Courts Are Quietly Narrowing And Weakening NJ’s “Public Trust Doctrine” And DEP’s Authority To Protect Groundwater And Collect Natural Resource Damage Compensation
Will Dupont Wiggle Off The Hook For Millions In Damage From Toxic Pollution?
The Legislature Must Step Up And Adopt Standards To Strengthen Critical NJ Laws
The Public Must No Longer Be Shut Out Of Critical Decisions That Affect Their Lives
Recent US Supreme Court decisions to abolish a woman’s right to choose and to severely limit EPA’s power to regulate greenhouse gas emissions have jolted public awareness of the Court’s power to control outcomes on critical issues, with no regard for democratic involvement.
But the anti-democratic abuse of power by the courts – which are an inherently non-democratic institution – is not limited to the right wing US Supreme Court.
NJ State and federal Courts are chipping away at and are narrowing the scope of NJ’s “Public Trust Doctrine”, “trespass” and “nuisance” laws, as well as DEP’s ability to protect groundwater and assure public compensation for and/or restoration of pollution damages to natural resources.
And just like the Democrats in Congress failed to legislatively codify Roe V. Wade and protect women’s rights or to expand and clarify EPA’s regulatory powers, so too has the Democratic controlled NJ Legislature failed to enact legislative standards that would block or limit the Court’s erosion – at the behest of corporate lawyers – of critical public interest and environmental laws.
As we’ve written, several prior Court decisions have weakened DEP’s powers and let corporate polluters off the hook for billions of dollars of pollution damages they have caused.
Now, a recent US federal District Court decision in the Murphy DEP’s lawsuit against Dupont – which I will discuss below after I mention important context – highlights these dangerous trends in legal doctrines, see:
The Murphy DEP filed the Dupont lawsuit back in March 2019, seeking to re-open and correct a prior 2005 DEP sweetheart NRD deal with Dupont.
The lawsuit involves complex legal issues regarding the “public trust doctrine”, “trespass”, “nuisance”, and “natural resource damages” legal doctrines. I wrote about that Dupont lawsuit here, and, while I praised DEP for filing the lawsuit, I again predicted that DEP would lose:
The legislature and Gov. Murphy recently had an opportunity to close loopholes, clarify the law, and adopt clear legal standards to avoid these problems in recent legislation regarding the “public trust doctrine”, but they failed to do so and not only missed a critical opportunity, they even narrowed the doctrine, see:
And Senator Smith’s lame attempt to establish standards for natural resource damages was killed by corporate power,
And the DEP still has not adopted NRD regulations – mandated under an 2004 judicially approved settlement – that would define, economically value, and set standards and methods for the NRD program, see:
(In a parallel case, the recent DEP ExxonMobil NRD settlement, no one seemed to understand that, because NJ DEP’s toxic site cleanup program was privatized, the ExxonMobil private consultant performed an ecological risk assessment. Because DEP lacks enforceable NRD regulatory standards, the ExxonMobil private consultant was allowed to conclude: “PCB concentrations at the site do not pose a significant risk to the ecological community following removal of the PCB source material.”
Because DEP had no enforceable standards, DEP approved this self serving conclusion and attempt to evade NRD liability- then, remarkably, later sued for NRD damages they previously said did not exist! – see paragraphs Q and R on page 4)
All those chickens (again) now are coming home to roost in the Dupont lawsuit.
The US District Court’s pre-trail decision in the Dupont lawsuit highlighted a host of legal problems:
1. The DEP filed the lawsuit in State court, but Dupont managed to have it transferred to federal Court.
Plaintiffs filed their Complaint in New Jersey Superior Court, D.E. 1-1, which Defendants removed to this Court, D.E. 1
Jurisdiction and venue can be resolved by the NJ legislature in a way to prevent forum shopping, which is especially important as federal courts become more right wing dominated by Federalist Society ideologues. (The federal judge in this case, VAZQUEZ, was an Obama appointee, but Obama was a Neoliberal and had pro-corporate legal leanings so his appointees are surely not progressives. Interestingly, Vazquez successfully defended corruption charges in the NJ. Vasquez represented Anthony R. Suarez, mayor of Ridgefield, New Jersey, during his 2010 trial on corruption charges, and won an acquittal,).
(Judges need not be corrupt – they can have ideological agendas. A huge illustration of this, which I have personal knowledge of to support, was Judge Hogan’s control over the notorious Exxon $8.9 billion NRD case, settled by the Christie Administration for $225 million, less than 3 cents on the dollar. Hogan was a right wing ideologue who served as legal Counsel to “Open For Business” Whitman DEP Commissioner Bob Shinn.)
2. Dupont is seeking to dismiss the NRD claims, among other things, based on the 2005 sweetheart deal ( “CRACO”) in which DEP provided covenants not to sue Dupont for additional groundwater NRD.
DEP is relying on very thin reeds as their basis to re-open and enforce new NRD claims by asserting that Dupont failed to comply with certain highly technical requirements of the CRACO, including esoteric things like failing to file deed restrictions for lands surrendered to the State under the CRACO deal.
Recall the Dupont donated contaminated land as part of the CRACO deal, an egregious abuse we blasted:
- Bergen Record story: Dupont deal gave state more tainted soil (12/6/10)
“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.”
The contaminated land may explain why Dupont never filed the required deed notices and notice to DEP.
The Court dismissed issues regarding the CRACO at this preliminary stage. That’s a shame, because DEP attempted to submit what could be dynamite and embarrassing evidence, including emails:
Plaintiffs also attached several exhibits, including email correspondence between individuals who negotiated the CRACO. S
Those DEP/Dupont negotiation emails could expose how this dirty deal went down, but the may never come out, as a settlement is likely before trial.
3. DEP sued Dupont under the common law doctrine of “trespass”, but the law limits their enforcement power:
The State agrees that it cannot “pursue its trespass claim with respect to lands that it own[s] purely as a public trustee[, ]” but distinguishes its role of public trustee from that of parens patriae. Alternatively, Plaintiffs assert that the State is the owner of the State’s groundwater. Id. at 34. Plaintiffs further assert that N.J. Stat. Ann. § 12:5-2 grants the DEP the power to bring actions to prevent trespasses onto New Jersey’s navigable waters or riparian lands and that N.J. Stat. Ann. § 12:3-8 grants the DEP the authority to bring actions for trespass upon the State’s lands that are submerged or become submerged.
But the Court dismissed the DEP’s arguments for parens patriae, and in doing so, highlighted important issues
The New Jersey Supreme Court has not yet ruled on the issue of whether the State can nevertheless proceed under a parens patriae theory if the State does not enjoy exclusive possession, or, alternately, as the owner of the State’s groundwater. When predicting how a state’s highest court will rule on an issue, a court may look to the decisions of that state’s intermediate appellate courts for persuasive authority.
In New Jersey Department of Environmental Protection v. Hess Corporation, A-2893- 18T2, 2020 WL 1683180 (N.J.Super.Ct.App.Div. Apr. 7, 2020), the plaintiffs, which included the DEP, brought environmental claims against the defendants, including a claim for common law trespass. Id. at *1. The trial court dismissed the trespass claim. Id. at *2. On appeal, the plaintiffs argued “that their trespass claim should be restored because the State owns the water resources for the State.” Id. The Appellate Division disagreed,…
The Court finds the Hess decision persuasive and adopts its ruling here. Plaintiffs, however, argue that “public trustee” and “parens partriae” are distinct theories. Opp’n at 33. Nevertheless, the Appellate Division has observed in dicta that there are no meaningful differences between the two doctrines.
The Court could also look to NJ statutory law to resolve these issues.
All these legal problems could be avoided in DEP the legislature enacted or DEP adopted clear standards for the public trust doctrine, trespass, nuisance, ownership of and regulatory authority over groundwater, and NRD.
4. The Courts appear to be narrowing the State’s and DEP’s legal powers to protect groundwater:
The NJ statutes and decisions the Court relied on limited DEP’s powers:
Accordingly, the Court holds that Plaintiffs may bring trespass actions to the extent that their focus is “the lands of the State under water, or which were heretofore under water, ” N.J. Stat. Ann. § 12:3-8, or “the water front of any of the navigable waters of this State or bounding thereon, or .. .the riparian lands of this State, ” N.J. Stat. Ann. § 12:5-2.
For the foregoing reasons, the Court finds that Plaintiffs cannot proceed with their common law trespass claim except as to the waters and lands covered N.J. Stat. Ann. §§ 12:5-2 and 12:3-8.
Those waters do not include groundwater.
Again, the legislature could clarify the law here to explicitly apply trespass to groundwater.
5. The legislature and the Courts seem to have narrowed the State’s and DEP’s remedies for “public nuisance” merely to “abatement”, not the full suit of costs for damages, restoration, and compensation DEP is seeking:
New Jersey law provides that a public entity may only seek abatement but may recover the costs of abatement from “the one in control of the nuisance.” In re Lead Paint Litig., 924 A.2d 484, 499 (N.J. 2007).
The parties dispute the scope of an abatement and the associated costs. Compare D. Br. at 40-41, and D. Reply at 23-25, with Opp’n at 44-46. Such an inquiry into the scope of an abatement and its costs is inappropriate at this stage in the litigation.
Again, the legislature could clarify the law here to explicitly define the scope of costs recoverable and standards that govern “public nuisance”.
As we wrote above, Senate Environment Committee Chairman Smith recently formed a Task Force and then sponsored and pass legislation on the “Public Trust” doctrine.
Smith attempted but failed to do so on legal standards for natural resources damages and DEP has failed to abide by a Court settlement that mandates that DEP adopt regulations to govern NRD.
Given that prior Legislative action on these issues, I wrote Smith regarding the issues raised by their Dupont decision and urged him to hold oversight and enact legislative reforms.
These issues are complex, but good journalism and competent environmental activism could bring out the critical importance:
Dear Senator Smith:
As you know, the Murphy AG and DEP recently filed a series of lawsuits regarding public compensation or restoration for “natural resource damages”. These lawsuits involved, among other things, PFOA and various novel legal theories of trespass, nuisance, and product law.
Given your interests and jurisdiction on NRD and groundwater issues, I am writing regarding a recent court decision that appears to narrow the scope of the public trust doctrine with respect to enforcement and recovery of damages to natural resources and the States’ ownership of and interests in groundwater, see:
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al. Plaintiffs, v. E.I. DU PONT DE NEMOURS AND COMPANY, et al. Defendants.
https://casetext.com/case/nj-dept-of-envtl-prot-v-ei-du-pont-de-nemours-co-4
I urge you to request that OLS staff review this decision and to reach out to DEP to get a briefing on how this opinion impacts DEP’s ability to recover compensation for natural resource injuries.
I ask that this inquiry include whether legislative amendments are necessary to clarify and strengthen enforcement of the public ownership and public interest in protecting the groundwaters of the state, whether via comprehensive statewide regulation or site specific lawsuits.
Ideally, your Committee should hold public oversight hearings on these important issues, both to hold the Administration accountable and to provide an opportunity for the public to participate in these critical legal and policy decisions.
While I do not have a copy of the DEP and Dupont CRACO analyzed in this opinion, here is a copy of the DEP’s press release announcing those Dupont NRD settlements, which have been roundly denounced as a sweetheart deal, critics that obviously prompted the State to reopen them, see:
https://www.nj.gov/dep/newsrel/2005/05_0097.htm
I appreciate your favorable and timely reply.
Respectfully,