Top Environmental Law Developments of 2018

From Shifting Regulatory Policy to Precendential Court Decisions, Here are the Top Environmental Law Developments of 2018

From shifting regulatory policy to precedential court decisions, environmental issues can significantly impact New Jersey businesses. In 2018, the Scarinci Hollenbeck Environmental and Land Use Practice tracked several significant environmental law developments, both on the state and federal level.

Below is a brief summary of the top developments, along with some predictions for the new year.

New Jersey Developments

HDSRF Program: In January, Gov. Chris Christie signed legislation that makes it more difficult for New Jersey entities to obtain financial assistance for the remediation of contaminated sites from the Hazardous Discharge Site Remediation Fund (HDSRF). Most notably, the new law removes the Innocent Party Grant from the realm of grants offered under the HDSRF program. The new law also eliminates the availability of grants and loans to persons who would otherwise not be eligible for assistance, but who remediate a site using innovative technology or who remediate to a limited restricted use standard. The amendments also establish caps on grants to municipalities, counties, and redevelopment entities for projects in brownfield development areas.

Amended Site Remediation Rules: New Jersey Department of Environmental Protection (NJDEP) overhauled its regulations governing site remediation this year. One of the most significant revisions makes it more difficult for corporate officials to avoid personal liability for contamination/site cleanups. More specifically, the DEP has explicitly added “responsible corporate official,” which includes LLC managing members and partnership general partners, to the definition of “person” for site remediation enforcement. The NJDEP also adopted amendments to the Discharges of Petroleum and Other Hazardous Substances (DPHS) rules (N.J.A.C. 7:1E); New Jersey Pollutant Discharge Elimination System (NJPDES) rules (N.J.A.C. 7:14A); Underground Storage Tanks (UST) rules (N.J.A.C. 7:14B); Industrial Site Recovery Act (ISRA) Rules (N.J.A.C. 7:26B); Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) (N.J.A.C. 7:26C); and Technical Requirements for Site Remediation (Technical Requirements) (N.J.A.C. 7:26E). You can find a detailed discussion here.

Renewable Energy: In May, Gov. Phil Murphy signed environmental legislation into law (Assembly Bill 3723) that sets ambitious goals for renewable energy, increasing the target of the state’s renewable portfolio standard to 50 percent by 2030. It also includes cost caps that ensure energy costs to consumers don’t increase by more than 7 percent. The new law also directs the Board of Public Utilities (BPU) to wind down the existing solar program and establish a new one. At this point, it is unclear how the BPU plans to handle the transition. However, big changes are likely coming to New Jersey’s solar industry.

National Resource Damages: In August, for the first time in a decade, New Jersey filed six new lawsuits seeking to recover natural resource damages. As detailed in greater depth here, Attorney General Gurbir S. Grewal and NJDEP Commissioner Catherine R. McCabe called it a “new day” for environmental enforcement in New Jersey. The New Jersey Legislature is also moving to dedicate more than $160 million received from two natural resource damage claims, including N.J. Dep’t of Env. Protection v. Exxon Mobil Corp.

Environmental Justice Initiative: In December, Attorney General Grewal and Department of Environmental Protection Commissioner Catherine McCabe announced the filing of eight separate environmental contamination lawsuits. The suits are the result of a new “environmental justice” initiative designed to address pollution and environmental hazards in minority and lower-income communities across the state. In connection with announcing the eight environmental lawsuits, Attorney General Grewal also revealed that his office is restructuring a new unit to bring additional focus to environmental justice issues. The section, to be called the “Environmental Enforcement and Environmental Justice Section,” will repurpose existing resources and hire additional attorneys to bring enforcement actions and promote environmental justice across the state.

Federal Developments

Groundwater Under CWA: The U.S. Supreme Court will likely intervene to resolve disputes over the limits of groundwater contamination liability under the Clean Water Act (CWA). A circuit split developed this year with the Sixth Circuit Court of Appeals ruling that two power plants did not violate the CWA when contaminants from their coal ash ponds leached into the local groundwater. The circuit split creates significant regulatory uncertainty for entities that discharge wastewater and potentially stormwater through processes that allow the discharges to infiltrate groundwater and reach CWA “navigable waters.” At this point, it is unclear what test courts, such as the Third Circuit, will apply when assessing whether groundwater discharges fall under the CWA. Until the EPA’s WOTUS rule is final and/or the Supreme Court intervenes, questions regarding the connection needed between a point source and navigable waters will continue to generate litigation.

Offshore Drilling: In February, the Department of the Interior (DOI) published its proposed five-year offshore drilling plan. As drafted, it would open almost the entire offshore area of the United States to oil and gas drilling. Not surprisingly, the 2019-2024 National OCS Offshore Oil and Gas Leasing Program is facing legal challenges. In New Jersey, a new law, Assembly Bill 839, bans offshore oil or natural gas exploration, development, and production in New Jersey waters. It further prohibits the leasing of tidal or submerged lands in State waters for the purposes of oil or natural gas exploration, development, or production.

Vehicle Emissions: The Trump Administration is working to rollback rules to impose stronger fuel-economy standards on light-duty vehicles. Beginning in 2010, the EPA, the National Highway Traffic Safety Administration (NHTSA), and the California Air Resources Board established a single national program of greenhouse gas emissions standards for model year 2012-2025 vehicles. Under the Obama-era regulations, the standard for average fuel efficiency would increase to 54.5 miles per gallon by 2025. In August, the EPA and NHTSA released a notice of proposed rulemaking, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule). It calls for freezing the model year 2020 standards of 35 miles-per-gallon through 2026. The proposed rule also calls for a national emissions standard, which would revoke the authority of states like California to enact tougher emissions standards. New Jersey Attorney General Grewal is one of 21 attorneys general who submitted a comment letter to the EPA that called on the agency to reconsider the SAFE Vehicles Rule.

Cleaner Truck Initiative: In November, the EPA announced the Cleaner Truck Initiative (CTI). The centerpiece of the initiative is a forthcoming rulemaking to decrease emissions of nitrogen oxide (NOx) from heavy-duty trucks and engines. According to the EPA, the new rulemaking will lower emissions, while also streamlining regulatory compliance. The EPA intends to publish a proposed rule in early 2020 after engaging with stakeholders.

Clean Water Rule: In December, the EPA and the Department of the Army (the agencies) unveiled their much-anticipated definition of “waters of the United States,” which would reshape federal authority under the Clean Water Act (CWA). Under the  proposed WOTUS rule, ephemeral tributaries, which are caused by rain or snow, would be excluded. In addition, fewer ponds, lakes, wetlands, and ditches would be subject to CWA jurisdiction. The agencies are now accepting public comments. In addition to possible revisions before it becomes final, the WOTUS rule will also likely face legal challenges.

Looking Ahead to 2019

Under President Donald Trump, the EPA continues to relax environmental regulations and face legal challenges for doing so. Meanwhile, in New Jersey, Gov. Phil Murphy is ramping up enforcement. These trends are likely to continue in the new year. Given the continuing regulatory uncertainty on many of the above environmental issues, we encourage members of the regulated community to stay informed and contact an experienced environmental law attorney with any concerns.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.