Seeking Your Feedback on Natural Resource Damages

Christine Buteas, Chief Government Affairs Officer

This summer, I will be working with other stakeholders in a workgroup assembled by Senate Environment Committee Chairman Senator Bob Smith (D-17) to make recommendations concerning possible legislation related to natural resource damages (NRD) in New Jersey. I am seeking your feedback on any and all of the issues that I anticipate will be discussed during this process in July.

NRD are damages which the State seeks to collect through litigation when a business or corporation has caused natural resources to be harmed, typically via the release of hazardous substances. These damages are supposed to be used for repairing damaged sites, but have historically been diverted to the general fund for other purposes. A constitutional amendment approved by voters in 2017 requires that NRD collections now be dedicated to a separate fund from the general fund where they can only be used for restoring contaminated properties.

In the coming weeks, the workgroup is expected to consider the following questions related to NRD:

• How should groundwater contamination be addressed?
• Should there be a preference for restoration of natural resources (or an assessment of monetary damages equal to the cost of restoration) or damages that put a monetary value on the resource that has been harmed?
• Will the policy choices provide incentives to recalcitrant parties to clean up?  Will the policy choices promote behavior or precautions to prevent environmental injuries or the performance of prompt cleanups?
• Should liability for natural resource damages be imposed for discharges that occurred before the “Spill Compensation and Control Act” or other relevant State laws were passed?  Should damages be imposed when the activity, such as filling wetlands with clean fill, was legal and, in fact, encouraged?
• Should there be a preference for the use of outside counsel or the Attorney General’s Office to bring the State’s natural resource damage cases.  If an outside counsel is used, what is fair compensation for that counsel?
• How are other states addressing natural resource damages?
• How should the State use constitutionally dedicated moneys from natural resource damage settlements?

Your feedback on any or all of these questions would be greatly appreciated by Monday, July 9, 2018.  Please contact me at cbuteas@njbia.org.

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