Opinion: ExxonMobil Case Slams Door on Legislators, Public-Interest Groups

R. William Potter | October 15, 2015 | Opinion
The judge’s rulings in critical environmental action amounts to declaring that ‘the state DEP knows best’

Credit: Amanda Brown
R. William Potter
On October 9, a judge slammed shut the courthouse door to environmental watchdog groups and a state senator seeking to ensure adequate funds for the cleanup of sites heavily polluted by energy giant ExxonMobil. In his ruling, Judge Hogan held that the Department of Environmental Protection “adequately represents” their interest in getting Exxon to finance the cleanup of its pollution.

Asserting that the Christie administration’s DEP knows what’s best for the state, the judge in the natural-resources damages (NRD) case refused to allow environmental groups and State Senator Ray Lesniak to intervene against the DEP’s plan to settle the state’s claim of $8.9 billion in pollution damage for a relative pittance of $225 million. That’s a lot money to most of us, but pocket change for Exxon.

The court employed a strain of logic straight out of the 1950s sitcom “Father Knows Best,” reasoning that because “the DEP adequately represents their interests,” therefore the coalition of statewide environmental groups — Sierra Club, Clean Water Action, Delaware Riverkeeper, and Environment New Jersey — would not be allowed into the case to contest the Exxon settlement.

In so doing, the judge — “temporarily assigned’’ and pulled out of retirement — paid lip service to New Jersey’s longstanding judicial policy that favors “liberal standing,” allowing public interest groups to initiate or join in lawsuits. The state’s open-door policy stands — or stood — in sharp contrast to the federal courts, which take a narrow view of whether someone has “standing to sue,” and thus a right to be heard in court.

The judge all but ignored this liberal state policy — enunciated in dozens of cases — and relied instead on federal court cases denying standing except in the narrowest category of cases in which would-be litigants had to survive byzantine tests of “standing.”

The fed’s strict standing policy is based on the U.S. Constitution and its “case or controversy” Article III requirement to show “subject matter jurisdiction” in a federal court.

But the New Jersey Constitution contains no such limitation. This distinction enabled the state Supreme Court — going back at least to a 1974 precedent — to flat out reject legal technicalities that would bar the court to parties representing noneconomic interests, such as protection of the environment.

Even more frustrating, the judge in this Exxon cleanup case rejected the use of the Environmental Rights Act (ERA) to confer standing to intervene. This Gov. Byrne-era statute proclaims that “every person” has a legally protected interest in preventing “the pollution, impairment and destruction of the environment, [and] that it is therefore, in the public interest to enable ready access to the courts for the remedy of such abuses.”

The court said the ERA didn’t apply because it is limited to preventing “future pollution,” even though it calls for citizen suits to “remedy such abuses,” clearly implying the ERA can be applied to the cleanup of past polluting actions requiring costly remediation.

Equally unsettling is the judge’s strained logic in concluding that Lesniak also lacked standing. The judge feared that allowing a state legislator into the case would “open a political Pandora’s box,” violating the “separation of powers” doctrine, and leading to “concentration of powers … and increase the potential for oppression” and loss of liberty.

This parade of horrible possibilities and outcomes seems fanciful, at best. But it was used to justify the senator’s exclusion, even as the judge disregarded the obvious: Whoever is allowed into court, be it a state legislator or an environmental watchdog group, the judge and only the judge decides who prevails, and not the parties. The court’s fear of “tyrannical oppression” as a result of permitting Lesniak into the case was wildly alarmist and not a basis for denying intervention into such an important case.

The most distressing aspect of these judicial rulings is the precedent they may set. If anytime the DEP goes to court, no one else will be permitted to intervene to watch the watchdog, then are we supposed to blindly trust a political appointee of the governor to represent us? Apparently so.

Let us hope the environmental groups and Lesniak appeal the trial court’s rulings all the way to the New Jersey Supreme Court if necessary to obtain a reversal of this troublesome decision. If Judge Hogan’s rulings are allowed to stand, it means the courthouse door could be barred to any public-interest group and activist legislator on the pretext that the DEP knows what’s best for all of us and will not be influenced by the governor’s political agenda.