New Jersey Environmental Trial Preparation: Best Practices
Your client’s townhouse development project is underway. Things are going well and ahead of schedule. Then, seemingly out of nowhere, the New Jersey Department of Environmental Protection visits his work site and slaps him with a large fine and then serves him with an unsettling lawsuit. Now what? Is the project over? Will general liability insurance cover litigation costs and damages? In New Jersey, environmental lawsuits are frequently brought about by the NJDEP and attorney general. There is no quick exit ramp for these kinds of lawsuits, so trial preparation is key. A quick Q&A with the client reveals that he purchased the vacant parcel without doing basic due diligence to determine detrimental liens, covenants and restrictions. The local site plan and subdivision processes went smooth, and local approval was granted. What seemed like an “all clear” was anything but. The prior owner, it turns out, stuck him with a large unpaid environmental cleanup bill for nearby stream contamination. Unfortunately, these bills run with the land, not the owner at the time of occurrence. In this course, we will discuss how detailed trial preparation can spare your clients from the worst outcomes of environmental lawsuits. This involves how to research every nook and cranny of a property and its history, including NJDEP permits on file, rejected applications, transcripts of past proceedings, environmental investigations and studies. Preparation then involves determining which laws, regulations and subsequent caselaw are applicable to the case at hand, while keeping in mind that the federal government preempts the state in many areas of environmental law. Finally, sometimes it is better to live to fight another day: Striking a deal with the NJDEP is often favorable to fighting a bitter, losing litigious fight. Envisioning the most favorable and also plausible outcome is the most important factor shaping trial preparation. Then, we will survey some of the best practices for drafting responsive pleadings, supported by law, regulation and scientific evidence, to the best possible extent, so that your client receives the best representation in an area fraught with uncertainty
My name is Peter Lupo. I'll be doing a discussion about New Jersey Environmental Trial Preparation, best practices thereof. So let's just do a quick overview. This seminar will deal with trial preparation for environmental laws and regulations specific to the state of New Jersey. Being an overview, we will not hone in on a single environmental law, but we'll utilize a mock trial approach involving a general unspecified environmental claim with us representing the defendant. We will proceed through the important stages of preparing to represent a client. You will be opposed by the New Jersey Department of Environmental Protection, not the USEPA. Most cases in New Jersey are brought about by the state through agencies such as the New Jersey Department of Environmental Protection, NJEP. Cases are also brought about by municipalities, counties, and aggrieved neighboring properties, as well as citizen action groups and organizations, Things to keep in mind. What constitutes environmental law is vast and involves a complex web of state, federal, and local statutes, regulations, as well as rulings and bulletins by agencies with oversight. Each and every regulation may carry penalties, such as a fine, environmental lien, or even prison time. This web of laws is constantly evolving with incoming administrations and legislative bodies cracking down on some laws while easing up on others. So you find this a lot with changing administrations, different priorities. Obviously Trump administration, a little more hewing towards big businesses and industries and mining, drilling interests, and the incoming or the current administration of Joe Biden, who hews the other way a little more in terms of environmental protection. Keep all this in mind as you prep for the client's upcoming environmental trial. So let's go over some major New Jersey environmental laws. We have the state laws often accomplish the same purpose as the federal laws, such as the Federal Clean Air Act and Clean Water Act establishing controls of pollution, contamination, and safe drinking water and air to breathe. Here are a few of the major laws, regulations and executive orders. New Jersey Executive Order 215 back from 1989 parallels the environmental review process of the National Environmental Policy Act, NEPA. Highlands Water Protection and Planning Act protects the Highlands from uncontrolled development and ensures its reservoirs of clean water are kept safe and usable by customers. Pinelands Protection Act protects the New Jersey Pinelands for pollution and excessive development. Spill Compensation and Control Act, the SCCA, the state parallel to the federal circle Superfund law. And then, of course, there's the Coastal Area Facility Review Act is a major law for controlling development along New Jersey extensive shoreline areas.
