The year 2012 was another eventful one for attorneys interested in environmental law and policy. The following reviews this year’s “top ten” issues, several of which will continue to occupy the public agenda during 2013, a gubernatorial election year.
10. Rutgers Environmental Law Clinic and OPRA.The court has clarified how the Open Public Records Act (OPRA) applied to the Rutgers Environmental Law Clinic. Sussex Commons Associates v. Rutgers, the State University, 210 N.J. 531 (2012). See L. Goldshore, “The Limits of OPRA’s Reach,” 209 N.J.L.J. 279(July 16, 2012).
Since 1985, the clinic has provided pro bono environmental legal services to the public. In 2004, the clinic began representing two nonprofit citizens groups and actively opposed Sussex Commons’ proposal to construct a 91-store outlet mall. Those efforts were unsuccessful and the local approvals for the mall were approved. As a result, the clinic found itself in the position of being on the receiving end, rather than on the filing end, of an OPRA request and lawsuit.
The Appellate Division held that OPRA applied since the clinic met the statutory definition of public agency. The court reversed on the basis that the legislature did not intend for the statute to cover the clinic’s case-related records. It concluded that records related to cases at public law school clinics were not subject to OPRA. This ruling extended to client-related documents, clinical case files and requests for information about the development and management of litigation.
9. Right to Inspect Private Property.A government inspector’s right to conduct a warrantless search will be revisited by the Supreme Court in N.J. Dep’t of Envtl. Protection v. Huber. In that case, a DEP inspector sought entry to determine whether a homeowner’s activities violated the Freshwater Wetlands Protection Act (FWPA). The case was argued on Oct. 23, and a decision is expected in the near future.
The Appellate Division found that the DEP representative was statutorily authorized to enter and inspect the property with or without the homeowner’s consent. The panel reasoned that the FWPA permit issued to a predecessor brought the residential property under the DEP’s purview and that an administrative search warrant was not required due to the department’s express statutory authority to enter and inspect any property. A ruling by the court that a warrant is required would not present practical difficulties for the DEP since only a small percentage of homeowners would turn away an environmental inspector.
8. Spill Act — Causal Connection.N.J. Dep’t of Envtl. Protection v. Dimant arose in a familiar setting — perchloroethylene (PCE) contamination allegedly associated with dry cleaning operations. 212 N.J. 153 (2012).
DEP and the Spill Fund Administrator argued that the defendant’s discharge of PCE onto the ground subjected it and its predecessor operation to strict liability under the Spill Act for the costs and damages associated with all of the PCE contamination in the area. The state contended that statutory liability attached upon the discharge, even a de minimis one, and that it was not necessary to prove a direct causal connection between the discharge and the damages.
The court disagreed and found that “in an action to obtain damages, authorized costs and other similar relief under the Act there must be shown a reasonable link between the discharge, the putative discharger, and the contamination at the specifically damaged site.” For additional discussion of the Dimant ruling, see L. Goldshore, “The Need for a Causal Connection,” 210 N.J.L.J. 290(Oct. 15, 2012).
7. Global Warming Chilled.Gov. Christie has sent mixed signals as to his global warming views. He has acknowledged that climate change is occurring and that greenhouse gases in the atmosphere are increasing.
The administration has supported efforts to reduce carbon emissions, promote energy efficiency and encourage alternative energy measures. But the one exception is the Regional Greenhouse Gas Initiative (RGGI). The governor ended the state’s involvement in RGGI and has vetoed legislation that would have required its participation.
6. Barnegat Bay Initiatives.In 2011, the governor approved three statutes designed to improve Barnegat Bay’s imperiled water quality. These set strict lawn fertilizer standards, updated statewide soil erosion and sediment control standards, and directed the Department of Transportation to investigate and repair its storm-water basins in the watershed.
