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A New Direction/The Road Ahead

There was no question that the Murphy administration would have a different vision concerning environmental protection issues than that of its predecessor. Christie’s tenure was characterized by a business-friendly and regulatory-reform agenda. See L. Goldshore, “Nobody Likes Red Tape: Will Report Be Implemented or Ignored,” 200 N.J.L.J. 431 (May 17, 2010).

During the campaign, candidate Murphy made it clear that he saw environmental issues differently and that he was in sync with the environmental community’s priorities including the need to address climate change and promote alternative energy. See L. Goldshore, “Turning the Page: The Murphy Administration’s Environmental Policy,” 224 N.J.L.J. 1474 (May 28, 2018). Not surprisingly, the environmental groups, often viewed as a democrat party constituency group, endorsed Murphy’s candidacy. But the implementation of the new environmental agenda has proceeded at a somewhat slower pace than expected due, in part, to the delay in the new commissioner’s confirmation.

While the Murphy administration was getting up to full speed, the judiciary and legislature continued to refine the state’s environmental law and policy. This article identifies 2018’s top 10 environmental developments.

10. The Supreme Court’s Docket

In N.J. Highlands Coalition v. DEP, the court will consider whether a Mt. Laurel affordable housing project qualified for a Highlands Water Protection and Planning Act exemption. 2017 WL 3318305 (App. Div. 2017), certif. granted, 2017 WL 10222368 (2017). See L. Goldshore, “Court to Decide Highlands Act Exemption Case,” 224 N.J.L.J. 163 (Jan. 15, 2018). The Highlands Law exempted certain developments covered by a settlement agreement and stipulation filed in the superior court or a builder’s remedy. But that exemption expired if construction beyond site preparation did not commence within three years after receipt of all final approvals pursuant to the Municipal Land Use Law (MLUL). N.J.S.A. 13:20-28(a)(17).

The Appellate Division agreed with DEP that the exemption had not lapsed because the local planning board approval was subject to conditions and, as such, did not constitute final approval defined by the MLUL. N.J.S.A. 40:55D-4. Whatever the outcome, the dispute might have been avoided had the exemption provision been drafted more precisely.

The court will also decide whether a Spill Fund claimant sustained its burden to demonstrate entitlement to reimbursement. US Masters Residential Property v. DEP, 2018 WL 1597953, certif. granted ___ N.J. ___ (2018). The Appellate Division affirmed the administrative law judge’s denial of the claim based on the claimant’s failure to prove that the property damage was caused by a post-Spill Act discharge.

9. Down on the Farm

The issue in State Agriculture Development Comm. (SADC) v. Quaker Valley Farms was whether the owner of a preserved farm could extensively grade its property to construct hoop houses in the absence of soil disturbance standards. 2015 WL 12732835 (App. Div. 2016), rev’d 2018 WL 3848763 (2018). In ruling in favor of the landowner, the appeals court reasoned that neither the deed of easement nor the SADC’s regulations “set standards regarding the permissible amount of impervious cover and the methods and extent of permissible soil displacement.” See L. Goldshore, “Down on the Farm,” 222 N.J.L.J. 3775 (Nov. 28, 2016).

On Aug. 13, the Supreme Court reversed the appellate ruling and noted that due process required that the owners of preserved farms be provided with reasonable notice of the permissible agricultural uses on their land. Nonetheless, the court held that “even under the existing law and the present deed, any reasonable person should have known that despoiling so much prime quality soil was an unauthorized activity.” It also observed that the SADC was in the best position to promulgate soil disturbance guidelines, and if it failed to do so “it can expect administrative due process challenges to its enforcement actions.”

8. Supreme Court Rejects Insurers’ Arguments

The insured in Continental Ins. Co. v. Honeywell manufactured brake and clutch pads that contained asbestos. 2018 WL 3130638. The Supreme Court considered: (i) whether NJ allocation law applied based on conflicts-of-law rules and (ii) whether Owens-Illinois required the insured to share in liability allocation when it continued to manufacture asbestos-containing products when insurance was unavailable.

