
Subscribe for updates
Recent Posts
- Supreme Court Issues “Course Correction” to NEPA Jurisprudence, Emphasizing Statutory Text and Common Sense
- Court Dismisses Bucks County’s Lawsuit Against Oil Companies based on Federal Preemption
- California District Court Promotes Settlement of Contribution Claims by Making Finding of Good Faith
- New Jersey Appellate Division Gives Clarity to Spill Act Statute of Limitations for State Claims
- Colorado District Court Puts Brakes on Denver Dam Work Pending Environmental Review
Topics
- NJDEP
- Connecticut
- Pollutants
- Federal Land Policy and Management Act
- Loper Bright
- Council on Environmental Quality
- Agency Action
- Public Trust Doctrine
- New Jersey Civil Rights Act
- Environmental Justice
- Disparate Impact
- Title VI
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- Georgia
- FIFRA
- Federal Insecticide, Fungicide, and Rodenticide Act
- 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
- Solvents
- National Priorities List
- Vapor Intrusion
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Operator Liability
- Potentially Responsible Parties
- Federal Circuit
- Environmental Covenants
- Apportionment
- Divisibility
- National Contingency Plan
- Strict Liability
- Water Pollution Control Act
- Utilities
- Public Utilities Commission
- Historic Resources
- Hydraulic Fracturing
- Water Use
- PFAS
- Ohio
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Fees
- Commonwealth Court
- West Virginia
- Forest Service
- TSCA
- Martime
- Asbestos
- Tribal Lands
- Gold King Mine
- Utah
- Federal Tort Claims Act
- New Mexico
- Delaware
- Delaware Department of Natural Resources and Environmental Control
- FERC
- National Forest Management Act
- Endangered Species Act
- United States Supreme Court
- Chevron Deference
- HSCA
- Corporate Veil
- Alter Ego
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- Building Materials
- First Circuit
- Property Damage
- PCBs
- Groundwater
- Natural Resource Damages
- Brownfields
- Brownfield
- Innocent Party
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- Effluents
- FOIA
- Sediment Sites
- EHB
- Texas
- Missouri
- Pipelines
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Clean Streams Law
- Civil Penalties
- Hearing Board
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Tax assessment
- Damages
- Property Value
- Stigma
- Fair Market Value
- Storage Tank
- Indemnification
- Energy
- Fifth Circuit
- Electric
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Discovery Rule
- Fourth Circuit
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Residential
- Inspection
- Freshwater Wetlands Protect Act
- New York
- Natural Gas Act
- Federal Energy Regulatory Commission
- Pennsylvania Department of Environmental Protection
- Hazardous Air Pollutants
- HAPs
- D.C. Circuit
- Mercury
- Takings
- Condemnation
- Storage
- Natural Gas
- Flooding
- Fifth Amendment
- Takings Clause
- Spill Act
- Causation
- NEPA
- Interior
- Mineral Leasing Act
- Tenth Circuit
- California
- Act 13
- Zoning
- Insurance Coverage
- Duty to Defend
- Landfill
- Eminent Domain
- Sixth Circuit
- Private Right of Action
- Illinois
- Water
- Subject Matter Jurisdiction
- Citizen Suit
- Diligent Prosecution
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Montana
- Equal-Footing Doctrine
- Riverbed
- Navigability
- Seventh Circuit
- Indiana
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Delay Notice
- Rulemaking
- Equity
- CISWI
- Consent Decree
- Enforcement
- EPA
- Laches
- Boiler MACT
- Declaratory Relief
- Second Circuit
- Contribution
- Procedure
- Standing
- NPDES
- Medical Monitoring
- Dimock
- Legislation
- Case Update
- Dukes
- Certification
- Contamination
- Louisiana
- CLE
- Decisions of Note
- Expert Witness
- Discovery
- Work Product
- Cases to Watch
- Privilege
- Defense Costs
- Cost Recovery
- CERCLA
- Insurance
- Real Estate
- Response Action Contractors
- Consultant Liability
- Negligence
- Remediation
- Army Corps
- Donovan
- Rapanos
- Nuisance
- Class Actions
- Hog Barn
- Kentucky
- Trespass
- Farming
- Odors
- New Jersey
- ISRA
- Informal Agency Action
