The message for the eight years of Gov. Chris Christie's tenure was that New Jersey was committed to a “business friendly” agenda. While environmental protection objectives and programs were not totally ignored, they were accorded a diminished status in the governmental pecking order, which was reflected in substantial reductions in DEP's staffing level and budget. As for the organized environmental community, it was viewed as a hostile force and not deserving of a seat at the table.

During the run up to the 2017 general election, the Murphy campaign made it clear that it had a very different view of environmental issues from that of the opposing candidate who had been at the center of the Christie administration's “regulatory reform” initiatives. See L. Goldshore, “Nobody Likes Red Tape: Will Report Be Implemented or Ignored,” 200 N.J.L.J. 431 (May 17, 2010). Candidate Murphy promised that, if elected, his environmental protection priorities would include climate change, protecting the Jersey shore and preserving open space.

Once in office, Gov. Phil Murphy and the majority in the legislature wasted no time to redefine the direction of the state's policy concerning environmental issues. This was reflected in executive orders that were issued, legislation that was approved and proposals that are rapidly making their way through the legislature.

There has also been a marked improvement in the relationship with the environmentalists, which is likely to continue, subject to some exceptions. For example, some friction surfaced due to the administration's opposition to the further appeal of the Exxon settlement and the proposed diversion of $125 million of the proceeds to the general fund. NJ DEP v. Exxon Mobil Corp., 453 N.J. Super. 272 (App. Div. 2018).

Executive Orders

The Christie administration was decidedly cool to global warming. It has been suggested that this was motivated by the former governor's efforts to appeal to a national conservative base in his unsuccessful quest for higher office. As of 2012, New Jersey, one of the original members of the Regional Greenhouse Gas Initiative (RGGI), a regional effort designed to cap and reduce carbon dioxide emissions from the power section, withdrew from participation.

Just 13 days after assuming office, Gov. Murphy issued Executive Order No. 7 to “realign the State's priorities with those based on sound science designed to mitigate the impacts of global climate change.” The order countermanded Christie's disengagement edict and directed the DEP commissioner and the president of the Board of Public Utilities (BPU) “to take all necessary regulatory and administrative measures to ensure New Jersey's timely return to full participation in RGGI” including its carbon dioxide budget trading program.

On Jan. 31, 2018, Gov. Murphy turned his attention to offshore wind energy as another means to combat global warming. Executive Order No. 8 instructed the BPU and the DEP to develop an Offshore Wind Strategic Plan to implement the dormant Offshore Wind Economic Development Act and enable the state to generate 3,500 megawatts of offshore wind energy by 2030. The BPU was directed to formulate a pricing plan as the basis for a solicitation for proposed offshore wind projects that would generate 1,100 MW.

A third gubernatorial pronouncement was intended to supplement prior environmental justice efforts to address the disproportionate amount of industrial pollution and other environmental hazards in minority and low-income communities. Its origin can be traced to a 1994 presidential order issued to the states requiring them to address these concerns.

Executive Order No. 23, issued on April 20, 2018, authorized the DEP to take the lead and provide guidance to all executive branch agencies for taking environmental justice into account in the implementation of their statutory and regulatory responsibilities. The order also noted that it did not create a new private right of action or diminish any pre-existing right to enforce its terms or those of any responsive measures.

New Statutes

Unlike the past eight years, the administration and the legislature's majority are generally on the same page concerning environmental protection issues. As a result, a considerable number of environmental protection proposals can be expected to be approved this year. Two of these have already been enacted.

The first was adopted in response to the president's announcement of his intention to withdraw from the Paris Climate Accord. Chapter 3, Laws of 2018, required the state to join the United States Climate Alliance, a multi-state group devoted to upholding the Accord's policies and responding to the threats presented by climate change.

The second, known as the Shore Tourism and Ocean Protection from Offshore Oil and Gas Act, was prompted by a Trump administration proposal to open the Atlantic Ocean waters including those off New Jersey to oil and natural gas drilling. Chapter 7, Laws of 2018. The legislation prohibits those activities in the state's waters; prohibits DEP from permitting any development associated with those activities whether in or outside of the state's waters and any land-based support facilities; and requires the inclusion of these elements as enforceable policies in the state's approved coastal management program.

A pair of very significant energy bills were approved by the governor on May 23, 2018. Senate, No. 2313 directs the BPU to establish a zero emission certificate program. The program's underlying purpose is controversial as it would provide a $300 million bailout for nuclear power plants in Salem County operated by Public Service Electric & Gas. The revenue would be obtained by a surcharge of approximately $41 per year on energy consumers. The new law enjoyed the strong support of its primary sponsor, Senate president Steven Sweeney (D-Gloucester) whose district includes Salem County.

According to the other new law's synopsis, it “establishes and modifies clean energy and energy efficiency programs … [and] modifies the state's solar renewable energy portfolio standards.” Assembly, No. 3723. The measure requires that by Jan. 1, 2020, 21 percent of the electricity sold by the state's power suppliers/providers be from renewable energy sources; by 2025 the renewable energy portfolio standard will be increased to 35 percent; and by 2030 to 50 percent. The clean energy law has a broad base of support, including the state's solar energy industry and environmental groups.

Two other proposals are pending in the Senate Environmental and Energy Committee and are likely to receive priority attention in the coming months by the committee's chairman and primary sponsor, Senator Bob Smith (D-Middlesex). Senate, No. 1073 establishes a system to address storm water, a major component and difficult-to-regulate contributor to water pollution. The bill would enable counties, municipalities and certain authorities to establish storm-water utilities and impose related fees and other charges.

The other pending bill, Senate, No. 1074, would classify the public trust doctrine as a statutory right for the public to use and enjoy the state's tidal waters and adjacent shorelines. For the first case to recognize the common law principle, see Arnold v. Mundy, 6 N.J.L. 1, 53 (Sup. Ct. 1821). The bill would require that the DEP protect the public's right of access to public trust lands in funding decisions and in the exercise of its statutory authority.

What's Ahead

Based on the pace of the events during the first four months of the Murphy administration, it can be expected that governmental actions affecting environmental concerns will continue to rapidly evolve. Practitioners will need to closely monitor these events in order to advise their clients accordingly.

Lewis Goldshore practices in Princeton. His practice is devoted to environmental, land use and municipal law. He is the author of New Jersey Environmental Law (ICLE 2010).