Thursday, October 15, 2015

What the judge ignored in barring enviros from Exxon case

R. William Potter
"On October 9, a judge slammed shut the courthouse door to environmental watchdog groups and a state senator seeking to ensure adequate funds for the cleanup of sites heavily polluted by energy giant ExxonMobil," environmental attorney R. William Potter writes today in NJ Spotlight
Judge (Michael) Hogan held that the Department of Environmental Protection “adequately represents” their interest in getting Exxon to finance the cleanup of its pollution.
 Asserting that the Christie administration’s DEP knows what’s best for the state, the judge in the natural-resources damages (NRD) case refused to allow environmental groups and State Senator Ray Lesniak to intervene against the DEP’s plan to settle the state’s claim of $8.9 billion in pollution damage for a relative pittance of $225 million. That’s a lot money to most of us, but pocket change for Exxon. 
The court employed a strain of logic straight out of the 1950s sitcom “Father Knows Best,” reasoning that because “the DEP adequately represents their interests,” therefore the coalition of statewide environmental groups -- Sierra Club, Clean Water Action, Delaware Riverkeeper, and Environment New Jersey -- would not be allowed into the case to contest the Exxon settlement.
In so doing, the judge -- “temporarily assigned’’ and pulled out of retirement -- paid lip service to New Jersey’s longstanding judicial policy that favors “liberal standing,” allowing public interest groups to initiate or join in lawsuits. The state’s open-door policy stands -- or stood -- in sharp contrast to the federal courts, which take a narrow view of whether someone has “standing to sue,” and thus a right to be heard in court.

Potter also argues that Judge Hogan "rejected the use of the Environmental Rights Act (ERA) to confer standing to intervene."
This Gov. Byrne-era statute proclaims that “every person” has a legally protected interest in preventing “the pollution, impairment and destruction of the environment, [and] that it is therefore, in the public interest to enable ready access to the courts for the remedy of such abuses.”  
Read the full opinion piece here.

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