published articles

"N.J.'s Environmental Rights Act" Published March 3, 2014

"Private Enforcement: N.J.'s Environmental Rights Act" published March 3, 2014.

By Stephen Hankin

Attorneys are often confronted by clients objecting on environmental grounds to various forms of development either because of the absence of a permit, permit non-compliance or some other form of regulatory or ordinance-based violation. Complaints are equally common based upon petroleum or other hazardous waster spills or improper maintenance or closure of landfills. On many occasions those who wish redress are personally unaffected in the sense they suffer no special or particularized property interest which third party objectors must have to secure an adjudicatory hearing under the Administrative Procedure Act, N.J.S.A. 52:14B-3.2.

The Environmental Rights Act (ERA), N.J.S.A. 2A:35A-1 et seq. constitutes New Jersey's invitation to all private parties to maintain actions to enforce or restrain the violation of environmental statutes and ordinances, with the right to recover counsel and expert fees, when the New Jersey Department of Environmental Protection (DEP) or other jurisdictional political subdivision is either unwilling or unable to do so or if its effort . . . proves insufficient. Superior Air Products, Co. v. N.L. Industries, Inc., 216 N.J. Super 46 (App. Div. 1987). Indeed, the principles underlying the ERA are so strong that [n]o one - not even those who have not cooperated with the DEP or ERA - should be precluded from asserting the public's rights . . . Allied Corporation v. Frola, 730 F. Supp. 626, 636 (D.N.J. 1996), abrogated on other grounds, Apgar v. Lederle Laboratories, 123 N.J. 450 (1991).

Except for an award of counsel and expert witness fees, the ERA does not create any substantive rights. Instead, its purpose is limited to conferring standing on any private persons to pursue polluters. Ironbound Health Rights Advisory Comm. v. Diamond Shamrock Chemical Co., 216 N.J. Super 166, 174 (App. Div. 1987); Player v. Motiva Enterprises, LLC, WL 166452 (D.N.J. January 20, 2006), aff'd 240 Fed. Appx. 513 (3rd Cir. 2007). Moreover, the ERA applies to environmental laws passed both before and following its December 9, 1974 effective date. Dept. of Transportation v. PSC Resources, Inc., 159 N.J. Super. 154, 162-163 (L. Div. 1978), and may be enforced against all persons, including a governmental entity if it [is] a ëpolluter'. Ironbound Health Rights Advisory Comm. v. Diamond Shamrock Chemical Co., 216 N.J. Super 166, 173 (App. Div. 1987).

This article primarily focuses upon a 3-step analysis in which practitioners should engage before filing an ERA action.

The ERA's Scope

The first determination which must be made is whether the nature of the environmental complaint is one which the ERA protects.

The ERA can be utilized for any statute, regulation or ordinance which is designed to prevent or minimize pollution impairment or destruction of the environment. N.J.S.A. 2A:35-4A. This includes actual pollution, impairment or destruction to any . . . natural resources and includes air pollution, water pollution, excessive noise, improper disposal of refuse, impairment and eutrophication of rivers, streams, flood plains, lakes, ponds, or other water resources, destruction of seashores, dunes, wetlands, open spaces, natural areas, parks or historic areas. N.J.S.A. 2A:35A-3.

Because by express provision the ERA is to be liberally construed, N.J.S.A. 2A:35A-13, this legislation undoubtedly applies as well to laws whose purpose is embedded in scenic beauty. Compare The Natural Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., under which a project is impact upon recreational resources and visual quality has been declared as critical. La Flamane v. Federal Energy Regulatory Commission, 852 F. 2d 389, 399 (9th Cir. 1988). Thus, for example, a municipal ordinance regulating roadside billboards adjacent to the wetlands, whose purpose is generally based upon aesthetics, would appropriately be encompassed by the ERA. See United Advertising Corp. v. Borough of Metuchen, 42 N.J. 1, 5 (1964) (noting a billboard does not belong in . . . places of scenic beauty). Indeed, any ordinance rationally related to a municipality's legitimate, aesthetic goals of preserving vistas, discouraging development that competes with the natural environment and promoting the character of the community will likely be embraced by the ERA. See Hoboken Environmental Committee, Inc. v. German Seaman's Mission of New York, 161 N.J. Super 256, 262 (Ch. Div. 1978) (noting the ERA focuses upon minimizing harm to the natural environment).

