.
This decision makes clear that tax sale certificate purchasers must do their homework prior to purchase and should obtain a title search as part of due diligence. Recission is a limited remedy that is will be available only in unusual circumstances.