DEP Needs Court Order to Seize Control of Private Property

November 19, 2014 | No Comments
Posted by Paul H. Schneider

The Appellate Division of Superior Court rejected efforts by the Department of Environmental Protection (DEP) to seize control of private property without first securing a court order, and limited the DEP’s authority to retroactively apply new environmental standards.

The decision in Strategic Environmental Partners, LLC vs. DEP is the latest development in an ongoing saga involving a landfill that ceased operating in the 1970s but was never properly “capped” and closed in accordance with environmental standards.  Strategic Environmental Partners, LLC (SEP) bought the old Fenimore Landfill with plans to install a solar power generating facility.  This required that SEP first cap and close the landfill, and SEP’s closure plan included bringing in additional fill material to properly cover, cap and contour the facility.  The resulting hydrogen sulfide emissions caused offensive odors that plagued the surrounding community.  The situation became such a cause célèbre that the Legislature passed a special law, known as the “Legacy Landfill Law,” setting limits on hydrogen sulfide emissions from old landfills and giving DEP additional authority over these facilities.

Within minutes after Governor Christie signed the new law DEP issued an emergency order seizing control of the landfill, asserting the new law gave it authority to take such unilateral action.  The court disagreed.  First, it held that DEP lacks authority to seize control of private property without first getting a court order.  Second, the court ruled that the new emission standards did not apply retroactively and, therefore, all of the sulfur dioxide measurements taken before the law was enacted did not matter.  The Appellate Division sent the case to a trial court for further proceedings.

While the decision involved an interpretation of the Legacy Landfill Law, it demonstrates that courts are not receptive to DEP’s assertion of authority to seize control of private property without prior judicial review, and are reluctant to retroactively apply new environmental standards.  The decision also demonstrates that it is often easiest to prevail against DEP on procedural grounds.

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