NJ District Court Holds that Companies Cannot Knock Out Claim for Primary Restoration Natural Resource Damages under the Spill Act
In a decision issued earlier this month, Judge Wolfson of the District of New Jersey held that the New Jersey Department of Environmental Protection (“NJDEP”) could recover primary restoration natural resource damages from a responsible party as long as NJDEP demonstrated by a preponderance of the evidence that its proposed primary restoration plan is “practicable.” New Jersey Dep’t of Envtl. Prot. v. Amerada Hess Corp., No. 15-6468 (FLW)(LHG) (D.N.J. Nov. 1, 2017). In so holding, Judge Wolfson rejected an argument by the defendants, including Exxon Mobil Corporation and ExxonMobil Oil Corporation (“Defendants”), that primary restoration natural resource damages were available only upon a showing of “an injury or threat to human health, flora, or fauna.” The court found that such a standard, which was derived by Defendants from unpublished, non-controlling authority from New Jersey state courts, was inconsistent with the plain language of the Spill Act that speaks directly in terms of “practicability.”
