LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 23
destroyed by a discharge.” 82 By enacting the Spill Act, the New Jersey Legislature intended to
create additional remedies to protect the environment and compensate the public. The absolute
liability provisions of the law are especially noteworthy. Defining natural resources to broadly
encompass a wide variety of resources has proven to be successful in addressing the problem of
scope with regard to any limitations upon NRD recovery.
2. Common Law Causes of Action
In addition to available statutory causes of action, state governments may pursue
common law causes of action to recover for NRD. 83
To protect or sometimes compensate a
natural resource held in common, the state may sue in its trustee capacity. In the case of natural
resources held by no one, the state may sue to enjoin under a public nuisance theory. Such
causes of action are especially useful to close the gap where federal statutes do not provide
adequate relief. 84
Public nuisance actions, for example, were traditionally used to obtain injunctive relief,
enjoining certain behavior deemed to constitute an “unreasonable interference with a right
common to the general public.” 85
Courts have increasingly held, however, that a state may
utilize public nuisance actions to recover response costs incurred in the abatement of such a
82 N.J.S.A. 58:10-23.11u.b(4).
83 For a more detailed discussion, see generally, Kanner, supra note 8.
84 Federal statutes are sometimes less desirable than other theories with regard to the recovery of NRD. CERCLA,
for example, has more defenses and involves a slow and rigid process, thus state law theories are often better.
Furthermore, a plaintiff may recover more damages bringing common law claims, rather than brining an action
under CERCLA.
85 RESTATEMENT (SECOND) TORTS § 821B (1979).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM