In Leese v. Lockheed Martin Corp., one of the New Jersey’s foremost environmental jurists, the Honorable Jerome B. Simandle, Chief Judge of the United States District Court for the District of New Jersey, authored a comprehensive opinion explaining why several plaintiffs who alleged harm caused by contamination on their properties were without recourse under a number of state and federal environmental laws. In so doing, the Chief Judge highlighted the procedural and evidentiary complexities unique to environmental litigants.
In Leese, plaintiffs claimed that the volatile organic compounds (“VOCs”) trichloroethylene (“TCE”) and perchloroethylene (“PCE”), i.e., hazardous chemicals, migrated onto their residential properties from Defendant Lockheed Martin’s adjacent lot, in violation of the Resource Conservation & Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation & Liability Act (“CERCLA”), the New Jersey Spill Compensation & Control Act (“Spill Act”), and the New Jersey Water Pollution Control Act (“WPCA”). Importantly, plaintiffs’ Spill Act and WPCA claims were brought under the New Jersey Environmental Rights Act (“ERA”), which provides the basis for private actors to bring these – as well as a number of other – environmental enforcement claims. After considering the parties’ respective summary judgment motions, Judge Simandle dismissed each of these claims in turn.
Judge Simandle dismissed plaintiffs’ RCRA claim in light of plaintiffs’ failure to present evidence suggesting that PCE and TCE in the levels found on plaintiffs’ properties constituted an “imminent and substantial endangerment to human health,” notwithstanding the well-documented harms associated with both VOCs. In so doing, Judge Simandle placed particular emphasis on the fact that none of the soil, air, or groundwater samples collected from plaintiffs’ properties between 2008 and 2012 revealed TCE or PCE in concentrations above New Jersey Department of Environmental Protection (“DEP”) current screening levels, i.e., DEP’s threshold levels for additional investigation. And although this finding did not, in and of itself, require that the court rule that the concentrations of VOCs found on plaintiffs’ properties were non-hazardous, plaintiffs failed to provide any satisfactory evidence or expert testimony demonstrating why TCE and PCE at these levels posed the substantial risk to health or the environment required for plaintiffs to sustain their RCRA claim.
The Chief Judge also dismissed all of plaintiffs’ requests for relief under CERCLA: Plaintiffs’ request for court-ordered property remediation was dismissed because plaintiffs, as private parties, were not entitled to injunctive relief under CERCLA; plaintiffs’ claim for reimbursement of environmental testing costs was dismissed because – even assuming such testing would otherwise be reimbursable as a CERCLA response cost, i.e., a cost incurred in response to the release of hazardous substances – these costs were incurred after plaintiffs brought suit, and as such did not constitute CERCLA-compensable pre-suit response costs.
Finally, Judge Simandle dismissed plaintiffs’ Spill Act and WPCA claims in light of plaintiffs’ admitted failure to comply with the ERA’s procedural mandate that, in the absence of immediate and irreparable damage, an environmental plaintiff must provide notice of its intention to file suit to DEP, the New Jersey Attorney General, the affected municipality, and defendants thirty days before commencing that action. And although dismissal of these two claims was without prejudice to plaintiffs’ right to provide said notice, in light of plaintiffs’ failure to present any other viable claim on summary judgment, the court dismissed plaintiffs’ lawsuit in its entirety.
While the legal reasoning and analysis of Leese appears to be sound, Judge Simandle’s opinion also emphasizes a larger truth that is already well understood by legal practitioners everywhere: litigation of environmental claims is both highly technical and procedurally complicated. Ultimately, Leese demonstrates that a environmental litigant’s failure to properly understand the statutory schemes, procedural requirements, or the underlying scientific bases supporting his claims will be at a severe – and sometimes fatal – disadvantage in any environmental action.