N.J. Stat. tit. 2A, ch. 35A

in effect

N.J. Stat. § 2A:35A-1 Short title

This act shall be known and may be cited as the "Environmental Rights Act." L.1974, c. 169, s. 1, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-2 Legislative findings and determinations

The Legislature finds and determines that the integrity of the State's environment is continually threatened by pollution, impairment and destruction, that every person has a substantial interest in minimizing this condition, and that it is therefore in the public interest to enable ready access to the courts for the remedy of such abuses. L.1974, c. 169, s. 2, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-3 Definitions

For the purposes of this act, the following words and phrases shall have the following meanings: a. "Person" includes corporations, companies, associations, societies, firms, partnerships and joint stock companies, individuals, the State, any political subdivision of the State and any agency or instrumentality of the State or of any political subdivision of the State. b. "Pollution, impairment or destruction of the environment" means any actual pollution, impairment or destruction to any of the natural resources of the State or parts thereof. It shall include, but not be limited to, air pollution, water pollution, improper sewage disposal, pesticide pollution, excessive noise, improper disposal of refuse, impairment and eutrophication of rivers, streams, flood plains, lakes, ponds or other water resources, destruction of seashores, dunes, wetlands, open spaces, natural areas, parks or historic areas. L.1974, c. 169, s. 3, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-4 Action in court; declaratory and equitable relief; dismissal

a. Any person may commence a civil action in a court of competent jurisdiction against any other person alleged to be in violation of any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment. The action may be for injunctive or other equitable relief to compel compliance with a statute, regulation or ordinance, or to assess civil penalties for the violation as provided by law. The action may be commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation or ordinance, and that there is a likelihood that the violation will recur in the future. b. Except in those instances where the conduct complained of constitutes a violation of a statute, regulation or ordinance which establishes a more specific standard for the control of pollution, impairment or destruction of the environment, any person may commence a civil action in any court of competent jurisdiction for declaratory and equitable relief against any other person for the protection of the environment, or the interest of the public therein, from pollution, impairment or destruction. c. The court may, on the motion of any party, or on its own motion, dismiss any action brought pursuant to this act which on its face appears to be patently frivolous, harassing or wholly lacking in merit. L.1974,c.169,s.4; amended 1990,c.28,s.16.

N.J. Stat. § 2A:35A-5 Rebuttal to prima facie evidence or affirmative defense; rules of evidence

In any action brought pursuant to section 4 hereof, when the plaintiff in the action has made a prima facie showing that the conduct of the defendant has, or is polluting, impairing or destroying the environment or the interest of the public therein, the defendant may rebut such showing by the submission of competent evidence to the contrary, and defendant may show as an affirmative defense that his conduct does not violate any statute, regulation or ordinance designed to minimize pollution or impairment of the environment and is in compliance in good faith with any pollution abatement schedule if applicable the purpose of which is alleviation of the damage to the environment complained of. The rules concerning burden of proof and weight of evidence generally applicable in civil actions in the Superior Court shall apply to actions brought under this act. L.1974, c. 169, s. 5, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-6 Temporary or permanent equitable relief

A court of competent jurisdiction may grant temporary and permanent equitable relief, including the imposition of such conditions as may be necessary to protect the environment, or the interest of the public therein, from pollution, impairment or destruction. L.1974, c. 169, s. 6, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-7 Determination and adjudication of impact of conduct on environment

a. In an action brought pursuant to section 4 b. hereof any alleged pollution, impairment or destruction of the environment, or the interest of the public therein, shall be determined, and no conduct shall be authorized or approved which does, or is likely to, have such effect so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare. b. Upon completion of such proceedings in any action brought pursuant to section 4 b. hereof, the court shall adjudicate the impact of the defendant's conduct on the environment and on the interest of the public therein in accordance with this act. In such adjudication the court may order that additional evidence be taken to the extent necessary to protect the rights recognized in this act. L.1974, c. 169, s. 7, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-8 Remittitur for administrative or other proceedings; retention of jurisdiction; temporary equitable relief

If administrative or other proceedings are required or available to determine the legality of the defendant's conduct, the court shall remit the parties to such proceedings, except where immediate and irreparable damage will probably result, which proceedings shall be conducted in accordance with and subject to the applicable provision of law providing for such proceedings and the provisions of the "Administrative Procedure Act," P.L.1968, c. 410 (C. 52:14B-1 et seq.) In so remitting the court may grant temporary equitable relief where necessary for the protection of the environment or the interest of the public therein from pollution, impairment or destruction. In so remitting the court shall retain jurisdiction of the action pending completion thereof for the purpose of determining whether the administrative findings made in such proceedings are supported by substantial evidence and the agency action is in conformance with the law. L.1974, c. 169, s. 8, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-9 Security as condition for grant of injunction

