A Swing of the Pendulum?

Posted on March 30, 2012 by John A. McKinney Jr

It’s long been posited that as courts become more familiar with environmental remediation cases, they will be less likely to defer to a regulator’s overstated claims of environmental harm or assertions of environmental liability.  Instead, courts will require proof rather than conclusory evidence masquerading as a fact.  A recent case in New Jersey, where the state law akin to CERCLA is the Spill Compensation and Control Act (“Spill Act”), may be the harbinger of similar decisions elsewhere.

In New Jersey Department of Environmental Protection v. Dimant, 418 N.J.Super. 530, 14 A.3d 780 (App.Div. 2011), the intermediate appellate court reviewed a trial court decision on liability for remediation of a 365 acre site contaminated predominantly with perchloroethylene (PCE), a cleaning solvent and degreaser.  The site included residences, dry cleaners, and a former gas station site, with two federal Superfund sites nearby.  The NJDEP had observed a pipe dripping PCE years earlier at a defendant’s property, and it contended that the defendant was strictly liable for the cost of remediating the 365 acres even if the hazardous substance discharge was de minimis.  Instead, the trial court ruled that it is not enough to show a discharge, and that damages from the discharge must also be shown.  In other words, there must be a “nexus” between the contamination being remedied and the actual discharge.  The appellate court agreed, opining that a plaintiff seeking to prevail must “demonstrate that the defendant had some connection to the damages caused by the PCE contamination, or had added to any contamination already caused by past operation.”

Both this decision and that below are examples of a court going back to basics.  Causation cannot be presumed.  Discharges must be tied to damages.  The failure to prove a nexus to the damages sought will not be ignored in a rush to judgment or under the guise of facilitating cleanups.  Prove the case or watch out!  But the New Jersey Supreme Court has granted certification on the strict liability issue, and so we will soon see how far that pendulum has swung.