An ERA action can also be maintained even where the conduct complained of does not violate an existing statute, rule or regulation or ordinance provided they do not establish a more specific standard so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare. N.J.S.A. 2A:35A-7. Put more simply, although based upon non-codified principles under common law the function of the courts is clear - they are required to . . . adjudicate the impact of conduct on the environment in the interest of the public . . . Tp. of Howell, supra, 207 N.J. Super at 94, citing N.J.S.A. 2A:35-7b. See Patterson v. Vernon Twp. Council, 386 N.J. Super. 329 (App. Div. 2006) (action commenced under non-codified common law principles pursuant to N.J.S.A. 2A:35A-4b against Township in unsuccessful attempt to compel it to place municipally-owned site on Historic Registry).

Mandatory Pre-Suit Notice

Once it is determined that the nature of environmental harm is embraced by the ERA, the next step is to comply with the ERA's pre-suit notice requirement.

The ERA explicitly requires that any claimant shall, at least 30 days prior to commencement [of suit], direct a written notice of such intention by certified mail, to the Attorney General, the Department of Environmental Protection, the governing body of the municipality in which the alleged conduct occurred and to the intended defendant. N.J.S.A. 2A:35A-11. The purpose of this Notice requirement is to afford the responsible agency with the opportunity to take action because as we briefly discussed in greater detail, private citizens may only avail themselves of the ERA when the State agency has failed or neglected to act in the best interest of the citizenry or has arbitrarily, capriciously or unreasonably acted. Tp. of Howell, supra at 96. Indeed, this notice requirement was designed to allow [the government] to exercise value judgments. . . Id. at 94.
Pre-suit notice may be waived upon proof that immediate and irreparable damage will probably result. N.J.S.A. 2A:35-11. To secure a waiver, actual or direct injury to the public health or environment may not be required where there is an uncontested violation of a statute, regulation or ordinance. See State Dept. of Environmental Protection v. Interstate Recycling, Inc., 267 N.J. Super. 577-578 (App. Div. 1993) (the violation of an environmental law ipso facto constitutes irreparable harm). Thus, for example, a waiver would be appropriate in the instance of development without a required permit under the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq. given its purpose to protect the unique and fragile coastal zones of the State. In re Egg Harbor Assoc. (Bayshore Center), 94 N.J. 358, 364 (1983). However, the best practice dictates that counsel persevere and provide notice to avoid an unnecessary and very appealable issue.

The Absence or Inadequacy of Governmental Action

The third and final step in determining whether an ERA claim is appropriate involves evaluation of what, if anything, the government may have accomplished.

The ERA is an alternative to inaction by the government which retains primary prosecutorial responsibility. Superior Air Products Co. v. N.L. Industries, Inc., 216 N.J. Super. 46, 58 (App. Div. 1987). The Act does not intend to sacrifice the paramount right of the state to control such action through its delegated agency. Tp. of Howell, supra at 93. However, even where the DEP or a municipality enforces its environmental statutes or ordinances a private cause of action may still lie if the effort . . . proves insufficient. Superior Air Products Co., supra at 58. Whether the primary political subdivision, in a given situation, has exercised properly its preemptive jurisdiction should be resolved by the court when it its asserted that [it] has failed in its mission, neglected to take action essential to fulfill an obvious legislative purpose, or where it has not given adequate and fair consideration to local or individual interests. Tp. of Howell, supra at 96.

Thus, private enforcement may proceed if the DEP fails to act or fails to seek less than full relief under the legislation in issue. Counsel should accordingly be mindful of the available remedies each relevant law may afford the enforcing agency. See, for example, Port of Monmouth Development Corp. v. Middletown, 229 N.J. Super. 445 (App. Div. 1988), certif. den. 115 N.J. 59 (1989) (ERA claim permitted where the DEP filed a notice of prosecution and came to an agreement with the defendant township regarding the proper closure of a landfill but had taken no legal action or imposed monetary penalties); Morris County Transfer Station Inc. v. Frank's Sanitation Service, Inc., 260 N.J. Super 570 (App. Div. 1992) (ERA claim allowed where DEP issued a Notice of Violation but after 3 years failed to take action to bring a waste hauler to compliance); Mayor and Council of the Borough of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1054 (D. N.J. 1993) ([a] private plaintiff is not precluded from bringing an action merely because a governmental agency has taken some action. . .).