Murphy Attorney General’s Office Evades Questions On Natural Resource Damage Lawsuits

NJ Courts Have Rejected NRD Lawsuits Due Lack of Legislative And Regulatory Standards

Current Lawsuits Vulnerable To Repeat Exxon Pennies On The Dollar Settlements

[Update below – AG’s Press Office responds]

Former Murphy Attorney General Grewal was aggressive right out of the gate in issuing an unprecedented flurry of joint press releases with DEP touting his lawsuits against corporate polluters seeking compensation for natural resource damages (e.g. see this and this and this) AG Grewal was even more PR promotional than former DEP Commissioner Brad Campbell!

But oops, Campbell’s DEP’s NRD “sweetheart deal” neglected this:

• Dupont deal gave state more tainted soil

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

Will Murphy’s AG/DEP correct Campbell’s disgraceful Dupont deal?

• Murphy DEP Finally Re-Opens Corrupt Dupont Pompton Lakes Natural Resource Damage Settlement

But let’s get back to our topic today. Here’s the most recent (AG/DEP NRD press release)

 “As we said at the outset of the Murphy Administration, the days of free passes and soft landings for polluters in New Jersey are over,” said Attorney General Grewal. “The corporations we’re suing knew full well the potential harms they were inflicting on our environment, but chose to forge ahead anyway. When companies disregard the laws meant to protect our environment, they can expect to pay.”

Those press releases generated highly favorable media headlines and praise from environmental groups – exactly what the Governor, the AG and the DEP Commissioner wanted:

• NJ Seeks Compensation for Natural-Resource Damages with Two More Lawsuits

But when questioned about the status of those lawsuits and asked to respond to concerns about whether they were legally vulnerable given prior NJ Court decisions and the failure of DEP to adopt NRD regulations that courts have said are required and that DEP is legally obligated to adopt, the AG’s press office went radio silent.

[Full disclosure: I am a skeptic of not only the NRD cases, but other legal theories and litigation strategies Grewal has pursued.)

Is the Murphy Administration about to cut the same kind of pennies on the dollar settlements with corporate polluters that the Christie administration did with Exxon in response to DEP’s $8.9 billion lawsuit?

DEP has failed to provide a methodology and standards for monetizing NRD injuries. That makes it impossible to understand what the value of the NRD damages are and how much the AG and DEP recover (e.g. in the Exxon case, DEP claimed $8.9 billion in NRD injuries, but recovered just $225 million, less than 3 pennies on the dollar, see:

• Why Were We Blindsided By The Exxon NRD Deal?

Without any calculated NRD method or NRD injury Report (like DEP prepared in the Exxon case and in many prior cases) how can we know how the current Murphy NRD lawsuits are doing in holding polluters accountable for the natural resource damages that they cause?

I guess it’s a lot easier to issue press releases and spin NJ’s lame press corps than it is to respond to serious legal and policy questions and be held accountable to your own rhetoric.

The status of AG lawsuits is public information. Why would the AG’s Office not respond as aggressively in providing that information as they do in issuing self congratulatory press releases?

So, in hope that there are real investigative journalists out there willing to hold the AG accountable to his over the top press release rhetoric, here are the questions I recently posed to Lee Moore at the AG’s Press Office. They went unanswered (and after briefing his secretary for 15 minutes, there was not even a return phone call):

1) What is the universe and status of NRD cases filed to date? Dupont, Exxon, PFOA, et al

2) Any there legal concern with failure of Senator Smith’s NRD Taskforce and lack of legislative standards?

3) Former DEP Commissioner Campbell entered into a Judicial Settlement agreement in which the DAG at the time pledged that DEP would adopt NRD regulations, but DEP has since failed to do so. Several NJ Court decisions have rejected DEP NRD lawsuits based on the failure of DEP to promulgate regulations. What is your take on that? Does the lack of DEP NRD regulations undermine your litigation?

4) how do you respond to criticism that courts reject NRD claims in the absence of promulgated DEP NRD regulations?

5) why were there no appeals of prior court defeats of NRD claims?

6) how do you respond to criticism in the NJ Law Journal article on the Christie Exxon settlement that the State has a weak legal hand and is forced to settle (or accept voluntary agreements) for pennies on the dollar?

Appreciate your response. Don’t hesitate to call with questions.

Bill Wolfe

 [Update – 6:25 pm MST (8:25 pm EST) – In a “no comment” response, the NJ’a AG’s Press Office responded, as of 2:27 pm EST. I just opened the email now (no connection in Sonoran desert). They provided basic case status information (which I can’t access), but failed to respond to my legal and policy questions, as follows:

Bill:   Greetings. Attached is a listing of our environmental lawsuits since 2018 that contain NRD claims. As you will see,  the right hand column of the chart contains the official captioned names of the cases, as well as the court-assigned docket numbers for each case. This information will enable you to follow-up on individual cases through the public docket. (The left hand column contains strictly unofficial, working names for the individual cases.)

We have no comment regarding the other questions you’ve asked.

Best regards,

Leland Moore

NJ OAG communications