States are going to have a greater role in setting energy policy under the United States Environmental Protection Agency’s (“EPA”) proposed Affordable Clean Energy (“ACE”) Rule. EPA proposed the ACE Rule to replace the Obama Administration’s Clean Power Plan (“CPP”), which never took effect due to legal challenges. Unlike the CPP, where the EPA set standards and requirements for state plans, the newly proposed ACE Rule tasks the States with a larger role in pursuing clean power and addressing pollution from existing coal power plants, invoking mixed emotions from various sectors of the community.
Contaminated site remediation projects in New Jersey are governed by an assemblage of rules and regulations that implement the State’s environmental statutes. Just last week, the New Jersey Department of Environmental Protection (“NJDEP”) adopted amendments to a number of these rules. While the NJDEP has characterized the amendments as changes that will clarify the rules and further streamline the implementation of the site remediation program, there are a number of noteworthy revisions that modify existing remediation obligations and procedures.
Touting it as the “largest single-day environmental enforcement action in New Jersey in at least a decade,” the State yesterday filed six lawsuits seeking to recover cleanup costs, three of which also seek recovery of natural resource damages (“NRD”). The dramatic announcement yesterday left no doubt that the Murphy Administration’s approach to environmental enforcement will be markedly different than the essentially non-existent enforcement under the Christie Administration.
New case law suggests that environmental policies may be needed to fill widening gaps in the primary insurance held by most businesses (i.e., Commercial General Liability “CGL” policies). CGL policies typically contain a “pollution exclusion” that excludes coverage for losses relating to “pollutants,” and the definition of pollutants in standard CGL policies is extremely broad. In fact, a federal court of appeals recently held that storm water runoff qualifies as a pollutant, and, thus, no coverage exists under a CGL policy for damage relating to such runoff.
The litigation between the State of New Jersey and ExxonMobil over natural resource damages allegedly caused by former Exxon oil refineries in Bayonne and Linden appears to have come to a close earlier this year when the New Jersey Supreme Court rejected petitions filed by third parties challenging the State’s settlement of its claims against Exxon.
Over the past few years, a number of state agencies have begun to take steps to address emerging contaminants like per- and -polyfluororalkyl substances (“PFAS”) and 1,4 dioxane. Just this past January, we reported on our blog that the New Jersey Department of Environmental Protection (“NJDEP”) set the most stringent limits in the country for perfluorooctanoic acid (“PFOA”) and perfluorononanoic acid (“PFNA”) in drinking water and adopted a regulation that added PFNA to the List of Hazardous Substances under the New Jersey Spill Compensation and Control Act (See our January 30, 2018 Blog Article – NJDEP Takes Further Step In Regulating Emerging Contaminants).
Earlier this year, New Jersey passed legislation (Assembly Bill 1954) that changed the availability of certain funding to public and private entities under the Hazardous Discharge Site Remediation Fund (“HDSRF” or the “Fund”). The HDSRF program provides grants and loans to public entities and certain private entities that require financial assistance to investigate and remediate suspected or known contaminated sites.
New Jersey’s environmental and energy policies are headed in a precise, new direction under Governor Phil Murphy. In fact, following his election in November, Governor Murphy set a series of policy goals, which include: (1) enhancing usage of clean energy; (2) combating climate change; (3) addressing environmental hazards that disproportionately impact low-income communities and communities of color; and (4) safeguarding New Jersey’s natural resources.
During the Obama Administration, the United States Environmental Protection Agency (“USEPA”) revised the Clean Water Act definition of Waters of the United States (“WOTUS Rule”) to broaden (to some overly so) federal protection of certain waterbodies. The WOTUS Rule sparked numerous lawsuits in a number of federal District Courts and Courts of Appeals.
In November 2017, the New Jersey Department of Environmental Protection (“NJDEP”) set the lowest limits in the country for perfluorooctanoic acid (“PFOA”) and perfluorononanoic acid (“PFNA”) in drinking water (See our November 8, 2017 Blog Article – NJDEP to Adopt Strict Standards for PFOA and PFNA in Drinking Water).