Due to the vastness of environmental litigation in the State of New Jersey, due to the complexity and range of things that can happen, in order to get the most out in this short class, we're going to use a mock trial. Basically, a mock trial will illustrate a lot of the key highlights of things you will likely come across as you prepare for your trial. So some of the parameters of the trial will be that the New Jersey Department of Environmental Protection will be the plaintiff very often if there's a sort of a egregious violation of environmental law. Could be a neighbor that brings the lawsuit. It could be any number of parties. In this case, it's gonna be the NJDEP. And so many environmental issues that could happen. So many things come up. But for this mock trial and in order to just illustrate some of the basic parameters of things you'll deal with, we're gonna go with contamination, toxic contamination by hazardous substance. And we're not gonna specify what part of the environment is contaminated. We're gonna keep it kind of abstract. Not air, soil, water, or anything like that. We're just gonna keep it general and abstract and kinda move through the preparatory stages. And for the general purposes of what we're doing here, we're going to assume that the preparatory steps we take will apply to any of the instances of contamination. We're gonna keep it broad in general, but also specific enough that we can get something practical and meaningful out of it. So to recap, environmental contaminant, NJDEP is the plaintiff, and our client is the defendant, and an unspecified part of the environment has been contaminated. So the big question, say you're a land development, land use attorney, real estate attorney, and you have developer clients and one of them is being sued. You might get an anxious or a panicked call at any time of day or night. And your client may be a factory owner or may be a condominium developer, a road construction company, someone even with something like a campground or some sort of local area like a recreational facility, like Great Adventure or something in New Jersey, a metalwork studio or a laundromat. These are just a few of the types of clients that can come to you with an environmental issue, being the defendant, that someone's accusing them of something. And before you know it, they're faced with an injunction, they've been served the complaint, and now they're your client. And this mock trial will move forward. For the time being, to establish more conditions, they may have work crews on site that they're no longer able to proceed. There's a stand down order in effect until this environmental issue is cleared up. So right from the get-go, in addition to whatever fallout may occur from this environmental litigation, you have work crews that must be paid that are not doing their job. So already you're a developer. Your client is losing out. So these early steps are very crucial. A lot of it's very general in nature and applies to anything, any sort of litigation that might come up. So I'm gonna go from general to specific. You wanna interview your client and you wanna gather all the information you can during that interview and make checklists and trackers, whatever it takes to organize the information they tell you and the leads that they give you that must be followed up on to gather additional information and basically incident recollection, any paperwork they may have, digital files. And in the early stages, you wanna gather all of this as much as possible while it's fresh in your client's mind and while it's on their desk, even. Sometimes I'll have permits and whatnot and payroll statements, whatever it is, complaints right on their desk. Just whatever it is, you wanna gather it as early as possible. And dealing with a state agency is often very stressful. You never know what's gonna happen. So in addition to being a lawyer, you're a bit of a counselor. You also function in a very unprofessional, undeclared manner as a form of a therapeutic counselor. Wanna keep them calm. And this helps the case 'cause the calmer they are, the more rational your client is thinking, the more valuable the information and evidence they will be able to provide for you to help push the case forward in the preparatory stages. Going a little further on that and the early stages of preparation. Touched upon the fact that you're going to function in a legal capacity gathering evidence, that you're also going to be dealing with a stressed client, and in addition to fear of reprisals, penalties, fines, and losing the ability to complete the project, being accused of an environmental crime is often a... Weighs on the conscience. Some sort of contamination. It can weigh on the conscience of your client as well as on their fears and anxieties, so... And as counsel for someone accused of an environmental crime, that may weigh on your own conscience, as well, especially if it's your first foray into the area. You may just deal in real estate development or property development, and typically pulling permits, zoning approvals, planning board approvals, and all of a sudden first foray into defending against accusations that some form of environmental crime has been committed. You are not helping to ensure the destruction of the environment by defending your client. You are just giving him the best defense that he deserves. And everyone in every trial, the accused party deserves a fair trial. They deserve good counsel. So moving forward with that in mind, you are helping to ensure the best defense of your client, and if it weighs on your own conscience, you're not ensuring the destruction of human habitation, the environment, and all the flora and fauna than occupy our ecosystems. With that out of the way, speaking of the generalities, we're going to delve into the nitty gritty and the specifics. So we covered the basics and now we're going to get into the specifics of trial preparation in our little mock trial where your client has been accused by the Department of Environmental Protection of a environmental crime involving the contamination of the environment with a hazardous substance.
Thanks, Paul. Let me roll into trial preparation, the key aspects. So what we wanna do is we wanna make sure we assemble the paper trail. Expert witnesses, make sure we wanna have them identified. Expert discovery, depositions, graphics and communications tools, insurance, the importance of knowing your judge and jury, and the appeals. So let's go to the assemble the paper trail slide. Submit a formal request to the New Jersey DEP and other applicable agents for copies of any and all documents, email threads, licenses, permits, disapprovals, appeals, administrative hearing minutes, and authorizations, and anything else relevant to the matter at hand. Press your client to gather information, everything, and place it on a single thumb drive for your records. Do not hesitate to keep a stock of 128 gigabyte USB drives on hand to hand out to clients so they can fill it with everything needed without having to think about it. I prefer self-contained thumb drives. They are portable and easily managed by distraught clients. You may prefer cloud storage options, which are fine as well if properly secured and if login and password information are easily accessible to your client and don't involve jumping through hoops for data uploads. Everything is fair game with gathering data, photos, documents, email chains, applications, phone call transcripts, and so on and so forth. Expert witnesses. The state will gather its many expert witnesses to seek justice against your client. You must do the same to protect their interests. Recruiting. Determine the technical issues involved and contact qualified experts in regard to same. Gathering the right expert witnesses may be the most important aspect of an environmental trial. Referrals, published names, and a simple web search are good ways to generate solid leads when searching for expert witnesses. Ensure they have the requisite skill, knowledge, and experience needed to qualify as experts and not be successfully challenged by the plaintiff and trial judge. Nothing more embarrassed than that. Overqualified witnesses are better. Academic credentials and specific relevant practical experience are the best combination. If budget's not an issue, multiple witnesses are better than one, even with subject matter overlap. Types of expert witnesses. Chemical expertise can explain the nature of the substance in question as well as basic physical and chemical properties. Medical expertise can explain how the contaminant in question promotes illness and disease in humans. Toxicologists. Additional specific expertise on the effects of certain substances on human health. Engineers. Further expertise on the physical nature of the substance in relation to the surrounding environment. Transportation expertise can explain how the handling, storage, process, and disposal of certain substances presents risks of spillage, exposure, and other harms. Environmental specialists can explain how substances can damage groundwater, soil, air, and other aspects of the environment. Epidemiologists for toxic substances, including those of biological nature. If your case requires an epidemiologist, there are regional and global considerations to take into account. So let's go a little bit into the expert witness preparation. Scientific experts are frequently unfamiliar with the customs of trial court and can be overly wordy, long-winded, and speak in a manner unfamiliar to members of the jury. Even a judge with relevant experience in some instances will stumble into unknown fields and subfields. Each case is different and experienced judges will always encounter niche environmental areas that are novel and unfamiliar. Research and rehearse examination, cross-examination, and subsequent involvement. Utilize graphic aids in conjunction with expert witnesses' testimony to hammer home key points.
In addition to preparing your own expert witnesses, the aforementioned epidemiologists, toxicologists, and engineers, you also need to perform extensive discovery to uncover what the opposition's expert witnesses are aware of. You need to know what they know. You need to know the facts they have on hand, the conclusions they've drawn, and how they've come to those conclusions, what evidence have they relied on. And in doing so, in addition to discovery on the opposition's evidence, facts, conclusions, testimony, et cetera, depositions are a crucial part of trial preparation in environmental cases. Now, depositions will involve the expert witnesses we mentioned, but very often environmental cases affecting the land, going to affect neighbors, land owners, pedestrians, vehicular passengers, anyone who may be affected by the environmental issue that's at hand, and gathering depositions is crucial. You have neighbors, employees of either your client or any of the opposition or surrounding areas, essentially anyone nearby who has information regarding the matter and any expert qualified enough to give testimony regarding the matter can produce a deposition that could be useful for your client. And in discovering what the Department of Environmental Protection has gathered via your own discovery process and what they're going to use will further inform your use of nearby witnesses, depositions, et cetera, et cetera. It was all important prior. Remember this, for this particular course, we're dealing with trial preparation, so we're talking depositions as opposed to actual on-stand testimony, which would be the trial itself. We're not going to be touching upon it in this course. That's for beyond the scope and maybe for a future course. In addition to depositions, you get sworn affidavits, and you'll have to yourself or your team or through contractors find out what people know in the area and defend your client. You may have to go door-to-door. You may knock literally door-to-door nearby, say, "Hey, you familiar with such-and-such an issue? Do you know this property? Are you familiar with such-and-such? Have you received any notices in the mail? Have you been contacted by anyone?" All of this is important information to gather. Now, in the end, as you're preparing your case, not every piece of information is going to have equal weight and relevance, but you need to have it all in front of you. In the end, you just have a mass of data, testimony, and information that you will use to build the case for your client. And because environmental damage is often nebulous and undefined, your qualified experts are... Their depositions are extremely important to keep them specifically honed in on the facts at hand, not to wander, not to stray because of the nebulous nature of environmental accusations. They can drift over time. You'll have a specific claim being made in the initial filed complaint, and then as additional facts come to light during discovery, just during the property continuing to exist with the hazardous condition, additional revelations will affect the nature of what is being accused, will affect the way you will handle the trial and the way you'll prepare for the trial. Okay. Just talking a lot about the personal side of things, the legal side of things, the standard stuff you might see in any legal investigation. A lot of this stuff so far has universal applicability. Expert witnesses, depositions, none