The twin sister to environmental law is insurance. The two intertwined subject matters are akin to bread and butter; one is not as good without the other. An attorney who can handle one, but not the other, is fighting with one hand tied behind her back. It behooves the environmental practitioner to be fluent in both pursuits since insurance can serve the purpose of paying a client's cleanup bills.

As Baby Boomer practitioners, many of us have been fortunate to participate in the development of environmental and related insurance coverage law in New Jersey over the last three decades. We have seen a number of dramatic developments in both fields. Moreover, as environmental laws expanded to impose broader liability on the regulated community, the availability of liability policies to pay for those costs also expanded.

On the insurance side we have seen “regulatory estoppel” applied to prevent carriers from applying the “sudden and accidental” pollution exclusion in post-1973 policies; the wholesale rejection of the “owned property” exclusion where third-party property damage is concerned (including groundwater which belongs to the State); the adoption of a “continuous trigger of coverage” to maximize an insured's available coverage; the rejection of the imposition of the “absolute pollution exclusion” on so-called non-traditional pollution (such as mercury poisoning at a day care facility); and the application of the preponderance of the evidence standard to prove the existence and terms of “lost” insurance policies.