Cost Recovery or Contribution? Impacts of Guam on the Timeliness of CERCLA Claims in the Third Circuit and New Jersey
The recently concluded Supreme Court term was an exciting one for environmental lawyers, as the Court in Guam v. United States made a rare foray into interpreting the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), specifically considering the impact of certain settlements on statutes of limitations under CERCLA. As in its 2004 decision in Cooper Industries v. Aviall Services, the Court’s interpretation of CERCLA in Guam differed from the previously prevailing interpretation of most federal circuits.
Most people don’t think of the environmental impact of cannabis, but producing cannabis products can be energy intensive and involve issues relating to water, air quality, and waste management. In New Jersey, where the recently legalized adult-use cannabis industry has been estimated to be worth more than $2 billion annually, cannabis operations will be required to consider and address environmental impacts.
New Jersey has set an ambitious goal to supply 7,500 MW of offshore wind energy to the State by 2030. In order to meet this goal, New Jersey will be required to provide port services to support the development of offshore wind farms. To that end, Governor Murphy included $200 million in the State’s budget to construct an offshore wind port located in Salem County.
New Jersey is extending certain remediation timeframes as a result of the ongoing COVID-19 pandemic, but the availability of an extension is subject to some uncertainty. On February 8th, the New Jersey Department of Environmental Protection (“NJDEP”) published a Notice of Rule Waiver/Modification/Suspension (the “Notice”) extending certain timeframes effective February 1, 2021.
An Overview of New Jersey’s Brownfields Redevelopment Incentive Program
New Jersey is rolling out a new tax incentive program for the redevelopment of underused, contaminated properties, known as “brownfield sites.” In fact, on January 7, 2021, Governor Phil Murphy signed into law the New Jersey Economic Recovery Act of 2020, P.L.2020, c.156 (the “Economic Recovery Act”), a broad piece of legislation that provides support for a variety of programs and policies related to jobs, small businesses, sustainable energy, and many other areas.
Reducing Long-Term Risk and Exposure to Environmental Liabilities
Despite the impact of COVID-19 on other areas of commercial real estate, the industrial sector continues to thrive as the e-commerce industry seeks properties for warehousing and logistics centers, especially in close proximity to New Jersey’s advantageously-placed ports and arterial highways that provide “last mile” delivery capabilities.
If the date May 7, 2021 has significance to you, it may mean that you have a site remediation case in New Jersey. For a large segment of these cases with contamination that pre-dates 1999, the deadline for Remedial Action to be complete is May 2021. (A site remediation case in New Jersey goes through several phases; the Remedial Action phase involves physical activities that remove, reduce, or contain the contamination at issue, such as excavation and off-site disposal or establishment of engineering and institutional controls.)
If a potentially responsible party settles its environmental liability with the State of New Jersey, or another state, might it still face liability in the future for costs incurred by the federal government? According to the United States Court of Appeals for the Third Circuit, the answer may be “yes.”
The extraordinary events of 2020 have disturbed settled expectations in all areas of business and life, and the environmental field is no exception. One seemingly minor consequence of public health driven office closures—the difficulty of fulfilling public records requests while in-person government offices are shuttered—may have significant repercussions for the environmental liability faced by purchasers of real property in New Jersey.
Update: The New Jersey Department of Environmental Protection (the “NJDEP”) published a notice in the New Jersey Register on September 8, 2020 regarding the NJDEP approvals extended by the Permit Extension Act. Anyone seeking to extend one of these approvals must register their approval with the NJDEP by October 8, 2020. Please refer to the notice for the specific approvals eligible for extension. Click here for the notice.