The court rejected the insurers’ arguments and applied NJ allocation law based on conflicts-of-law principles. It also recognized that Owens-Illinois required the insured to share in liability allocation when it did not purchase insurance but refused to modify the unavailability rule when the insured continued to manufacture asbestos-containing products after insurance became unavailable.

7. Exxon Mobil Settlement

The state’s effort to recover natural resource damages (NRD) from Exxon Mobil due to operations at two refineries and other facilities commenced in 2004 and concluded earlier this year. The state had initially sought an estimated $9 billion in damages but ultimately settled for $225 million.

The court rejected claims by the environmental groups and a former state legislator that the settlement amount was inadequate. DEP v. Exxon Mobil, 453 N.J. Super. 272 (App. Div.), certif. denied 233 N.J. 377 (2018). The environmentalists were also displeased that only $50 million of the settlement money was allocated to environmental restoration while the remainder was diverted to general state purposes and the payment of outside counsel fees.

6. Low Intensity Recreational Uses in the Pinelands

The Appellate Division considered whether soccer and soccer activities were permitted on a preserved turf farm in the pinelands. In Re Pinelands Consistency Determination Approving Tuckahoe Turf Farms, 2018 WL 3384296 (App. Div. 2018). The court dismissed the objections based on an amendment to the Pinelands Protection Act that expressly recognized that these activities were permissible, low intensity, recreational uses. N.J.S.A. 13:18A-8.1. A petition for certification is pending.

5. Executive Orders and New Statutes

Shortly after assuming office, Gov. Murphy signed four executive orders. These required the state to reenter the Regional Greenhouse Gas Initiative; promoted offshore wind energy; supported environmental justice measures in urban communities; and advanced clean energy. Similarly, the legislature lost no time in enacting four green laws that directed the state to join the United States climate alliance; prohibited outer continental shore drilling and exploration; promoted clean energy and energy efficiency programs; and instructed the Board of Public Utilities to consider offshore wind energy. While these measures addressed the low hanging fruit, they are likely to be followed up by more substantive changes in the state’s environmental agenda.

4. Highlands – Septic Density

On Jan. 8, the legislature nullified the DEP’s 2017 septic system density standards for the Highlands preservation area on the grounds that they were inconsistent with legislative intent. SCR-163/ACR-255; N.J.S.A. 13:20-1 et seq. See L. Goldshore, “Highlands Septic System Density Rule,” 224 N.J.L.J. 294 (Jan. 29, 2018). The nullified standards relaxed the prior requirements but substantial areas were still required to construct a single septic system: 23 acres in the Protection Land Use Capability (LUC) zone, 12 acres in the Conservation LUC, and 11 acres in the Existing Community LUC. Interestingly, the supreme court recently addressed the legislative nullification procedure in another context and upheld the legislature’s inconsistency determination. CWA v. Civil Service Comm’n., 2018 WL 3747806.

3. Relationship With Environmental Community

The organized environmental community has almost universally supported democrat gubernatorial candidates. During the 2017 campaign there was really no choice: the republican candidate had been the point person for the Christie administration’s regulatory reform agenda, and the democrat was saying all the right things about the environment, climate change and clean energy. While the groups supported the Murphy environmental/clean energy agenda, they have not held back their criticism when there has been a difference of opinion regarding the details or its implementation.

2. Regulatory Review: Unwinding the Clock

It is likely that the DEP will critically review those regulatory measures implemented during commissioner Martin’s tenure that rolled back the burdens on the regulated community. Proposing and adopting regulatory changes is seldom an easy or quick process but most, if not all, of the Christie/Martin business-friendly reforms will be scrutinized and on the chopping block.

1. Environmental Enforcement: The New Direction

On Aug. 1, the acting governor, the attorney general and the DEP commissioner traveled the state to make it clear that it was a new day for environmental enforcement. They announced the filing of six cost recovery actions, three of which included NRD claims. According to Attorney General Grewal: “Today is just the beginning … we’re back in the environmental enforcement business.” Precisely what that means and how it will play out remains uncertain at this time.

 

Lewis Goldshore practices in Princeton. His practice is devoted to environmental, land use and municipal law. He is the author of New Jersey Environmental Law (ICLE 2010).