Lawmakers Look to Create Standard Penalties for Polluters

By developing a sliding scale for damage to natural resources, state would have a better chance to compel ‘bad actors’ to clean up pollution

Credit: Joe Loong
ExxonMobil's former Bayway refinery in Linden
The state is seeking ways to shore up how it assesses damages to natural resources when polluters contaminate New Jersey’s waters, wildlife, and land.

By establishing clear and objective standards, the state would have an easier time of prying the money needed to restore drinking-water supplies, habitats, and other natural resources from the companies whose spills and other actions harmed them, environmental advocates say.

To that end, Sen. Bob Smith, the Democratic chairman of the Senate Environment and Energy Committee, said he plans to set up a stakeholder process to try to come up with a workable mechanism that would set such standards.

The issue is hotly debated — in part, because past efforts by the state to hold polluters accountable for natural resources restoration have been mixed, much to the frustration of local communities and environmentalists.

Critics cite the case of ExxonMobil, which polluted more than 1,500 acres of marshes and water at two refineries in Linden and Bayonne. The state originally sought $8.9 billion in damages from the company in a decade-old natural-resources damage lawsuit, but ended up settling the case for $225 million.

Although the settlement was lambasted by environmentalists and lawmakers, the Christie administration defended it, saying if the case wound up being settled by a court, New Jersey might not even have received the smaller sum.

The staff of the Office of Legislative Services has been trying to come up with standards to assess damages in natural resources cases for the past two years, according to Smith.

A difficult struggle

“It’s a struggle. It’s a tough, tough area,’’ Smith said. So he is turning to a process he used to help reach consensus on another contentious environmental issue —guaranteeing public access to the state’s beaches and waterfronts. That stakeholder group agreed on a bill that is now making its way through the Legislature, Smith noted.

“Frequently, judges don’t have a problem assessing liability,’’ Smith said of natural-resources damage cases. “The problem is damages — when judges evaluated damages they can’t be speculative.’’

The issue is likely to emerge more prominently with a new administration and a new attorney general, who has indicated he plans to file new natural-resources damage claims, according to Smith. Not one new NRD case was filed in the past eight years, he noted.

“There (are) probably 500 property owners who get into the category of bad actors,’’ Smith said. “There’s no statue of limitations. If we get the NRD thing into the point it is really humming, they will be cleaning up those sites.’’

Once the stakeholder group is appointed, Smith hopes it can come up with a framework that could be developed into legislation in approximately three months, likely sometime in the fall.

Meanwhile, the state Supreme Court decided last week not to hear an appeal of the settlement brought by environmental groups and former Sen. Raymond Lesniak. That effectively means the $225 million from the ExxonMobil settlement will be allocated this way: $125 million will go into the general fund; $50 million will pay lawyers from an outside firm hired to litigate the case; and $50 million will go to various environmental programs.