In any action in which a temporary restraining order or an interlocutory injunction is sought the court may, as a condition of granting such relief, require reasonable security, not exceeding $10,000.00 or cash not exceeding $500.00. L.1974, c. 169, s. 9, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-10 Counsel and expert witness fees; application of collateral estoppel and res judicata; dismissal of action, use of payments

a. In any action under this act the court may in appropriate cases award to the prevailing party reasonable counsel and expert witness fees, but not to exceed a total of $50,000 in an action brought against a local agency or the Department of Environmental Protection, where the prevailing party achieved reasonable success on the merits. The fees shall be based on the number of hours reasonably spent and a reasonable hourly rate for the counsel or expert in the action taking into account the prevailing rate in the venue of the action and the skill and experience of the counsel or expert. b. The doctrines of collateral estoppel and res judicata may be applied by the court to prevent multiplicity of suits. c. An action commenced pursuant to the provisions of this act may not be dismissed without the express consent of the court in which the action was filed. d. Except as provided in subsection e. of this section, any payments made pursuant to a settlement or judgment entered in a case brought pursuant to this act shall be used to fund institutions, entities, or activities for purposes consistent with the purposes and goals of the statute, regulation or ordinance at issue in the case. No payment of a settlement or judgment shall be made except upon the submission of a plan to the court by the prevailing party specifying the uses for which the payment will be put, any person or organization that will receive all or part of the payment, and the dollar amounts to be given to each person or organization and the dollar amounts allocated for each use. Recipients of any payments made pursuant to a settlement or judgment shall report to the court on the use of such funds. e. Any payments made pursuant to a settlement or judgment entered in a case brought against a local agency pursuant to this act to enforce the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) shall be deposited in the "Wastewater Treatment Fund" established pursuant to subsection a. of section 15 of P.L.1985, c.329. f. As used in this section "local agency" means a political subdivision of the State or an agency or instrumentality thereof, that owns or operates a municipal treatment works; "treatment works" means any device or systems, whether public or private, used in the storage, treatment, recycling, or reclamation of municipal or industrial waste of a liquid nature including intercepting sewers, outfall sewers, sewage collection systems, cooling towers and ponds, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions, and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any other works including sites for the treatment process or for ultimate disposal of residues resulting from such treatment. "Treatment works" includes any other method or system for preventing, abating, reducing, storing, treating, separating, or disposing of pollutants, including storm water runoff, or industrial waste in combined or separate storm water and sanitary sewer systems; and "municipal treatment works" means the treatment works of any municipal, county, or State agency or any agency or subdivision created by one or more municipal, county or State governments and the treatment works of any public utility as defined in R.S.48:2-13. L.1974,c.169,s.10; amended 1981,c.339,s.1; 1985,c.531; 1990,c.28,s.17.

N.J. Stat. § 2A:35A-11 Notice of intention to commence action; persons to whom sent; waiver; exemptions

No action may be commenced pursuant to this act unless the person seeking to commence such suit shall, at least 30 days prior to the commencement thereof, direct a written notice of such intention by certified mail, to the Attorney General, the Department of Environmental Protection, the governing body of the municipality in which the alleged conduct has, or is likely to occur, and to the intended defendant; provided, however, that if the plaintiff in an action brought in accordance with the "N.J. Court Rules, 1969," can show that immediate and irreparable damage will probably result, the court may waive the foregoing requirement of notice. The provisions of this section shall not apply to actions brought by the State, any political subdivision of the State and any agency or instrumentality of the State or of any political subdivision of the State. L.1974, c. 169, s. 11, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-12 Act as additional remedy

This act shall be in addition to existing administrative and regulatory procedures provided by law. No existing civil or criminal remedy now or hereafter available to any person or governmental entity shall be superseded by this act. L.1974, c. 169, s. 12, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-13 Construction of act, rules, regulations and orders

This act and any rules, regulations and orders adopted hereunder shall be liberally construed to effectuate the purpose and intent thereof. L.1974, c. 169, s. 13, eff. Dec. 9, 1974.

N.J. Stat. § 2A:35A-14 Severability

If the provisions of any section or clause of this act or any rule, regulation or order adopted hereunder or the application thereof to any person shall be judged invalid by a court of competent jurisdiction, such order or judgment shall be confined in its operation to the controversy in which it was rendered, and shall not affect or invalidate the remainder of any provision of any section or clause of this act or any rule, regulation or order adopted hereunder or the application of any part thereof to any other person or circumstance and to this end, the provisions of each section and clause of this act and rule, regulation or order are hereby declared to be severable. L.1974, c. 169, s. 14, eff. Dec. 9, 1974.

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