USA – NEW JERSEY Law and Practice Contributed by: Nicole Dory, Christina Sartorio Ku, Meredith Rubin and Camryn Goldstein, Connell Foley LLP
health or the environment...” However, while a party may seek injunctive relief through RCRA, parties may not recover past cleanup costs under RCRA claims. Finally, the New Jersey ERA permits claims by citizens to enforce environmental statutes and regulations in New Jersey when the NJDEP or other governmental authorities fail to proceed with enforcement actions, or if governmental actions are insufficient to address environmental harm. The ERA allows citizens to request injunctive relief, demand penalties, and poten- tially recover attorney and expert fees, if successful. In addition, recovery may also be sought through tra- ditional common law causes of action, such as pri- vate and public nuisance, negligence, trespass, strict liability, and unjust enrichment, as well as contractual claims. 10.2 Exemplary or Punitive Damages Punitive damages for environmental violations are generally not imposed unless there is an intentional wrongdoing of egregious nature. Courts generally have discretion to impose punitive damages. However, certain environmental statutes include statutory penalties, which are not discretionary. For example, the Spill Act includes a provision for treble damages under certain circumstances, such as where a party failed to comply with an order from the NJDEP. The statutory penalties are generally are imposed automatically and serve a similar purpose as puni- tive damages – to penalise non-compliance and deter future violations. 10.3 Class or Group Actions Class action lawsuits are permitted in New Jersey for environmental-related civil claims if the court finds the requirements for maintaining a class action are met. 10.4 Landmark Cases New Jersey has been a leader in environmental law and has heard several landmark environmental law cases. There have been a number of landmark cases over the years concerning the applicability of the Spill Act, specifically addressing issues such as retroactiv- ity, the nexus required for liability, liability allocation, and sovereign immunity.
• In New Jersey Department of Environmental Protection v Ventron Corporation , the New Jersey Supreme Court ruled that the Spill Act could be applied to parties responsible for environmental contamination retroactively (94 N.J. 473 (1983)). • In New Jersey Department of Environmental Pro - tection v Dimant , the Superior Court, Appellate Division, addressed the nexus required for liability, holding that past owners are only liable under the Spill Act if they owned the property at the time of discharge and there is a nexus between the discharge and site for which cleanup and related costs are incurred (18 N.J. Super. 530 (App. Div. 2011)). • In Magic Petroleum Corp. v Exxon Mobil Corp. , the New Jersey Supreme Court held that a property owner or responsible parties may file contribution claims under the Spill Act and a court may allocate liability before the final resolution of a site remedia- tion plan (218 N.J. 390 (2014)). • In NL Industries Inc. v State , the Superior Court, Appellate Division ruled that the state cannot be held liable for claims under the Spill Act aris- ing from discharges prior to the adoption of the Spill Act, further explaining the Spill Act does not retroactively waive the state’s sovereign immunity for discretionary governmental activities (42 N.J. Super. 403 (App. Div. 2015)). 11. Contractual Agreements 11.1 Transferring or Apportioning Liability Generally, parties in New Jersey may contractually transfer or apportion liability for environmental matters or conditions. However, such transfers are ordinarily only applicable as between the parties, rather than granting full immunity against governmental enforce- ment of state or federal environmental laws. Specifically, a party may agree to immunise or hold another party harmless for environmental conditions arising out of the indemnifying party’s operations on site. This is most often seen in purchase sale agree- ments for the acquisition of a potentially contaminated property. However, while such contractual provisions can determine the liability of the parties as between themselves, it may not resolve liability owed to third
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