NJ Claims for Natural Resource Damages Likely to Continue in 2021
Natural resource damages (NRD) appear to remain a priority of the Murphy administration, and consistent with the past two years, we expect to see additional NRD cases filed in the coming year. Because of the State’s heightened focus on environmental justice (EJ) concerns, it is likely that new NRD actions will involve sites in or near EJ communities. Last year, the New Jersey Department of Environmental Protection (NJDEP) and the Attorney General’s Office initiated three new lawsuits seeking to recover NRD, bringing the number of NRD cases filed since the State revitalized its NRD initiative in August 2018 to a total of 15. The State has engaged private counsel in almost all the NRD cases and is expected to continue to do so moving forward.
Moreover, we expect that the State will continue its trend of asserting unconventional claims for relief in new NRD cases. As we projected in our 2020 Forecast, the State expanded its counts in the 2020 lawsuits to include unconventional claims for relief such as strict liability and negligence. Further, the State has even amended its Complaints in earlier filed NRD actions to add these counts. In addition, recent Complaints have sought NRD for alleged per- and polyfluoroalkyl substances (“PFAS”) contamination, which is not surprising given NJDEP’s adoption of maximum contaminant levels and groundwater remediation standards for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) that became effective in June 2020 and the 2018 adoption of such standards for perfluorononanoic acid (PFNA).
We also anticipate that motion practice in the pending NRD cases will further shape the State’s ability to bring and litigate NRD recovery actions. In April 2020, the New Jersey Appellate Division released a highly anticipated decision in which the court affirmed the dismissal of the State’s common law trespass claim for lack of exclusive possession over the subject property. New Jersey Department of Environmental Protection v. Hess, A-2893-18T2 (N.J. Super. App. Div. Apr. 7, 2020). A more in-depth discussion of the Hess opinion can be found here. With numerous dispositive motions challenging the State’s common law and statutory claims for relief as well as its right to a jury trial pending in both state and federal courts, it is likely that there will be trial—and maybe even appellate—decisions this year which will further define the State’s ability to bring and litigate cases seeking NRD.
Whether NJDEP will promulgate any regulations for the calculation of NRD in 2021 also remains unclear. Although last year NJDEP officials indicated that the agency is working on guidance related to NRD, there has been little information regarding what that guidance may concern and/or when it will be made available to the regulated community. The agency’s failure to promulgate such regulations has drawn sharp criticism from New Jersey courts in the past and, given the continuing lack of properly promulgated criteria for calculating NRD, seems almost certain to leave the State open to further criticism by the courts concerning its approach to NRD recovery.