- Administrative Hearing
- Waste
- Air
- Combustion
- RCRA
- Railroad
- Cancer
- Emissions
- Speaking Engagements
- Federal Procedure
- Third Circuit
- Toxic Torts
- Removal
- Permits
- Title V
- Clean Air Act
- Statute of Limitations
- Superfund
- Cleanup
- Supreme Court
- Tolling
- Camp Lejeune
- Statute of Repose
- Multi-District Litigation
- Mineral Rights
- Administrative Procedures Act
- Enforcement Action
- Marcellus Shale
- Due Process
- Deeds
- Clean Water Act
- Wetlands
- Exploration
- Royalties
- Drilling
- Oil and Gas
- Leases
Blog editor
Blog Contributors
In a decision issued earlier this month, Judge Wolfson of the District of New Jersey held that the New Jersey Department of Environmental Protection (“NJDEP”) could recover primary restoration natural resource damages from a responsible party as long as NJDEP demonstrated by a preponderance of the evidence that its proposed primary restoration plan is “practicable.” New Jersey Dep’t of Envtl. Prot. v. Amerada Hess Corp., No. 15-6468 (FLW)(LHG) (D.N.J. Nov. 1, 2017). In so holding, Judge Wolfson rejected an argument by the defendants, including Exxon Mobil Corporation and ExxonMobil Oil Corporation (“Defendants”), that primary restoration natural resource damages were available only upon a showing of “an injury or threat to human health, flora, or fauna.” The court found that such a standard, which was derived by Defendants from unpublished, non-controlling authority from New Jersey state courts, was inconsistent with the plain language of the Spill Act that speaks directly in terms of “practicability.”
The case relates to contaminated groundwater at and around five gas stations in New Jersey. The groundwater is contaminated by Methyl Tertiary Butyl Ether (“MTBE”), a gasoline additive, in concentrations in exceedance of New Jersey’s ground water quality standards (“GWQS”), which is 70 ppb. Defendants were remediating MTBE in groundwater at the sites down to the 70 ppb GWQS. The narrow issue before the court was whether Defendants should be afforded leave to file a partial motion for summary judgment to preclude NJDEP from seeking the recovery of primary restoration natural resource damages under the New Jersey Spill Compensation and Control Act (the “Spill Act”).
Primary restoration damages are the cost of restoring resources to their pre-discharge condition. The Spill Act authorizes NJDEP to commence a civil action for “the cost of restoration and replacement, where practicable, of any natural resource damaged or destroyed by a discharge[.]” Here, although Defendants were remediating MTBE to the 70 ppb GWQS, the natural resources would not be restored to their “pre-discharge” condition because MTBE, which is not naturally occurring, would still be present in the groundwater, albeit in smaller concentrations. Defendants contended that, because they were already remediating the MTBE contamination, NJDEP could recover primary restoration natural resource damages only if the Department demonstrated that there was “an injury or threat to human health, flora, or fauna.” As it was undisputed that there was no injury or threat to human health, flora, or fauna, Defendants argued, they should be entitled to move for partial summary judgment on the issue of primary restoration natural resource damages.
Judge Wolfson rejected the Defendants’ proposed standard, however, and denied them leave to file a motion for summary judgment. The court explained that the Spill Act explicitly stated that NJDEP could recover natural resource damages for restoration “where practicable.” While “practicable” is not defined in the Spill Act, the court relied on its plain meaning to conclude that a remedy is “practicable” if it is “reasonably capable of being accomplished; feasible in a particular situation.” There was no reason, in the courts’ view, that it should read into the statute the more onerous burden proposed by Defendants in the absence of controlling New Jersey precedent. Accordingly, the court held that the issue of the practicability of primary restoration damages was the subject of a factual dispute to be determined at trial.