Natural Resource Damages in 2020

January 21, 2020
Maria C. Salvemini, Esq.
MGKF Special Alert - New Jersey Forecast 2020

We can expect the Murphy Administration’s heightened focus on natural resource damages (NRDs) to continue in 2020.  Last year, the New Jersey Department of Environmental Protection (NJDEP) and Attorney General’s Office initiated eight lawsuits seeking NRDs—double the number filed in 2018.  Some of the lawsuits filed in 2019 were not the “traditional” NRD cases practitioners are accustomed to seeing.  Rather, the State expanded its allegations of impacted natural resources in some cases to include air, sediments and soils, forests, and even wetlands.  Similarly, the state expanded the counts it alleged to include abnormally dangerous activity, strict products liability for defective design and failure to warn, as well as tortious interference.  While the State will likely continue to include similar non-traditional allegations in future NRD recovery actions, it is unclear at this time whether it will ultimately be successful.

Decisions on motions challenging the State’s claims will continue to shape how NRD cases are litigated in New Jersey. Two motions to dismiss challenging whether the state can bring a claim for trespass over land it does not own resulted in a split among sister trial courts. See New Jersey Department of Environmental Protection v. Hess, MID-L4579-18 (N.J. Super. Ct. Law Div. Dec. 21, 2018) (granting motion to dismiss common law trespass claim because State lacked exclusive possession over the land); New Jersey Department of Environmental Protection v. Deull Fuel, No. ATL-L-1839-18 (N.J. Super. Ct. Law Div. Aug. 8, 2019) (denying motion to dismiss common law trespass claim because Public Trust Doctrine supersedes exclusivity element of trespass). The State sought interlocutory appeal of the trial court’s decision in Hess, which is pending before the Superior Court, Appellate Division.  It is likely that the appellate court will render its decision in 2020, thereby resolving the split and shaping not only how litigation will proceed in the other pending NRD lawsuits but impacting what claims the State asserts in future NRD cases. It is anticipated that motion practice will continue to shape the law with respect to NRDs in the coming year. 

While 2019 was a big year for the initiation of NRD litigation, efforts to address NRDs through legislation have seemingly stalled. During the New Jersey Senate Environmental and Energy Committee’s meeting on January 24, 2019, the NRD Task Force provided an update on the group’s efforts.  After that update a year ago, the Task Force has not publicly provided any additional updates nor has any legislation been proposed regarding NRDs. 

Although it is unclear whether there will be any developments regarding NRD legislation in 2020, it can be expected that the Murphy Administration will continue to bring lawsuits seeking to recover NRDs in the new year