of this is unfamiliar to a lawyer familiar with litigation in another area of specialty. It starts getting more specific and more technical when you start gathering the communication tools, the graphic devices, and other instruments that you will develop to present the facts at hand, the conclusions you have drawn, to present your client's position in the best possible light. And when you're dealing with a jury and even a judge who's familiar with an environmental law, having easily intelligible, clear, lucid diagrams, charts, maps, overhead images, satellite images, anything, and anything like that, it is helpful. It bolsters your client's side if it's clear, lucid, and makes the case. And it's not uncommon to deal with contaminants measured in units that will be unfamiliar to many in the general public, although not entirely so. Most of us have gone through basic science classes growing up, remember our basic biology and hearing units like nanograms, picocuries, moles, and so on to anyone who took Chemistry 101 or Physics 101, these terms will have some remembrance. They will ring recollection. And when presenting this information before a jury it must be intelligible to these men and women, as we mentioned, who may have some vague awareness, but they don't have technical scientific knowledge, and they're certainly typically not experts in the fields that will be discussed, specialized fields of toxicology. These are, there are PhD career paths for developing expertise in these matters. So bringing the information in such a way that it favors your client and is intelligible to the general public and is lucid and color-coded is extremely important in case preparation. Couple of examples. We have listed our color-coded site diagrams, pie charts depicting ideal versus existing conditions, photographs, simple photographs with markup highlighting the areas that might be affected, highlighting levels that have been detected in your own studies or anything that's available through discovery. And even animations can come into play. And again, they would need to be lucid and intelligible and would have to serve your client's best interest and support the conclusions in the case you are making for them to be effective. So remember your graphics, your depositions, your testimonies, your expert witnesses are all tying into the case you're going to make to defend your client from the environmental crimes they're being accused of. Tying further back into the evolution of a case over time, realize it's important to remain flexible representing your client. You don't wanna get fixed on any one particular path to acquittal because cases, they change. The facts change. They migrate through the courts, equity, law, administrative proceedings. So an environmental issue is not something that goes away. It can't be swept under the rug typically and can affect your client in many different ways. The typical superior court trial is the primary focal point. But in addition, there's courts of equity, again, I'll mention injunctions, and there's sometimes even administrative proceedings by the various state agencies that may overlap with the main trial. As we mentioned, points of law will evolve as new facts come to light when the investigation reveals deeper truths. And another interesting thing is that laws may be adopted if it's a prolonged trial. Trial can last two years sometimes, and we've seen environmental laws enacted all the time, new ones at the federal, state level. There are new ones, and they may directly affect the matter at hand, and depending on their grandfathering provisions and how they're retroactively applied to existing sites and conditions, they may additionally affect your case and your client. So remaining flexible is very important. And also in addition to the matter of new laws being adopted, the fact that an environmental issue can touch upon all different areas of enforcement, from trials to fines to local executive enforcement by local towns even can get involved. In addition to all that, there is also the matter that science is also in continual flux. Chemistry. New substances are being discovered. New properties of substances are being discovered, and there can be developments in the field of science at hand, the field of chemistry, toxicology, biology. There's research, and keeping a sharp eye on Nature journal and some of the main publications out there, the Journal of the American Medical Association, anything like that. Again, you really, you're going to branch into environmental law, it's very helpful to be scientific minded. You don't have to be a scientist, but be aware in addition to remaining updated on the legislation and the regulations that come about affecting the state and the country, you also want to be aware of the science that's coming about, the changes and the developments, theories, practice, experiments, things like that. Things that point us in new directions can affect your client and your case. Things to keep in mind. And in addition to your own monitoring of the developments in science and engineering and other fields, your client with many sleepless nights is going to do their own research. Very often, especially early on, a client will have all sorts of legal theories, speculations, and approaches, and in a case of an environmental crime or the accusation of one, they may have started doing their own research into the science. And it can all be very helpful. Very often it's distracting and they're emotional. Being emotionally distraught makes it difficult for them to remain neutral, to remain effective. So you kind of wanna accept their stuff, accept what they send to you with an open heart, but generally most of it's not going to be particularly useful in that phase. Their information, their data, their evidence, their photos, that's all useful, but their subsequent legal and scientific research is generally not helpful. But keep an open mind. Sometimes a client will surprise you and come up with something you didn't expect, and at that point they can bolster the case. Anything that bolsters it is welcome, 'cause environmental matters are a bit frightening, they're uncertain, they're nebulous, the outcome is never completely without doubt, and the future is uncertain. So keep an open mind for all these different things as you move forward in preparing. Okay, so far we had a bit of a gloom and doom approach saying your client's gonna be losing sleep, you have to do all this stuff, take what appears to be a fanatical amount of preparatory steps to get ready for an environmental trial. And it's all true. A lot of it happens after a while. You get familiar with the process and it happens rather quickly, gathering all available evidence from your client, maybe a day. They may not have anything further than what they have on hand. And then submitting a OPRA request to the Department of Environmental Protection and maybe the local town for any permits and any other file plans or whatever else you need to do as part of the due diligence getting ready is sort of, sets up a foreboding tone seems to like hover around these accusations, and it seems to set things off in a negative direction, but it's not the case. First and foremost, in our mock