LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 24
nuisance. 86
If the state would like to recover for a pecuniary loss arising from contamination of
a natural resource, however, it must allege a “special injury.” 87
In New Mexico v. General
Electric Company, the court discussed what constitutes a “special injury”:
To satisfy the “special injury” requirement in this case and establish any
entitlement to compensatory damages on their common-law public nuisance claim,
the Plaintiffs must show that the State has suffered some discrete physical harm or
pecuniary loss apart from the more generalized injury to the public’s interest that
results from the public nuisance . . . Absent proof of some discrete “special
injury” to the State’s interest apart from the injury to the public’s interest in
unappropriated groundwater, Plaintiffs may be limited to equitable relief seeking
the abatement of the claimed nuisance. 88
New Jersey, in particular, has a rich common law tradition with respect to the imposition
of liability for environmental injuries and the development of comprehensive and effective
remedies. 89
The common law has continued to develop despite the enactment of statutory law on
both the federal and state levels addressing environmental liabilities. State v. Ventron makes
clear that common law remedies remain available notwithstanding collateral or supplementary
86 Town of East Troy v. Soo Line Railroad Company, 653 F.2d 1123, 1132 (7th Cir. 1980)(permitting recovery of
expenses incurred cleaning up groundwater contamination); State of New York v. Shore Realty Corporation, 759
F.2d 1032, 1043 n. 14 (noting in dicta that “New York law appears to provide the State with restitution costs in a
public nuisance action.”); Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corporation, 123 F. Supp.
2d 245 (D.N.J. 2000) (“This Court agrees that for abatement of a public nuisance, New Jersey law permits cost
recovery.”)
87 New Mexico v. General Electric Company, 335 F. Supp. 2d 1185, 1239 (D.N.M. 2004).
88 Id. at 1240-1241; see also Selma Pressure Treating Company v. Osmose Wood Preserving Company of America,
Inc., 271 Cal. Rptr. 596 (Cal. Ct. App. 1990), the court held that “the State, acting in its capacity as property owner,
and not merely in its representative capacity, can seek damages as well as injunctive relief . . .” Id. at 603. The
court went on to determine that “the State does have a legally cognizable interest in the ground waters affected here
which suffice to support a claim for damages.” Id. at 606.
89 New Jersey’s proactive and continuous use of the common law in NRD recovery actions provides a valuable
template for other states to utilize in their own NRD actions.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM