Environmental Justice Initiatives Soon May Impact Permitting and Other Regulatory Actions

Since taking office last year, New Jersey Governor Phil Murphy has sought to place concerns about environmental justice in the foreground of New Jersey’s regulatory decision-making process.  Advocates and policymakers long have maintained that locally undesirable or polluting land uses disproportionately are located in low-income, typically urban communities that lack political influence or sufficient resources to protect their interests. 

Storm(y) Waters on the Horizon: Changes Coming to Regulation of Stormwater in New Jersey

Regulation of stormwater in New Jersey is undergoing a shakeup that may have significant consequences for redevelopers and property owners.  In fact, New Jersey recently enacted legislation that allows municipalities to create stormwater utilities.  This legislation, which has been called a “rain tax,” authorizes these utilities to impose fees and take other actions to control stormwater.  The New Jersey Department of Environmental Protection also recently proposed changes to the regulations governing stormwater management in connection with certain construction projects. 

New Jersey Takes Aim at PFAS and Chemical Manufacturers

In a move that has assuredly grabbed the attention of the regulated community, the New Jersey Department of Environmental Protection (“NJDEP”) recently commenced two major initiatives in an effort to further address the emerging, hot-button issue of poly- and perfluoroalkyl substances (“PFAS”) contamination in the state.  

New York Expands Requirement to Investigate Emerging Contaminants

New York began last year to require remediating parties to investigate whether groundwater at their sites was contaminated with the emerging contaminants 1,4-dioxane and PFAS (i.e., per- and polyfluoroalkyl substances).  (See our May 29, 2018 Blog Article – NYSDEC Requiring Site Owners to Investigate Emerging Contaminants.)  Now, the New York State Department of Environmental Conservation is broadening this requirement by mandating investigation of the presence of these contaminants in all environmental media, not just groundwater. 

Recent Third Circuit Decisions Help Define Contours of CERCLA Liability

The United States Court of Appeals for the Third Circuit recently handed down two noteworthy decisions on environmental liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).  One involves the appropriate methodology for allocation of cleanup costs between two responsible parties based on equitable factors; the other involves whether a new owner of contaminated property is responsible for governmental response costs incurred prior to its purchase of the relevant property.  Both set new precedent that should be of interest to the regulated community.

WOTUS Proposal Would Reduce Waters Subject to Federal Regulation

The newly proposed definition of the Waters of the United States (“WOTUS”) may clarify what water features are federally regulated under the Clean Water Act, but, if adopted, it is sure to spark further litigation.  On December 11, 2018, the United States Environmental Protection Agency (“USEPA”) and the Army Corps of Engineers (“Army Corps”) proposed the much-anticipated revised definition of WOTUS, which establishes the jurisdictional reach of the Clean Water Act.  

NJ Appellate Division Finds NJDEP Policy and Guidance Unenforceable

New Jersey courts will prevent regulators from enforcing requirements through guidance that have not been formally adopted through appropriate rulemaking.  Just recently, the Appellate Division of the New Jersey Superior Court determined that the NJDEP wrongfully imposed penalties on a radon testing company for failing to comply with certain agency policies and guidance that had not been promulgated through the rulemaking process prescribed by the Administrative Procedure Act (“APA”).

Lessons from NJDEP’s Recent Enforcement Actions

The State of New Jersey ratcheted up its environmental enforcement activities earlier this year with the filing of six lawsuits seeking to recover environmental damages, as we previously reported in There Is A New Sheriff In Town – State Files Six New Environmental Enforcement Cases.  While we wait for these lawsuits to move forward, one question remains: If “there is a lesson in everything,” as a wise man once said, what lessons are to be learned from the filing of these suits? 

Past NRD Cases Highlight Vulnerability of Future Claims

The New Jersey Department of Environmental Protection (“NJDEP”) filed three lawsuits seeking Natural Resource Damages (“NRD”) in August 2018.  In these lawsuits, which are NJDEP’s first in eight years, NJDEP is seeking damages for injury to groundwater, sediments, surface water, wetlands and biota.  Given the amount of time that has passed since the last NRD case was filed by the State, a review of where we left off may be helpful to understand the hurdles NJDEP will continue to face with respect to NRD and the defenses that potentially responsible parties may assert when presented with an NRD claim.