But the governor did not approve two other proposals: one would have established daily limits (TMDLs) for nutrients, and the other would have authorized Ocean County and its towns to impose a fee on new development to be used for improvements to malfunctioning storm-water systems. See L. Goldshore, “Saving Barnegat Bay,” 202 N.J.L.J. 642(Nov. 15, 2010).
In August, a joint hearing of the Senate and Assembly environment committees reviewed the bay’s condition and the need for remedial measures. A Rutgers University professor advised the legislators that the waterway required urgent attention to address declining water quality. He identified the need to repair the storm-water basins that discharge polluted runoff and to set TDMLs for nutrients. Sen. Bob Smith, chairman of the Senate’s environment committee, commented that he hoped that the administration would reconsider its position and indicated that these issues are likely to receive renewed legislative attention.
5. Highlands Happenings.There was never any secretthatGov. Christie was displeased with the Highlands Council’s regulatory program. He expressed particular concern that landowners were not compensated for their diminished property values.
The governor’s initial steps included the appointment of new council members who shared his views. At the council’s March 2012 meeting, the executive director was dismissed and the deputy resigned. While it is apparent that changes in the council’s program will be implemented, additional time will be required for those new directions to take shape. The challenge will be how far the council can proceed without amendments to the highly prescriptive Highlands statute.
4. Public Access Rule. The adoption of rules for public access to the waterfront has been a difficult task. Following contentious public hearings, the DEP decided not to proceed with its original proposal. Rather, it advanced a slightly different version in March 2012. See L. Goldshore, “Public Access to N.J.’s Shoreline,” 204 N.J.L.J. 199 (April 18, 2011), and “Public Access Redux,” 208 N.J.L.J.186(Apr. 16, 2012).
But the revised proposal did not assuage the objectors’ concerns. Fishing, open beach and urban waterfront advocates tend to view public access in absolute terms and consider any limitations unacceptable. As a result, the redraft met with strong opposition. The final rule was approved and published during the off-season in the Nov. 5 issue of the New Jersey Register.
3. Waiver Rule.The DEP adopted its long-awaited waiver rule on March 8. See L. Goldshore, “DEP’s Long-Awaited Waiver Rule,” 207 N.J.L.J. 831(Mar. 19, 2012), and “DEP’s Waiver Rule Takes Effect,” 209 N.J.L.J. 631 (Aug. 20, 2012). The rule implemented Gov. Christie’s common sense Executive Order. It instructed all departments and agencies to adopt waiver procedures to provide relief from strict compliance with conflicting or unduly burdensome rules. But any relief that was granted also had to be consistent with the agency’s core missions. Based on all of the conditions and limitations, it is likely that very few waivers will ever be approved.
The waiver rule’s operative date was suspended to provide the DEP with additional time to establish an electronic system for filing requests and posting information. On Aug. 1, the department posted the waiver rule homepage on its website. The rule’s future is uncertain due to a pending appeal and the possibility that the Legislature will invoke its constitutional authority to invalidate the rule as inconsistent with legislative intent.
2. SRRA/LSRP Update.The Site Remediation Reform Act (SRRA) became fully effective on May 7. The department has posted detailed information regarding SRRA and related issues on its website.
The statute, designed to expedite the remediation process, assigned a substantial portion of the DEP’s traditional authority to licensed site remediation professionals (LSRPs). It is too soon to assess whether the SRRA will achieve the statutory objectives.
While the DEP has been blamed for the historic slow pace of cleanups, the real culprit in many instances was the absence of a market for the end product. Where that condition persists, remediation will remain challenging despite the change in the law and the responsible personnel.
1. DEP’s Makeover. The DEP was traditionally viewed as being unresponsive to the business community and its needs. Upon assuming office, the Christie administration pledged to change that perception and expedite the permit process by cutting red tape.
To implement the new agenda, the department has made strategic planning and personnel changes. But how far these steps will go toward achieving the desired objectives, without fundamental changes to the statutes and regulations, continues to be a work in progress.