trial, we're dealing with contamination, and for the Department of Environmental Protection to prove its case, it needs to demonstrate that your client is liable for the contamination. It's a double-edged sword here. In certain instances, completely independent of a court trial, the DEP can issue injunctions and restrictions on land development that run with the land. Does it mean your client's liable? Doesn't mean anything like that. It just means that certain things can't be done on the land because of issues that have been uncovered until these are challenged under administrative review or even lawsuits, even litigation to get rid of the restrictions. And today we're more... We're gonna focus, because of our mock trial, those running with the land provisions, those are tough, and they often dealt with an administrative level, and they often can accompany a court case against your client for liability, which is gonna be our focus here. Have to demonstrate that your client is liable for whatever contamination happened, and they are going to look at every stage of the process. And since contamination is our example, as opposed to, say, waterfront development, unregulated waterfront development, we're gonna stick with that and follow it through. So first is the handling. Is the DEP's evidence accurate in how your client handled the contaminating materials in question? How were they disposed of? Is the issue one of disposal or toxic substances, regulated substances improperly disposed of? Something to consider. And if that is the accusation, what type of evidence does the DEP have to back it up? There's a pretty high burden of proof here. So on the one hand, it's gloom and doom. You have all this preparation to get ready, depositions, you're knocking door-to-door, your OPRA requests and everything else, and expert witnesses. And on the other hand, it gets to trial, it's not a slam dunk case for the environmental agency very often. Then you have the materials themselves. Determine the legality of the material being used, the levels that are permitted, and determine what, when, and how anything was exceeded or violated. And another thing that often goes a long way, especially in trial court on these matters, is mitigation measures taken by your client on their own without being forced into it, without being restricted in such a way where they had no choice but to undertake these measures. Client mitigation measures designed to remediate environmental issues in place and damage that may have occurred. That's looked upon favorably, and if it is effective mitigation measures, then a decision in equity can involve something like an expansion of those measures without any further liability on the part of your client, subsequent testing a while later to make sure everything's good and copacetic, and your client can resume their lives. Topography. Now, basically contaminants, when they're released into the environment in large measure, their dissemination depends upon the geology and topography of the area in which they are released. If you have a hillside, if you have a swamp, a bog, a wetland, a forest, these will all affect the way that toxic materials distribute throughout the environment. Finally, in line with topography, we also have geology. We have the geological conditions. You may be again, mountain range. You may be in the New Jersey Pinelands, When I say mountain range, New Jersey, I guess the northwest of New Jersey. You have the Highlands there. You got some pretty high peaks, but nothing resembling a true mountain range. Then you got the Pinelands running along the Atlantic coastal plain, and you have the Meadowlands, the Hackensack Meadowlands district. You have that. You have all these areas where the geology differs and the way that toxic materials will contaminate the environment differ as a result.
Okay, so let's return to incidents occurrence versus contamination thresholds. So in some cases, the issue in question will be whether contamination has occurred at all. If so, was it the fault or doing of your client? This needs to be determined. There are many potential sources of contamination. In some cases, there'd be no doubt that some level of contamination has occurred. The issue will then be determining the grieve liability placed on your client, contamination levels when compared to established standards. Injuries to persons and property. It substantially complicates matters if an individual such as a neighbor or nearby resident has sustained an injury requiring medical attention due to toxic exposure or some other contaminant. The level of additional complication depends on whether the injury is direct or indirect. For example, a visible skin rash from exposure to toxic gases presents an exceptional challenge. On the other hand, a neighbor complaining that her asthma has been exacerbated by contaminants presents a less exceptional challenge, but one that adds a layer to the trial which must be dealt with. Injuries to property fall along a similar trajectory. Expert witnesses and painstaking examination of all evidence are crucial in each and every instance of alleged injury to person or property. Insurance. You and your client may be given a big helping hand if he has an insurance policy that covers him against environmental claims. The insurance company may appoint a lawyer whom you can then assist at special counsel if permitted. So this is gonna be kind of a partnership. Insurance-appointed counsel may lack the requisite environmental expertise, so be ready to communicate with their appointed counsel and provide any information you have gathered thus far. Insurance companies can provide invaluable assistance and manpower toward investigation and litigation aspects, but be sure that your client retains his right to the greatest possible extent. If the insurance company appoints its own counsel, you can probably remain on the case as a consultant. Know your judge and jury. Obviously important. You gotta know your audience. This kind of reverts back to also the type of expert witnesses you bring. You wanna make sure it's somebody who's personable and can kinda tailor things to the judge and to the jury to make it most understandable, digestible, and winnable for your client. The background of members of the jury may shed light on which types of evidence and testimony will be most effective in persuading them. This is another critical aspect of trial prep. Many information sources are obvious. You have social media, such as YouTube and Google searches, public background checks, lien search, professional licenses and bankruptcy filings. Use information gathered to develop a profile for each member of the jury. Budget permitting, it may be helpful to hire a professional jury consultant with a specialization in environmental litigation. Other common environmental suits, a rundown. Much litigation on environmental matters is not as sensational or catastrophic as a toxic spill in a pristine river. Average homeowners are sometimes unexpectedly hit with fines and lawsuits. Preparation for their cases has many parallels to larger cases. You've got riparian encroachments, radon levels exceed established thresholds, underground storage tank, and unauthorized Pinelands area development.
