Supreme Court Limits Right to Pursue Polluters

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by: Joseph Grather

27 Sep 2012

Yesterday, the New Jersey Supreme Court affirmed a decision from the lower courts that had dismissed an action brought by the New Jersey Dep’t of Environmental Protection against a property owner for an alleged spill. NJDEP v. Dimant (A-2-11, September 26, 2012). A link to the full text of the opinion is here.

This decision is potentially significant in the real estate and environmental communities. In sum, the Supreme Court held unanimously that the NJDEP failed to establish a sufficient causal link between the alleged polluter of contaminated property and the contamination, but it also wrote to “clarify that the Spill Act does not require proof of the common law standard of proximate-cause causation of specific environmental damage as a precondition to relief under the Act.” (at 5).

The trial court made detailed findings of fact regarding DEP’s failure to establish a connection between the former owner and operator of a dry-cleaning business and the alleged groundwater contamination of the adjacent Bound Brook. The Supreme Court agreed with the lower court’s opinion that there has to be some nexus that “ties the discharger to the discharge that is alleged to be the, or a, culprit in the environmental contamination in issue.”

DEP’s wide net may have just gotten a little smaller. This decision may make it more difficult for the State to obtain contribution for environmental remediation costs of polluted properties. According to an article in the New Jersey Spotlight, this case may mark a weakening of the government’s power to force cleanups of contaminated properties, and while the case only involved a small business, it was closely watched by the business community at large, with several industry trade associations joining the case as friends of the Court.

Environmentalists were obviously disappointed in this ruling, and it will be interesting to see how it may affect the commercial real estate and redevelopment landscape in New Jersey in the years to come.