At an October 25th press conference, New Jersey Attorney General Gurbir Grewal and New Jersey Department of Environmental Protection (“NJDEP”) Commissioner Catherine McCabe announced the filing of six new lawsuits that, in their words, “target polluters in minority and lower-income communities across New Jersey.” These six cases—relating to contaminated properties in Newark, Camden, Kearney, East Orange, and Trenton, the site of two cases—are the second salvo in NJDEP’s ongoing program to target its enforcement in lower-income areas. Last December, NJDEP’s filing of eight similar lawsuits likewise was accompanied by a press conference publicizing the litigation. Governor Murphy has been clear that he prioritizes environmental justice, that is, reducing environmental harms that disproportionately are borne by people in lower-income communities, so we should expect NJDEP to file more enforcement lawsuits like these in the coming years.
A survey of the fourteen cases NJDEP has filed since last December reveals common threads guiding the agency’s enforcement.
- Geography. Nine out of the fourteen cases involve sites located in just three cities: Newark, Camden, and Trenton. Owners or operators of contaminated sites in those three cities should be aware that they may be under increasing scrutiny from NJDEP. However, NJDEP also has targeted properties located in municipalities that generally would not be considered urban. In its first round of cases, NJDEP sought to compel remediation of sites located in Phillipsburg and Flemington. Though not located in big cities, each of these sites is located in a densely developed “downtown” area in which nearby buildings potentially are subject to vapor intrusion.
- Sites Stuck in the Mud? Almost uniformly, NJDEP has targeted egregious cases—sites where contamination has been known of for a decade or more without being remediated, or vacant properties in urban areas that allegedly have been used for illegal solid waste dumping. Prior enforcement efforts through administrative orders and directives have proven unsuccessful in many of these cases. NJDEP’s laudable goal to speed up remediation of languishing contaminated sites may be difficult to achieve in practice, however. Remediation may have stalled not because of the defendants’ desire to avoid their legal obligations, but because of a lack of funds. For example, in a case filed this October, NJDEP alleged that the former operator investigated contamination for ten years and submitted a remedial action work plan, but ultimately informed NJDEP that it could not afford the remediation. In another case, the defendants already have defaulted. Finding private funds to complete these cleanups or to reimburse NJDEP for public money already spent may be like getting blood from the proverbial stone.
- Broad Net of Liability. NJDEP also is casting a wide net, bringing claims against people and entities with any tenuous connection to the contamination. Though perhaps this strategy is necessary given the noted prevalence of impecunious or judgment-proof defendants, it can backfire for NJDEP. As we previously have described in our November 14th blog post, the court dismissed NJDEP’s Spill Act claim against an individual who owned a contaminated property for merely a month after the contamination already had occurred. Despite NJDEP’s broad powers, the courts may side with defendants that push back against NJDEP overreach in these cases where warranted.
In conclusion, it should be noted that NJDEP is not advancing a novel legal theory of environmental justice in these cases. These are straightforward environmental enforcement cases, in which NJDEP is using its well established authority to compel recalcitrant parties to remediate contaminated sites. NJDEP is not breaking new ground on environmental justice, but rather is reallocating limited enforcement resources to address longstanding problems in underserved communities. Parties who may be responsible for contaminated sites in lower-income communities should now be on notice that NJDEP is watching.