Eight Key Federal and New Jersey Environmental Law Developments From 2017

Federal and New Jersey Environmental Law Roundup for 2017

From regulatory changes to new court precedents, environmental issues can significantly impact New Jersey businesses. In 2017, the Scarinci Hollenbeck Environmental and Land Use Practice tracked several significant environmental law developments, both on the state and federal level.

• Leadership Change at the EPA: The Environmental Protection Agency (EPA) has made several controversial policy changes under the leadership of Administrator Scott Pruitt. Shortly after being appointed, Pruitt amended the delegations of authority under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to pull back to the Administrator’s Office the authority to issue remedy selection decisions when the estimated cost of the remedy exceeds $50 million. In November, Pruitt announced an agency-wide directive to end “sue and settle” practices that involve the settlement of litigation intended to effect regulatory changes.
• CERCLA Statute of Limitations: In ASARCO LLC v. Atlantic Richfield Co., the Ninth Circuit held that non-CERCLA settlements do enable settling parties to assert CERCLA contribution claims and trigger the three-year statute of limitations, siding with the Third Circuit on an issue that has divided the federal courts of appeal. The Ninth Circuit further addressed what is required to “resolve liability” for purposes of CERCLA Section 113(f)(3)(B), breaking with the Sixth and Seventh Circuits to adopt a new “certainty and finality” standard.
• Superfund Sites: The EPA has made the remediation of Superfund sites a top priority. A Superfund Task Force was created to make recommendations on how to “restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups and sites and promote the revitalization of properties across the country.” In its first report, the task force recommended targeting NPL Sites that are not showing sufficient progress towards site cleanup and completion. 
• Waters of the United States: The EPA and Army Corp of Engineers are seeking to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to 2015 defining “waters of the United States” (WOTUS). In October, the U.S. Supreme Court heard oral arguments in National Association of Manufacturers v. Department of Defense, which will determine whether lawsuits challenging the rule should have been filed in federal district courts, or courts of appeals.
• Federal Flood Risk Management StandardRevoked: In September, President Donald Trump rolled back certain construction requirements applicable to federally-funded projects located in flood-prone areas. The Executive Order revoking the Federal Flood Risk Management Standard generated headlines because it came just days before Hurricane Harvey left most of Houston underwater. Supporters of the executive order argue that costly regulations pose a bigger threat than rising sea levels. Meanwhile, critics, which include environmentalists, planners, and flood-plain managers, contend that lowering the standards for building in flood-prone areas will be costlier in the end. 
• New Jersey Voters Approve Question Two: In November, New Jersey voters approved a constitutional amendment intended to prevent lawmakers from diverting funds from environmental settlements. The resolution (SCR-39) amends the New Jersey Constitution to dedicate all State moneys received from settlements and awards in cases of environmental contamination relating to natural resource damages for certain environmental purposes. The moneys will now have to be used to “repair, restore, replace, or preserve the State’s natural resources, and may also be used to “pay legal or other costs incurred by the State in pursuing its claims.”    
• Contribution Claims Under New Jersey Spill Act: In Matejek v. Watson(N.J. Super. Ct. App. Div., Mar., 3, 2017), the Appellate Division of the New Jersey Superior Court held that a property owner may compel neighboring property owners to share in the costs of investigating potential environmental contamination prior to establishing liability for the pollution. The decision may spur an uptick in contribution suits under the New Jersey Spill Compensation and Control Act.
• Highlands Septic Density Standards: The New Jersey Legislature is moving forward with efforts to invalidate a rule enacted by the New Jersey Department of Environmental Protection (DEP) earlier this year. The regulation amends the septic system density standards in the Highlands Water Protection and Planning Act Rules, thereby allowing for continued land development in the region.

Of course, this post offers only a brief review, so if you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.