ASSEMBLY, No. 713
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblyman R. SMITH
An Act concerning citizen actions on environmental threats, establishing the Environmental Defense Litigation Fund, and amending and supplementing P.L.1974, c.169.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1974, c.169 (C.2A:35A-2) is amended to read as follows:
2. The Legislature finds and determines that the integrity of the State's environment is continually threatened by pollution, impairment and destruction, that every person has a substantial interest in minimizing this condition, and that it is therefore in the public interest to enable ready access to the courts and to the Office of Administrative Law for the remedy of such abuses.
(cf: P.L.1974, c.169, s.2)
2. Section 4 of P.L.1974, c.169 (C.2A:35A-4) is amended to read as follows:
4. a. Any person may commence a civil action in a court of competent jurisdiction against any other person alleged to be in violation of any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment. The action may be for injunctive or other equitable relief to compel compliance with a statute, regulation or ordinance, or to assess civil penalties for the violation as provided by law. The action may be commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation or ordinance, and that there is a likelihood that the violation will recur in the future.
b. Except in those instances where the conduct complained of constitutes a violation of a statute, regulation or ordinance which establishes a more specific standard for the control of pollution, impairment or destruction of the environment, any person may commence a civil action in any court of competent jurisdiction for declaratory and equitable relief against any other person for the protection of the environment, or the interest of the public therein, from pollution, impairment or destruction.
c. The provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), or any other law, rule, or regulation to the contrary notwithstanding, any person shall have the right to an adjudicatory hearing conducted by the Office of Administrative Law for the purpose of challenging any final State agency determination on a license, which determination such person asserts may cause pollution, impairment or destruction of the environment.
For the purpose of this section, "license" includes the whole or part of any agency license, permit, certificate, approval, chapter, registration or other form of permission required by law. Petition for such a hearing must be filed with the issuing agency and the Office of Administrative Law within 60 days of the publication of notice of the agency action.
d. The court may, on the motion of any party, or on its own motion, dismiss any action brought pursuant to this act which on its face appears to be patently frivolous, harassing or wholly lacking in merit.
(cf: P.L.1990, c.28, s.16)
3. Section 10 of P.L.1974, c.169 (C.2A:35A-10) is amended to read as follows:
10. a. In any action under this act the court or the Office of Administrative Law may in appropriate cases award to the prevailing party reasonable counsel and expert witness fees, [but not to exceed a total of $50,000 in an action brought against a local agency or the Department of Environmental Protection,]where the prevailing party achieved reasonable success on the merits. The fees shall be based on the number of hours reasonably spent and a reasonable hourly rate for the counsel or expert in the action taking into account the prevailing rate in the venue of the action and the skill and experience of the counsel or expert.
b. The doctrines of collateral estoppel and res judicata may be applied by the court or the Office of Administrative Law to prevent multiplicity of suits.
c. An action commenced pursuant to the provisions of this act may not be dismissed without the express consent of the court or the Office of Administrative Law in which the action was filed.
d. Except as provided in subsection e. of this section, any payments made pursuant to a settlement or judgment entered in a case brought pursuant to this act shall be used to fund institutions, entities, or activities for purposes consistent with the purposes and goals of the statute, regulation or ordinance at issue in the case. No payment of a settlement or judgment shall be made except upon the submission of a plan to the court or the Office of Administrative Law by the prevailing party specifying the uses for which the payment will be put, any person or organization that will receive all or part of the payment, and the dollar amounts to be given to each person or organization and the dollar amounts allocated for each use. Recipients of any payments made pursuant to a settlement or judgment shall report to the court on the use of such funds.
e. Any payments made pursuant to a settlement or judgment entered in a case brought against a local agency pursuant to this act to enforce the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) shall be deposited in the "Wastewater Treatment Fund" established pursuant to subsection a. of section 15 of P.L.1985, c.329.
f. As used in this section "local agency" means a political subdivision of the State or an agency or instrumentality thereof, that owns or operates a municipal treatment works; "treatment works" means any device or systems, whether public or private, used in the storage, treatment, recycling, or reclamation of municipal or industrial waste of a liquid nature including intercepting sewers, outfall sewers, sewage collection systems, cooling towers and ponds, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions, and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any other works including sites for the treatment process or for ultimate disposal of residues resulting from such treatment. "Treatment works" includes any other method or system for preventing, abating, reducing, storing, treating, separating, or disposing of pollutants, including storm water runoff, or industrial waste in combined or separate storm water and sanitary sewer systems; and "municipal treatment works" means the treatment works of any municipal, county, or State agency or any agency or subdivision created by one or more municipal, county or State governments and the treatment works of any public utility as defined in R.S.48:2-13.
(cf: P.L. 1990, c.28, s.17)
4. (New section) a. There is created in the Department of the Public Advocate the Environmental Defense Litigation Fund. The fund shall be credited with 10% of the revenues collected by the Department of Environmental Protection from fines and penalties collected pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) and any consent agreements entered into pursuant thereto, as well as any interest earned on moneys in the fund, until the balance of the fund equals $2,000,000.
b. Moneys in the fund shall be utilized, at the discretion of the Public Advocate, to provide grants or loans to recognized environmental or public interest organizations in existence for at least one year to cover reasonable costs of bringing actions before the courts or the Office of Administrative Law to enforce, or restrain a violation of, any statute, regulation or ordinance designed to prevent or minimize pollution, impairment or destruction of the environment, except that compensation for counsel fees shall not exceed $75 per hour. Any loans made from moneys in the fund shall be repaid from awards from settlements or court judgments in the actions for which the loans were made.
c. In allocating moneys in the fund, the Public Advocate shall accord priority to those actions the results of which have the broadest implications for the public interest, or to issues that have the potential for establishing significant precedent.
5. This act shall take effect immediately.
STATEMENT
This bill would amend the "Environmental Rights Act" to entitle any person who has reason to believe that the issuance of a permit, approval, or license by an executive agency would threaten the environment to an adjudicatory hearing on the action. Such hearing would be conducted as a contested case, with full rights to cross-examine witnesses and to compel the production of evidence.
The measure would also remove the existing $50,000 cap on expert witness and counsel fees authorized to be awarded to prevailing parties in actions filed under this act against a local agency or the Department of Environmental Protection. The existing cap, as a practical matter, precludes any significant legal or scientific assistance in these cases, since current charges for such services are extremely costly.
This act also creates the "Environmental Defense Litigation Fund" in the Department of Public Advocate. Moneys in the fund are to be utilized by the Public Advocate to make grants or loans to environmental or public interest organizations to cover their costs in filing suits or administrative actions to enforce environmental laws, rules or regulations, or to restrain violations thereof. The fund would be sustained by a 10% set aside from revenues collected by the department from fines, penalties, or consent agreements related to the enforcement of the "Water Pollution Control Act," and from interest earned on investments of moneys in the fund, up to a maximum balance of $2 million. Loans from the fund shall be repaid from court judgments and settlements. In selecting cases to be supported from the fund, the Public Advocate would accord priority to cases on the basis of the breadth of their potential impact on the public interest, or on their value as precedent.
Expands citizens' authority to enforce environmental laws; creates Environmental Defense Litigation Fund.