This proved to be another eventful year for attorneys interested in environmental law and policy. Below is a review of the “top ten” environmental issues of 2013, several of which will remain on the public agenda during the year ahead.
10. Sewerage Connection Fees
612 Associates v. North Bergen Municipal Utilities Authority involved a dispute between two sewerage authorities concerning entitlement to a sewer connection fee from a new development. 215 N.J. 3 (2013). That development was directly connected to the North Hudson Municipal Regional Sewer Authority’s sewer collection system. But the flow travelled for a short distance before being discharged into the North Bergen Municipal Utilities Authority’s collection system and conveyed to its treatment plant.
The Appellate Division upheld the trial court’s apportionment of the connection fee between the two utilities. The court agreed, finding that both authorities could charge a connection fee that was linked to the capital costs of the relevant portion of its sewerage system.
9. Right To Inspect Private Property
The court upheld the right of an inspector from the Department of Environmental Protection (DEP) to conduct a warrantless search of residential property to determine whether a Freshwater Wetlands Protection Act (FWPA) permit had been violated. N.J.S.A. 13:9B-1 et seq.NewJersey DEP v. Huber, 213 N.J. 338 (2013). For additional discussion of the decision and its implications, see L. Goldshore, “DEP’s Inspection of Residential Property,” 212 N.J.L.J. 483 (May 20, 2013).
The court noted that FWPA’s administrative inspection regime did not provide for forcible entry without a warrant when consent was denied. Rather, where a property owner who was subject to a FWPA permit objected to entry, DEP had the statutory authority to assess a penalty and seek judicial relief. N.J.S.A. 13:9B-21(b), -21(c).
The court sidestepped the necessity for the Hubers’ consent to the initial inspection by concluding that FWPA had been violated based on the agency’s findings due to its subsequent site visits, aerial and other photographs, and the homeowners’ admissions. The Appellate Division’s judgment upholding DEP’s administrative order and penalty assessment was affirmed.
8. On the Court’s Docket
The court will be deciding two Spill Act cases in the coming year. The first is Magic Petroleum Corp. v. Exxon Mobil Corp., where the issue is whether DEP has primary jurisdiction to determine Spill Act claims for the allocation of liability. N.J.S.A. 58:10-23.11 et seq.; 2011 N.J. Super. Unpub. LEXIS 2021 (App. Div. 2011), certif. granted, 213 N.J. 387 (2013). In the second case, Morristown Associates v. Grant Oil Co., the court is being asked to consider whether the general six-year statute of limitations applies to Spill Act contribution claims. ___ N.J. Super. ___ (App. Div. 2013) (pet. for certif. pending).
7. Compensation for Dune Construction
Borough of Harvey Cedars v. Karan clarified the rules for determining just compensation where a dune was constructed that partially blocked the property owners’ views of the beach and surf. 214 N.J. 384 (2013). For additional discussion, see L. Goldshore, “Obstacle to Dune Construction,” 211 N.J.L.J. 483 (Feb. 18, 2013), and “Valuing an Ocean View,” 213 N.J.L.J. 351 (July 22, 2013).
The municipality claimed that the property owners realized a special benefit due to the enhanced protection from the dune construction and that the amount to be paid for the easement should be reduced. But the trial judge disagreed, found that the dune constituted only a general benefit and the jury returned a $375,000 verdict.
The court rejected the special/general benefits formula as outdated. Rather, it concluded that in partial-taking cases, just compensation should be based on all relevant, reasonably calculable and nonconjectural factors whether they decrease or increase valuation. The ruling’s impact on future condemnation awards will require future litigation.
6. Waiver Rule Upheld
The Appellate Division’s In re N.J.A.C. 7:1B-1.1 et seq. decision concerned the DEP’s authority to waive strict compliance from its regulatory requirements in limited circumstances. 431 N.J. Super. 100 (App. Div.), certif. den. ___ N.J. ____ (2013). For a review of the decision, see L. Goldshore, “Appellate Division Upholds DEP’s Waiver Authority,” 212 N.J.L.J. 126 (Apr. 15, 2013).
The appeals court was unequivocal in finding that DEP had the authority to adopt the waiver rules and affirmed them as written. But it sent the agency back to the drawing board on a secondary and independent issue—the validity of a guidance document, frequently asked questions (FAQs) and application forms posted on the department’s website.
The appellants, a coalition of environmental and labor organizations, were unable to obtain certification but have pursued legislative review. See N.J. Const. art. V, § 4, ¶ 6, authorizing the legislature to invalidate agency rules that are inconsistent with legislative intent. As for the DEP, it may simply amend the rules to include the informational documents within the body of rules.
5. Global Warming
Governor Christie has acknowledged that global warming is occurring, but he has expressed doubts concerning the appropriate governmental responses. He outraged the environmental and allied groups by withdrawing from the Regional Gashouse Gas Initiative, a multistate program designed to reduce carbon dioxide emissions.
Equally troubling for the environmentalists was the governor’s reallocation of significant sums earmarked for clean-energy projects to balance the state’s budget. These actions were taken despite global warming and sea-level rise having been linked by authoritative sources to the severity of Superstorm Sandy’s damage.
4. SRRA/LSRP Update
With the passage of time, those involved in hazardous site cleanups have become increasingly familiar with the Site Remediation Reform Act (SRRA) and the new sheriffs in town, the licensed site remediation professionals (LSRP). N.J.S.A. 58:10C-1 et seq.
SRRA’s goals included expediting clean-ups and reducing remediation costs. While the process is still evolving, achieving the statutory objectives has proven to be elusive. SRRA’s implementation has been mired in the completion of the DEP’s forms and in deciphering the evolving technical guidance. Additionally, the LSRPs have tended to be conservative in their approach to remediation.
3. Sandy Aftermath
The recovery and rebuilding efforts following Superstorm Sandy have resulted in substantial environmental and land-use impacts. While some of these issues were immediately apparent, others will require additional time before they are clarified.
Each of the branches of government has a role in sorting out the issues. The Christie administration has taken the lead by securing funding from the federal government, removing the red tape to facilitate rebuilding and seeking to buy out flood-prone properties.
The legislature promptly responded to the devastation with several proposals designed to address specific aspects of the recovery and rebuilding process. The current legislative session will not end before some of these are presented to the governor for his approval. For a discussion of those proposals, see L. Goldshore, “Sandy Inspires a Storm of Legislative Proposals,” 211 N.J.L.J. 795 (Mar. 18, 2013). In the wake of the superstorm, the Supreme Court decided the Karan case (see item 7) and rejected a valuation formula that increased dune construction costs.
2. Gubernatorial Race
The gubernatorial race’s focus was directed at pocketbook, rather than environmental, issues. But to the extent that environmental concerns received attention, Senator Buono’s record and message resonated with the environmentalists. She was able to garner endorsements from some, but not all, of the organized groups; but in the end that didn’t matter.
In contrast, Gov. Christie distanced himself from nearly all of the environmentalists four years ago and maintained an icy relationship with them during his first term. Rapprochement with the professional environmentalists is unlikely to occur during the second term.
1. DEP’s Makeover
From the earliest days of the first Christie administration, the priorities included making the state more attractive to the business community and removing red tape. The DEP, in particular, was targeted for a makeover.
The DEP is now a very different agency than it was at the end of Gov. Corzine’s term. It is considerably smaller as a result of successive budget cuts and the privatizing of some of its previous responsibilities. In general, it is easier for the regulated public to deal with due to the retraining of the staff, the increased use of technology and a vastly improved website. The unresolved question is what additional environmental policy changes will be put in place during the second Christie administration. •