The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601, et seq., is best known for setting forth a comprehensive mechanism to cleanup hazardous waste sites under a restoration-based approach and for imposing liability on potentially responsible parties. What is less well known, and what is at issue in the latest decision to come out of litigation surrounding the 2015 Gold King Mine release, is CERCLA’s provisions that allow certain governmental entities who act as environmental trustees to recover money damages known as Natural Resource Damages (“NRDs”) from responsible parties for injuries to natural resources caused, directly or indirectly, from the release of hazardous substances, above and beyond the costs to clean up the contamination.  In In re Gold King Mine Release in San Juan Cnty., Colorado, on Aug. 5, 2015, No. 16-CV-931-WJ-LF, 2023 WL 2914718 (D. N.M. Apr. 12, 2023) (“In Re Gold Mine”), the Court held that CERCLA limited the Navajo Nation’s use of NRDs but also that CERCLA did not preempt state tort claims seeking restorative damages.  Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Damages, Drinking Water, Gold King Mine, Mining, Natural Resource Damages, New Mexico, Property Damage, Public Lands, Superfund

On April 7, 2020, the Appellate Division of the New Jersey Superior Court rendered its decision in New Jersey Department of Environmental Protection v. Hess, A-2893-18T2 (N.J. Super. App. Div. Apr. 7, 2020), one of the lawsuits in which the State of New Jersey (the “State”) is seeking to recover natural resource damages (“NRDs”). Earlier this year we flagged the Appellate Court’s opinion as one to watch in 2020, particularly with respect to how the Appellate Court would rule on the State’s ability to assert a claim for trespass over land it does not own—an issue that has divided sister trial courts. See New Jersey Department of Environmental Protection v. Deull Fuel, No. ATL-L-1839-18 (N.J. Super. Ct. Law Div. Aug. 8, 2019) (denying motion to dismiss common law trespass claim because Public Trust Doctrine supersedes exclusivity element of trespass); New Jersey Department of Environmental Protection v. Hess, MID-L4579-18 (N.J. Super. Ct. Law Div. Dec. 21, 2018) (granting motion to dismiss common law trespass claim because State lacked exclusive possession over the land).  The Appellate Court’s unreported opinion provides clarity that despite the State’s authority under the public trust doctrine, it cannot assert a claim for trespass in the absence of exclusive possession. Read More »

Share | Email| Comments|  Topics: Contamination, Natural Resource Damages, New Jersey, Nuisance, Oil and Gas, Spill Act, Strict Liability, Trespass, Water Pollution Control Act

On February 12, 2018, the Appellate Division of the Superior Court of New Jersey held that environmental groups had standing to challenge on appeal the trial court’s ruling accepting DEP’s $225 million settlement with Exxon Mobil for Natural Resource Damages (“NRD”), which include compensation for the injury and destruction of natural resources and the public’s loss of the use and enjoyment of those resources under New Jersey’s Spill Compensation and Control Act (“Spill Act”). See New Jersey Dep’t of Envtl. Prot. v. Exxon Mobil Corp., No. A-0668-15T1, 2018 WL 823001 (N.J. Super. Ct. App. Div. Feb. 12, 2018). The appellate court ultimately upheld the settlement, notably the largest NRD settlement in New Jersey’s history, finding that it was a reasonable compromise and was in the public interest.  Two weeks later, however, the environmental groups whom the Court found had standing to appeal, including the New Jersey Sierra Club and the Delaware Riverkeeper filed a Petition for Certification, requesting that the New Jersey Supreme Court review the decision.  Read More »

Share | Email| Comments|  Topics: Intervention, Natural Resource Damages, New Jersey, Spill Act

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.” Read More »

Share | Email| Comments|  Topics: Contamination, Damages, Natural Resource Damages, New Jersey, Spill Act