Appellate Division Sheds Light on Statutory and Common Law Claims in Environmental Cleanup Cases | New Jersey Law Journal

Appellate Division Sheds Light on Statutory and Common Law Claims in Environmental Cleanup Cases | New Jersey Law Journal


In 1969 Hess Oil spilled 8 million gallons of crude oil into the tidal Smith Creek and the Arthur Kill which runs between New Jersey and Staten Island, New York.  Other "discharges" of waste occurred in 1990 and 1992.  In an action filed in 2018 [!?] the state sought damages on multiple theories.
Common law trespass is not available to the State in an action against a polluter of rivers and streams, the Appellate Division of Superior Court held in New Jersey Department of Environmental Protection v. Hess Corporation.  As two environmental practitioners note the implications are not fully developed.  They report that "the State  filed a complaint seeking damages, injunctive relief and declaratory relief under the Spill Act, along with common law claims sounding in public nuisance, trespass and strict liability. These claims arose out of the environmental contamination of property formerly operated as an oil refinery and terminal."


Reversing the trial court's dismissal in the main the panel's most interesting conclusion is not that common law nuisance and strict liability survive the State's Spill Act.  But that trespass is unavailable because the State holds the rivers and streams in trust and therefore does not have the exclusive possession that underlies  common law trespass.


The plaintiff DEP argued that the State holds "water resources as trustees of the State, that they have a parens patriae responsibility to protect its resources, and any pollution of public waters constitutes a trespass".  The panel rejected that argument. Parens patriae is the doctrine under which public access to ocean front beaches has been preserved in New Jersey law.  But the court, saying the issue had not been raised below, took another tack.  It explained:

Under New Jersey law, "[a]n action for trespass arises upon the unauthorized entry onto another's property, real or personal." Pinkowski v. Township of Montclair, 299 N.J. Super. 557, 571 (App. Div. 1997). A trespass requires that the invasion be to land that is in the exclusive possession of the plaintiff. [State DEP v.] Ventron, 94 N.J. at 488-89 [1980]. Land in the public trust is held by the State on behalf of a second party, the people. Such land cannot be in "exclusive possession" of the State as the interest created by the doctrine is intended to ensure that others have use of the same land. It does
not grant to the State the exclusive possession of property.

Because it was decided by a two judge panel the opinion is unpublished [2020 N.J. Super. Unpub. LEXIS 622] and therefore of limited precedential weight.  But the discussion of remedies is thorough.  Because nuisance and New Jersey's strong strict liability for environmental torts doctrines stand its impact is limited.  But the implications that the common law trespass doctrine is unavailable to a public trustee is noteworthy and the sort of thing that students looking for a Note topic could seize upon.  Teachers too.  - GWC