Posted on January 10, 2017 by Kenneth Mack
On December 19, both houses of the New Jersey Legislature adopted a resolution proposing an amendment to the New Jersey Constitution which would basically gather all Natural Resource Damages funds into a single account or in the words of the resolution:
“credit annually to a special account in the general fund an amount equivalent to the revenue annually derived from all settlements and judicial and administrative awards relating to Natural Resource Damages collected by the State in connection with claims based on environmental contamination.”
These amounts would be “dedicated” and
“appropriated … by the legislature, for paying for costs incurred by the State to repair, restore or replace damaged or lost natural resources of the State or permanently protect the natural resources of the State, or for paying the legal or other costs incurred by the State to pursue settlements and judicial and administrative awards relating to natural resource damages.”
Up to ten percent of the monies so appropriated could be expended for — you guessed it — “administrative costs of the State or its departments, agencies, or authorities for purposes authorized in this paragraph.”
By way of background, the New Jersey Spill Act declares the State to be “the trustee, for the benefits of its citizens, of all natural resources within its jurisdiction” (N.J.S.A. 58:10-23.11a). In the last (Democratic) State administration, the State brought a number of massive suits, notably involving the Passaic River and ExxonMobil, which resulted in some 355 million dollars in settlements. The proceeds of the settlements were used by the Christie administration to balance otherwise deficit ridden State budgets. Although these shortfalls were caused mainly by the expenditures of the very same legislators (and their antecedents), this budgetary gap- plugging by a Republican was pilloried by the Democratically-held legislature (among others). The legislature nonetheless approved the transfer of these monies to the State’s general fund, making them usable for any purpose. NGOs and, to some extent, municipalities in which the natural resource damages occurred, complained that not much was being spent on the environment, in general, or “restoration” projects in such municipalities, specifically. Under New Jersey law, the only way to stop the Governor or legislators from “raiding” such recoveries at will is by way of constitutional amendment, so an effort to adopt one was necessary. Hence, these resolutions.
A number of the most significant recoveries were obtained via (amply compensated) outside counsel. Thoughtfully, the proposed amendment includes a provision allowing for the compensation of such counsel in pursuing natural resource damages on behalf of the State. At least one NGO had another idea, and advocated that the New Jersey Department of Environmental Protection (“DEP”) be empowered simply to assess Natural Resource Damages, thereby avoiding any expense for outside counsel or, presumably, such mundane concerns as due process and like concepts. Thus the inclusion of the phrase “administrative awards” in the proposed amendment.
Since the resolutions were adopted by a super majority of both houses, the amendment will now be put to a State-wide vote next November. Whether it will actually be adopted remains to be seen.
And what sort of projects might be funded by these monies? Recently, the DEP announced the award of a number of grants totaling $53 million to communities along the Passaic River, Raritan Bay, and tributaries, mostly drawn from settlement monies received in its Passaic River litigation. These grants resulted from a “competitive process” and are largely, although not entirely, intended to enhance public access to these polluted waterways. The various “improvements” to be funded by these grants include parks, elevated riverine walkways, docks, boathouses and launches, parking lots, and, in the town of Harrison, a “food truck plaza”, along with “wetland creation.” Presumably then, at least in the view of DEP, preservation of food trucks goes hand-in-hand with natural resource protection.
Hey, it’s Jersey, you got a problem with that?