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Appellate Court Revives Strict Liability and Common Law Claims for Natural Resource Damages Brought on behalf of the State of New Jersey

On April 7, 2020, a New Jersey appellate panel reversed the trial court’s dismissal of the strict liability claims that Kanner & Whiteley brought on behalf of the New Jersey Department of Environmental Protection and the State of New Jersey. New Jersey’s claims related to defendants Hess Corporation and Buckeye Partners, LP’s unlawful discharge of hazardous substances and the resulting damages to the natural resources of the State of New Jersey.

In its opinion, the appellate panel reaffirmed that all of New Jersey’s common law claims are available under the New Jersey Spill Act and, contrary to the trial court’s determination, are not “subsumed within the Spill Act.” The panel noted that “the ability to pursue relief under both the Spill Act and common law was consistent with the Legislature’s intention to grant the DEP ‘broad implied powers’ to prevent environmental contamination.” The court also found that New Jersey sufficiently alleged that defendant Hess maintained an abnormally dangerous activity through its storage and processing of petroleum, which is required for alleging a common law cause of action for strict liability.

And with regard to the State’s public nuisance claim, the Appellate Division found that the trial court erred in limiting the State’s potential relief to only injunctive relief. The court restored the State’s “ability to otherwise seek ‘monetary relief’ associated with any judgment ordering abatement of a public nuisance, if plaintiffs succeed on their claim.”

This action was among six environmental suits the State of New Jersey launched August 1, 2018, including the first natural resource damage case to be filed by New Jersey since 2008. To read more about the State’s appeal, refer to our previous post here, as well as Law360’s coverage of the win here.

The case is New Jersey Department of Environmental Protection et al. v. Hess Corp. et al, case no. A-002893-18, in the Superior Court of New Jersey, Appellate Division.

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