We're gonna take a brief digression from our mock trial on defending a client who's been accused of environmental contamination. We're going to drift into the area of radon. Many people who have purchased homes in New Jersey or throughout the country are familiar with an aspect of the process and purchasing your home in the inspection phase known as radon testing. Basically, someone will set up a device and they'll check the radon levels to see if they exceed the established thresholds. So we're gonna do a little mini mock trial here where your client has a tenant who covertly set up a device to capture radon levels in the basement of the home that he is renting from your client, and it turns out that the levels exceed four picocuries per liter. And now what does your client do? He's been accused. The tenant's threatening to sue. He's threatening to do all this and that and bring all sorts of problems to your client, the property owner. Now, thankfully with radon as opposed to some random toxic site spillage, et cetera, there is a standard accepted practice of mitigation. Radon mitigation measures are well-established in the state and your client needs to simply adopt those measures, and he had no knowledge of the radon levels prior to the tenant covering them to him, so he's not liable, and mitigation measures, however, must be done to avoid any future issues. So nonetheless, the tenant, he's all angered and outraged, and he files a lawsuit anyway. At this point, you'll have a tenant suing a landlord for radon levels exceeding the threshold. You'll have your client, the landlord, already setting up mitigation measures to reduce the radon levels in the home to acceptable levels. Now, this is the kind of case where you can do extensive trial preparation if you see fit. You wanna be thorough, seem like you're doing a good job. But in all likelihood, the mitigation measures will resolve themselves. If your client can get the measure of radon in the property to below four picocuries per liter, then the case can be dismissed, and that's it. There'll be no punitive damages, compensatory damages, or any form of damages or liability for your client. So that's a little diversion, a little mock trial, something that could happen. And basically, yeah, radon is a noble gas. It's a part of the life cycle of uranium, down to radium, down to radon, with its little ejection of alpha particles and so on. I forget the exact nuclear chemistry. But the outcome of the case, reasonably certain, if your landlord performs the basic mitigation measures. In the meantime, there are things that he can do. Consider it preparation. Consider it being smart. Whatever you wanna consider it. That will further limit any liability or damages that your client may face. First and foremost, he should cease all contact with the tenant in regard to the matter. He should arrange for his own independent test to make sure that the tests are honest and accurate. And if it's possible, depending on the level and depending on any other factors sort of discovered with soil tests, et cetera, determine how long the radon has exceeded the established thresholds for informational purposes. And finally, now, this is a big one, and it's not necessary, but it's recommended. If your client has an alternate living space for the tenant, it might be a wise move to set him up in this space until the matter has passed. Okay? Same deal for riparian encroachment. Whereas radon levels exceeding the threshold is more likely to happen in the northwest of the state, in the more hilly mountainous regions, the Highlands is where radon levels are more likely to exceed the standard, and by the coast, doesn't happen too often. Different composition, different geology, and so on Riparian encroachment, on the other hand, that's something that is more likely to affect a shore home or a shore property or Barnegat Bay or one of the various waterfront spaces in the state. And it turns out that your client's bulkhead extends five feet beyond the line established by the state, the mean high water line, however they establish the boundary that the state claims as to what is privately owned, your client's waterfront bulkhead exceeds that level. And the state, by one mean or another, has discovered this and has threatened to fine and sue the homeowner unless the bulkhead is removed, disassembled, and no longer in water claimed by the state. You get a lot of agencies involved in this. The New Jersey Department of Environmental Protection is one. The state department, executive agencies will be involved in this matter. And like any other environmental matter, it can be nerve-wracking for your client. First step, determine the Tidelands claim line. It's the mean high water mark, as we mentioned, flowed or formerly flowed by natural waterways. Now the key of formerly flowed waters is important. You could have a totally dry patch of land that's claimed by the state as having been formerly flowed. For whatever reason, it no longer is, and state still stakes a claim to the area. And in those cases, your client may have developed his deck or his shed or something on these lands without even realizing it. And then you find some old filed map, you find the Tidelands claim line, and you realize, wow, okay, the state is onto something. We gotta do something here. Look at surveys, plans. We have to look the exact nature of the violation and any permits that were issued by the DEP and the state, any other grants, any other existing or defunct agency. And then as you're preparing, then you can move forward. Now, the end goal in this matter would be to preserve your client's home as it is, see what can be done with as little cost and risk to your client as possible, preserving their home and its improvements without relocating decks or relocating bulkhead or dissembling sheds. What can be done? That's why preparation here, all sorts of maps, surveys, everything. Again, as a law office, if you wanna expand into this area of practice, familiarity with geography, environmental maps, the state's GIS system. New Jersey actually has a pretty good GIS system. It has hundreds, dozens, I should say, of layers with historical properties, lot and blocks of individual parcels all the way down to wetlands, all these different things on these layers. So familiarity with this state Department of Environmental Protection GIS system is very helpful. It can really go a long way to improving your ability to research any issue faced by your client and respond accordingly. If you haven't already noticed, a lot of the clients we deal with are residential real estate clients and small commercial clients