Claims for Trespass and Strict Liability Dismissed in Natural Resource Damages Cases
In New Jersey Department of Environmental Protection, et al. v. Hess Corporation, et al., Docket No. MID-L-4579-18, the Appellate Division dismissed the NJDEP’s common law claims for trespass and strict liability, as well as its common law public nuisance claim for monetary relief. The facts of this case are as follows. Hess Corporation (Hess) operated a refinery in Port Reading, New Jersey. The Port Reading facility is used to store and process crude oil and other refined petroleum products. Hess sold the property to Buckeye Partners, L.P. (Buckeye) in 2013. The state of New Jersey filed a lawsuit against both Hess and Buckeye in August 2018. The NJDEP asserted claims against Hess under New Jersey’s Spill Compensation and Control Act (Spill Act) and the Water Pollution Control Act, as well as common law claims for trespass, public nuisance and strict liability for engaging in an alleged abnormally dangerous activity.
Hess filed a motion to dismiss both the trespass and strict liability claims, and to dismiss the public nuisance claim to the extent it sought monetary relief, as opposed to the injunctive remedy of abatement. Buckeye joined in Hess’s motion and also moved to dismiss the state’s trespass, public nuisance and strict liability claims.
The trial court granted Hess’s and Buckeye’s motions, dismissing with prejudice the common law trespass and strict liability claims. The trial court also limited the remedy for the state’s public nuisance claim to injunctive relief. The state of New Jersey subsequently appealed.
As to the trespass claim, the Appellate Court agreed with the defendants that only a party having “exclusive possession” of property may bring an action for trespass. Citing the trespass doctrine, the NJDEP had argued that it had a “controlling interest” over the natural resources at the refinery site. The Appellate Court held that the NJDEP’s allegations of trusteeship over the natural resources at the refinery site failed to state a valid trespass claim under New Jersey law. In dismissing the trespass claim, the Appellate Court held the the law of public nuisance redresses injuries belonging to the people as a whole, rendering it unnecessary and inappropriate to attempt to stretch the doctrine of trespass to cover such injuries.
The Appellate Court reversed the trial court’s dismissal of the state’s claim for strict liability against Hess. The strict liability claim was premised on the trial court’s finding that the storage and processing of crude oil and refined petroleum products do not constitute abnormally dangerous activities and, even if they are, the strict liability claims were subsumed with the Spill Act. The Appellate Court rejected this determination by the trial court, holding that remedies under the Spill Act are provided in addition to those existing under the common law. New Jersey Department of Environmental Protection v. Hess, A-2893-18T2 (N.J. Super. App. Div. Apr. 7, 2020).
The Appellate Court then addressed whether the state’s complaint did, in fact, allege a cause of action for strict liability based on Hess and Buckeye maintaining an abnormally dangerous condition. The Appellate Court disagreed with the trial court, holding that Hess’s “storage and processing of petroleum…was an abnormally dangerous condition for which strict liability may be imposed.” Id. at 11. As to Hess, the Appellate Court held that “[t]he extent of operations, its proximity to sensitive waterways in environmental areas, and the danger of the pollutants allegedly used in Hess’s operations that were discharged, albeit unintentionally, satisfied the Ventron test, and, therefore, constituted an abnormally dangerous activity for purposes of maintaining a strict liability claim against Hess.” Hess, A-2893-18T2 at 14.
However, as to Buckeye, the Appellate Court agreed with the trial court that the state’s complaint failed to set forth facts sufficient to support a claim for strict liability since there were no activities conducted by Buckeye that dealt with any alleged discharge or contamination. Therefore, the dismissal of the strict liability claim against Buckeye by the trial court was affirmed.
Finally, the Appellate Court addressed the dismissal of the state’s public nuisance claim to the extent the state sought damages in the form of monetary relief, other than the injunctive remedy of abatement. The Appellate Court affirmed the trial court’s dismissal of the public nuisance claim, but restored the state’s ability to otherwise seek monetary relief associated with judgments ordering abatement of a public nuisance, if, in fact, the state succeeds on its claim.
This Appellate decision provides clarification on trespass claims brought by the state. Now, as a result of the appellate opinion in Hess, the state will not succeed on claims for trespass in the absence of exclusive possession of land.
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