August 22, 2022

Progressive New Jersey, Take Two

Posted on August 22, 2022 by Dennis Krumholz

Classical advice for the neophyte novelist is to “write what you know.”  Well, the same ought to hold true for blogs.  And rather than “staying in Vegas,” what happens in New Jersey ought to serve as a model of what other states also may be able to achieve.

In last year’s blog, I recited examples demonstrating New Jersey’s historic leadership in addressing industrial environmental problems.  For example, enactment of the state’s Spill Compensation and Control Act not quite 50 years ago preceded CERCLA, and the Environmental Cleanup Responsibility Act (ECRA, now ISRA) remains, after nearly 40 years, a unique national model for private party remediation of contaminated sites. 

New Jersey’s leadership continues.  Just last year, the state enacted a series of laws to remediate lead contamination in residences and water pipes.  In fact, acting with extraordinary speed, earlier this year the City of Newark completed the replacement of all 23,000 lead service lines, ensuring safer drinking water to its residents.  Of special note was the enactment in 2020 of legislation to address environmental justice through the permitting process for potentially polluting facilities that are to be located in “overburdened communities.”  The New Jersey Department of Environmental Protection currently is in the public comment period of adopting implementing regulations for this pathbreaking program. 

In two recent noteworthy decisions, separate New Jersey federal courts refused to grant motions to dismiss claims brought by the NJDEP under the Spill Act against out of state manufacturers of contaminants that, following sale as useful products, ultimately were discharged by others inside the state.   If these decisions stand, they would expand site remediation law to encompass a class of entities excluded from liability under CERCLA and not heretofore included as parties ‘in any way responsible’ under the Spill Act.

As is the case throughout the country, New Jersey is suffering from the impacts of climate change.  Last year, the state lost thirty lives and suffered significant property damage as a result of the tornadoes and sudden rainfall brought by Hurricane Ida.  This summer has seen four successive heat waves and a lengthy river algal bloom which impacts drinking water supplies.  Arid conditions are diminishing crop yields, a recent wildfire destroyed thousands of acres in the Pinelands, the first federal reserve, and the Commissioner of the NJDEP declared a statewide drought watch earlier this summer. 

As I noted last year, sea level is markedly rising at the Jersey Shore, and land temperatures are rising faster than in any other state.  This year, it was determined that rising ocean temperatures are diminishing fishing catches, and the sea level rise is drowning salt water marshes, which protect shorelines from erosion and reduce flooding by absorbing rainwater.

New Jersey is not sitting idly by.  The state’s master energy plan requires generation of 100% clean energy by 2050, and pending legislation would shorten that time period by five years.  By Executive Order, the Governor tasked the NJDEP several years ago with updating land use regulations to address flood hazard and storm water management in light of increased precipitation and sea level rise.  These will require new and rebuilt structures to conform with more stringent design standards that take into consideration new conditions resulting from global warming. 

Local planning is being reconsidered as the need for regional, rather than municipal, watershed planning becomes apparent.  The state is contemplating the creation of stormwater utilities to address more frequent flooding and reduce polluted surface runoff.  A program to buy out homes located in flood-prone areas helps families relocate to safer places and increases storage for flood waters.

As I noted last year, the state is developing three offshore wind projects, expected to generate enough electricity to power more than one million homes, and facilities for the manufacture and assembly of wind turbines.  Recently, the Governor announced the investment of millions of dollars to electrify trucks and buses and to construct additional electric vehicle fast-charging stations.

The recent surprise enactment of the federal Inflation Reduction Act is a welcome development in the effort to forestall further impacts of a rapidly warming planet.  But states themselves must continue to develop their own programs to mitigate the impacts of climate change if the world is going to have any chance to meet the requirements of the Paris accords.