like commercial real estate clients. So issues like riparian encroachments, bulkhead, radon levels, these are all things that crop up when dealing with residential and small commercial parcels. Another issue that comes up... Again, this is why environmental law is so complex and so vast, that an underground oil storage tank discovered in the home where your client lives six feet underground abandoned 20 years ago, that's an environmental issue. It could be a zoning issue. It could be a bunch of different issues at the local level, but at the state level, an underground oil storage tank is strictly regulated because of the possibility that it can leech petroleum into the soil and contaminate it and really make it toxic for future use, for human habitation, agriculture, or return to a wild state. So when your client who's a New Jersey homeowner is faced with this issue, what does he do? In many cases, he's gonna be unaware, and he's gonna come to you, and with all of his real estate issues, and you're going to advise him, and you're going to guide him in the right direction, and you're going to prepare him, and in the end it will be a decommissioned oil tank or a removed oil tank. So basically those are the two options. I just mentioned them. You decommission the oil tank, you have it removed, and you follow the strict procedure established by the state in doing so, and you hire a licensed contractor to perform the oil tank decommissioning and removal process, and you ensure that the contractor does not violate additional environmental laws in the process of performing these duties. And if all this happens, you will not be doing environmental trial preparation at all. It will simply be a regulatory matter and approval process with the end result being a properly decommissioned tank and a certificate issued by the state and very often by the local town administering the regulations on behalf of the state, in addition to its own regulations, Going to move to our final mini mock trial of sorts. We did a little bit on the riparian. We did a little bit on radon. We touched upon underground oil storage tanks as a digression from our overarching mock trial of environmental contamination and defending your client on behalf of... On these issues. The next area we're gonna touch on, again, dealing now more toward the southern part of the state, and that is the Pinelands and unauthorized Pinelands area development. A little scenario of what happens if your client's building a townhouse complex and it turns out that he did this rigorous approval site plan, environmental permits from the DEP and every other affected local county and state agency, and he moves onward to develop the land. And at some point, one thing leads to another and the covered surfaces, the impervious surface extends 25 feet further than that was approved by the Pinelands development permit. And he contacts you. And in this case, you have a distressed client again as part of these scenarios who is going to be facing issues from the DEP as well as the Pinelands Commission, 'cause both of these agencies, or agency and a commission, are charged with preserving the Pinelands region. In addition to these two state bodies, you may have private organizations, citizens who are very passionate about protecting the Pinelands. They may pile on here and further accuse your client and further cause him distress. And as counsel, you'll be preparing him for this matter. His well-being's important. He hired you to vigorously defend his interests. However, you need to make sure that he is in the right state of mind to be able to help the matter. And again, as with the contamination, you have to figure out what went wrong. How did the development wind up 25 feet further than it should be into the Pinelands? And is there a way that it can stay as is without needing to uproot and tear down the additional 25 feet of impervious surface, which may already have structures on it. There may already be a building or a corner of a building on this area. What can be done and how can it be done? So this will depend largely in part of what Pinelands management area the property falls in. Now, the Pinelands Commission develops a comprehensive management plan and land capability map, and this lays out the types of land management areas that are part of the Pinelands, what development can occur on them, and so on and so forth. You have the preservation area district. This is the heart of the Pinelands. This is the most protected part. It's 288,000 acres currently. And development here is strictly regulated. No residential development is allowed at all. So your client's condominium development will not be happening in the Pinelands preservation area district. You have a special agricultural production area. It's 40,000 acres used only for agriculture and the associated residential homes associated with the farmland. So unless your client's condo development is part of a farm, then it will not be happening there either. So we have forest area. Again, the forests are strictly protected. We have agricultural production and then we have rural development. Now, this is a place where a condominium development may take place. It's 112,000 acres into Pinelands and low-density residential development is permitted. So a form of small complex of distributed ranches, maybe five to 10, nothing huge like you might find in a dense urban center, but a small development of 10 units is possible. So let's assume for argument's sake that your client's development took place in the rural development area and went 25 feet over its boundary. The first thing we're going to do in the more specific material aspects of preparation here is examining the approvals and the records, the minutes of any hearings or resolutions or anything from the DEP and also local towns. Any local town involved might matter. County, as well. In some cases, a local jurisdiction will grant its approval and its approval will not 100% jive with the DEP's approval, it's permit. And if there are significant discrepancies, right then and there, that could be an angle of approach. Well, the municipality approved such-and-such development, and upon a cursory glance, it looks the same as the DEP's, but upon a closer examination, the dimensions differ slightly. And since the typical developer deals with municipal code inspectors and zoning officers much more than they deal with DEP officials, they sort of lost track of the DEP's permit, approved site plans, and everything else, and started going with the local jurisdiction's, and this led to the inadvertent violation. And then you have to look at the accuracy of everything