Subscribe for updates
Recent Posts
- Supreme Court Holds that Building Permit Fees Imposed by Legislation Are Subject to Scrutiny under Constitution’s Takings Clause
- Federal District Court Rejects Motion to Enjoin Biden Administration’s Section 401 Clean Water Act Rule
- Federal District Court Holds that CERCLA Procedure for Natural Resource Damage Assessments Not Required as a Matter of Law
- Local Law Prohibiting Natural Gas Piping is Preempted, Ninth Circuit Holds
- District Court Failed to Consider Maui Factors as to Mining Company's Groundwater Discharges, Tenth Circuit Holds
Topics
- Evidence
- Internal Investigation
- Citizens Suit
- Georgia
- Federal Insecticide, Fungicide, and Rodenticide Act
- FIFRA
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Vapor Intrusion
- Solvents
- National Priorities List
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Environmental Covenants
- Federal Circuit
- National Contingency Plan
- Divisibility
- Apportionment
- Strict Liability
- Water Pollution Control Act
- Utilities
- Public Utilities Commission
- Historic Resources
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Gold King Mine
- New Mexico
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Delaware
- Delaware Department of Natural Resources and Environmental Control
- National Forest Management Act
- FERC
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Property Damage
- Building Materials
- First Circuit
- Groundwater
- Natural Resource Damages
- Brownfield
- Innocent Party
- Brownfields
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- FOIA
- Effluents
- Sediment Sites
- EHB
- Missouri
- Pipelines
- Texas
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Hearing Board
- Civil Penalties
- Clean Streams Law
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Damages
- Stigma
- Property Value
- Tax assessment
- Fair Market Value
- Storage Tank
- Electric
- Fifth Circuit
- Indemnification
- Energy
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Freshwater Wetlands Protect Act
- Inspection
- Residential
- New York
- Federal Energy Regulatory Commission
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- Hazardous Air Pollutants
- Mercury
- D.C. Circuit
- HAPs
- Condemnation
- Takings
- Natural Gas
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Spill Act
- Causation
- NEPA
- Interior
- Tenth Circuit
- Mineral Leasing Act
- California
- Act 13
- Zoning
- Insurance Coverage
- Duty to Defend
- Eminent Domain
- Landfill
- Sixth Circuit
- Private Right of Action
- Illinois
- Water
- Citizen Suit
- Diligent Prosecution
- Subject Matter Jurisdiction
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Riverbed
- Equal-Footing Doctrine
- Montana
- Navigability
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Laches
- Delay Notice
- EPA
- Consent Decree
- Boiler MACT
- Rulemaking
- CISWI
- Enforcement
- Equity
- Declaratory Relief
- Second Circuit
- Contribution
- Standing
- NPDES
- Procedure
- Medical Monitoring
- Dimock
- Case Update
- Legislation
- Contamination
- Dukes
- Louisiana
- Certification
- CLE
- Privilege
- Work Product
- Decisions of Note
- Cases to Watch
- Discovery
- Expert Witness
- Cost Recovery
- Defense Costs
- Insurance
- CERCLA
- Real Estate
- Negligence
- Remediation
- Response Action Contractors
- Consultant Liability
- Donovan
- Rapanos
- Army Corps
- Class Actions
- Odors
- Trespass
- Farming
- Hog Barn
- Kentucky
- Nuisance
- ISRA
- New Jersey
- Informal Agency Action
- Administrative Hearing
- Emissions
- Railroad
- RCRA
- Waste
- Air
- Cancer
- Combustion
- Speaking Engagements
- Removal
- Third Circuit
- Toxic Torts
- Federal Procedure
- Clean Air Act
- Permits
- Statute of Limitations
- Title V
- Cleanup
- Superfund
- Supreme Court
- Multi-District Litigation
- Statute of Repose
- Tolling
- Camp Lejeune
- Administrative Procedures Act
- Deeds
- Clean Water Act
- Marcellus Shale
- Due Process
- Mineral Rights
- Enforcement Action
- Wetlands
- Drilling
- Exploration
- Leases
- Oil and Gas
- Royalties
Blog editor
Blog Contributors
Earlier this month, New Jersey’s Appellate Division affirmed a judgment issued by the Chancery Division, the state’s court of equity, which required neighbors to participate and share in the costs of investigating nearby contamination even though there was not yet any evidence as to the precise source of the contamination. Matejek v. Watson et al., Dkt. No. A-4683-14T1 (N.J. Super. Ct. Mar. 3, 2017). In doing so, the Appellate Division adopted an expansive view of the Chancery Division’s power to fashion an equitable remedy when the letter of the law, in this case New Jersey’s Spill Compensation and Control Act (Spill Act), does not provide for one.
The case related to oil contamination on the surface of a tributary near a condominium development. Nearly a decade ago, in response to the contamination, the New Jersey Department of Environmental Protection (NJDEP) had removed underground storage tanks from each of five nearby condominium units. Other than confirming that there was no oil in the tributary, NJDEP took no additional action at the site but its file remained open, leaving a cloud over the title of the five condominium units.
The plaintiffs, owners of one of the impacted units, filed a complaint in the Chancery Division against the owners of the other four units. They sought a judgment that would obligate the neighboring owners to participate in and equally share in an investigation and, if necessary, remediation of the property.
After a bench trial, the judge entered a judgment ordering the parties to retain a licensed site remediation professional (LSRP) to investigate the site and ordered all of the unit owners to share in the costs. The judge explained that, even though there was no evidence yet as to the precise source of the contamination, the fact that NJDEP had removed all five tanks was sufficient to impose on the impacted parties the obligation to participate in the investigation process.
One of the owners appealed the decision, arguing that the Spill Act does not permit such relief, but the Appellate Division affirmed the lower court’s decision. Relying more on equitable principles than case law or statutory text, the Appellate Division reasoned that, under the circumstances, there was a need for a remedy that would “fairly burden all the potential dischargers with an investigation into the actual cause” of the contamination, rather than imposing that burden solely on plaintiffs. The court acknowledged that the “plaintiffs’ suit varies from what the Legislature likely anticipated when authorizing a private cause of action for contribution,” but the court nevertheless concluded that a court’s equitable jurisdiction afforded it the necessary flexibility to avoid such a “narrow” and “inequitable” “interpretation of the Spill Act” that would deprive the plaintiffs’ of a remedy in the face of such a wrong.
Given that there is very little analysis of the Spill Act in this short decision, it will be interesting to monitor whether New Jersey courts read this decision as a shift in Spill Act jurisprudence, or as is more likely, courts treat the Appellate Division’s equitable arguments as a product of the unique facts of the case before the court.