in question, make sure that the maps that were filed, the maps that were approved, the site plans were approved, the permits. Look at the specific wording of the DEP's permit, or the Pineland Commission's permit, I should say, the development permit. Make sure, just look through it, word by word, exacting. See if there are any verbal allowances for additional expansion without need for further approvals, which is sometimes the case. Not often, but once in a while, there will be a specific approved plan, and any modification or adjustment to this plan requires a revisitation by the agency or commission. In some cases, there are permitted exceptions, like if such-and-such is necessary to preserve health, safety, and welfare, blah, blah, blah, you may have an instance where an additional expansion is permitted by the approval that was granted by the state agency and anything else, same process as with underground storage tanks, with contamination, you just gather your evidence. You gather your testimonies, your depositions, you get your workers, you get your client's workers, I should say, anything and everything, gather it all up and get ready to make your case. And if the case does not prevail, then get ready to apply for the additional space, to make a hardship case, to apply for a variance from the Pinelands development regulations for a particular area of the Pinelands you're in and so on and so forth. And in that process, you will give your client the best chance of not only prevailing, but keeping the development as is with the end goal being not to move it by one inch, not to uproot one slab of concrete or one brick of structure. And that is the end goal. One further interesting note on the Pinelands before we move onward is that state agencies are not always in lockstep with each other. 2018, the New Jersey Department of Environmental Protection threatened to sue the Pinelands Commission for not approving a proposal to clear trees that were obstructing a view of a fire tower in the Bass River State Forest. Now, as you know, fire towers in forests are extremely important. You have someone out there on the lookout for smoke and signs of forest fires at all times. It's like a lighthouse. These things are sacred vigils of the sanctity of a forest. Now, for the Pinelands Commission to disapprove of this, which they did, it kind of runs in contradiction to the Department of Environmental Protection. And you'll see in these instances the DEP threatened to sue the Pinelands Commission. So in most cases, these agencies will be suing individuals and businesses, clients that you'll represent in your environmental practice. But as a curiosity, watching the way agency conflict plays out is illustrative further into the nature of environmental law at the state level. And there you have it. Environmental suits, different shapes and colors that will affect New Jersey landowners, New Jersey business owners, individuals, even governing agencies, as we have seen in the case of the DEP suing the Pinelands Commission. So we had the contamination mock trial. We had a small issue of riparian encroachment. We looked a little bit at excessive radon levels that a tenant pointed out, about underground storage tank decommissioning, and Pinelands area development that exceeds permitted boundaries. All of these things, this whole entire thing we covered today, all these areas is really a microcosm of the vastness of environmental law, even at the state level. We didn't even touch on wetlands. There were just so many areas we didn't touch on that are crucial. But in the course, we wanted to stick to large principles and use the mock trial approach to demonstrate as much as possible in the timeframe.
Okay, you reached the point that no one wants to be in, but happens, appeals. Your client lost. Now what? And it's the reality. I mean, every time you're gonna walk in and have the best argument, and sometimes even you have a strong argument, you have good witnesses and the like, make it before a court that just may not agree with it or may not understand it. Sometimes in my experience, a lot of these things are flipping a coin in terms of the jurors and jurists and the judge themselves understanding it. So in appealing an environmental lawsuit must contain a clear legal argument and typically be filed within 45 days of decision. It can be devastating on the psyche of a client to a lose decision, with the potential consequences of being smeared in local conventional and social media as someone who has caused great harm to the environment. It can be very harmful for a business. So something that a lot of people are sensitive to. And we've all seen this before. You get branded and wear the perennial scarlet letter. Remember to stay strong. Potential basis for appeal, some glaring errors of fact, improper evidence. Make sure you take a look through the transcripts and review it. Prosecutorial misconduct. Revelation of subsequent evidence that shines new light on the overall sequence of events. Something to always keep a lookout for. Save all case information files and obtain a full case transcript. Draft an appellate brief and submit. Continue to pursue new leads, evidence, and anything else that can help with your client's appeal. So let's go over some of the key takeaways. Environmental trial preparation in New Jersey involves extensive communication with the client, as you already saw. It's gonna rely quite a bit on communication and your ability to make sure you extract the right information, determine the issue at hand, exploring mitigation measures, and ensuring that your client's case is presented in the most understandable and intelligible manner to the general public who will compose members of a jury and other parties involved the matter. Outlook. The current and future administrations will likely continue the status quo, being a reasonably high level of enforcement of environmental laws on the books. As a result, developers, property owners, and many other types of clients will face fines, orders, and cease and desists, as well as actual lawsuits over a potentially vast range of concerns. Best practices. Wise practices in environmental litigation are not that far off from the same in other areas of practice, the major distinction being that environmental suits often involve scientific issues that must be made clear and legible to a judge and jury. We already discussed that. Sometimes a very difficult task. Here's my contact information. If anyone's got any questions or want to discuss any aspects of this, of course, as a practice, this is what we do. We'd be happy to hear from anyone listening to this.