United States District Court, S.D. New York
March 3, 2014
IN RE: METHYL TERTIARY BUTYL ETHER (
Gwen P. Farley, John J. Hoffman, Assistant Attorney Generals Office of the Attorney General of the State of New Jersey, Trenton, NJ.
Daniel Berger, Esq., Tyler E. Wren, Esq., Berger & Montague, P.C., Philadelphia, PA.
Leonard Z. Kaufmann, Esq. Cohn, Lifland, Pearlman, Herrmann & Knopf LLP, Saddle Brook, NJ, for Plaintiffs.
Peter John Sacripanti, Esq., James A. Pardo, Esq., Stephen J. Riccardull, Esq., Lisa A. Gerson, Esq., McDermott Will & Emery LLP, New York, NY, for Defendants.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
This is a consolidated multi-district litigation ("MDL") relating to contamination-actual or threatened-of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE") and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. In this case, the New Jersey Department of Environmental Protection ("NJDEP"), the Commissioner of the NJDEP, and the Administrator of the New Jersey Spill Compensation Fund allege that defendants use and handling of MTBE has contaminated, or threatened to contaminate groundwater at service stations, refineries, and terminals throughout New Jersey. Familiarity with the facts of this case is presumed for the purposes of this Order.
Currently before the Court is a motion for summary judgment brought by various defendants seeking dismissal of plaintiffs' (1) public nuisance claim to the extent it seeks damages beyond abatement; and (2) trespass claim on the grounds that plaintiffs failed to prove that they have exclusive possession of New Jersey's groundwater. For the reasons stated below, the motion is GRANTED.
On June 19, 2012, plaintiffs filed their Fourth Amended Complaint ("FAC"), asserting claims of (1) strict liability, (2) negligence, (3) public nuisance, and (4) trespass against defendants.
Plaintiffs purport to bring their common law claims-including public nuisance and trespass-in their sovereign capacity as parens patriae.  Specifically, the FAC asserts that the NJDEP "is vested with the authority to protect and seek compensation for any injury to [the waters of the State] on behalf of the State, which is the trustee, for the benefit of the citizens, of all natural resources within its borders..." The basis of both the public nuisance and trespass claims is that defendants' conduct contaminated the "waters of the State, " which the State holds in trust for the public. As relief for their public nuisance claim, plaintiffs seek both abatement and damages.
III. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate "only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party's favor, there is no genuine issue as to any material fact and... the movant is entitled to judgment as a matter of law." "A genuine dispute exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." "A fact is material if it might affect the outcome of the suit."
"The moving party bears the burden of establishing the absence of any genuine issue of material fact." To defeat a motion for summary judgment, the non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts, '" and may not rely on conclusory allegations or unsubstantiated speculation.'"
In deciding a motion for summary judgment, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'"
B. New Jersey Law
1. Public Nuisance
New Jersey law on public nuisance follows the Restatement (Second) of Torts. The Restatement defines public nuisance as "an unreasonable interference with a right common to the general public." A plaintiff suing for public nuisance can seek "damages [or] the injunctive remedy of abatement."
The remedies available depend on the type of plaintiff bringing suit. A private plaintiff "can sue for damages caused by the public nuisance only if [he] has suffered harm of a kind different from that suffered by other members of the public.'" Thus, his "special injury" must be "an injury different in kind, rather than in degree." In addition, "if a private plaintiff has a right to sue for damages because of a harm different in kind, then [he] may also pursue an action to abate the nuisance as it affects all members of the public."
"Conversely, however, the public entity, as the modern representative of the sovereign in public nuisance litigation, has only the right to abate." As the New Jersey Supreme Court has emphasized:
[T]here is no right either historically, or through the Restatement (Second)'s formulation, for the public entity to seek to collect money damages in general.... Rather, there is only a private plaintiff's right to recover damages through an action arising from a special injury.
Therefore, an award of damages "is limited to the extent of the special injury sustained by the private plaintiff, and is not a remedy available to a public entity plaintiff to the extent that it acts in the place of the sovereign." If, however, New Jersey law permits a public entity to sue for damages as a private plaintiff,  "[the public entity] must, therefore, identify a special injury as to which an award of money damages may attach."
Under common law, "[a]n action for trespass arises upon the unauthorized entry onto another's property, real or personal." Because "trespass... is actionable, irrespective of any appreciable injury..., a plaintiff may assert a claim for whatever damages the facts may lawfully warrant." The plaintiff need not "show fault as a basis of liability."
Additionally, trespass requires that "the invasion... be to land that is in the exclusive possession of the plaintiff." "Land in the public trust is held by the State on behalf of a second party, the people." Thus, such land cannot be in "exclusive possession" of the State.
A. The Public Nuisance Claim
Defendants contend that plaintiffs cannot recover damages for their public nuisance claim because they are purportedly acting "in the place of the sovereign." Even if plaintiffs were proceeding as private litigants, they have failed to show any "special injury." Thus, defendants argue that plaintiffs are not entitled to damages for their public nuisance claim.
As an initial matter, plaintiffs do not purport to be proceeding as private litigants-nor can they- given the statements in the FAC to the contrary. Instead, they admit that they brought all claims in their parens patriae capacity and under the public trust doctrine. Therefore, under New Jersey law, plaintiffs have only the right to abate. Plaintiffs cite no controlling case that states otherwise.
Plaintiffs, nevertheless, insist they are entitled to damages because they have demonstrated a "special injury." They contend that damages to water they hold "in trust" is " per se separate, distinct, and independent" of any individual damages to the state's citizens. Even if plaintiffs could prove "special injury" - which they cannot-a public entity may recover damages only when acting as a private litigant. Because plaintiffs by-their own admission - are not proceeding as "private litigants, " they may not recover damages.
B. The Trespass Claim
Defendants next argue that plaintiffs' trespass claim must fail because they cannot prove a required element-exclusive possession. Defendants contend that because plaintiffs purportedly hold the "waters of the state" in trust for the citizens, they lack exclusive possession.
Plaintiffs insist that they are, nevertheless, entitled to bring their trespass claim. First, plaintiffs argue that the New Jersey legislature has explicitly granted them the right to bring a trespass action. However, plaintiffs rely on a provision of the New Jersey Waterfront Development Act that relates only to the navigable waters of the State. If the legislature intended to grant the State the right to bring a trespass action for groundwater, it would have so stated. Second, plaintiffs claim - without citation - that New Jersey law does not require exclusive possession. Instead, plaintiffs urge that "the proper inquiry is the right to control' the [groundwater] as against all others." Plaintiffs' claim has no support. New Jersey law clearly requires exclusive possession as an element of trespass. Further, the groundwater lies under or on private land. Thus, plaintiffs' possessory interest in that water is necessarily subordinate to that of the private landowners. The State as-trustee for the citizenry including those landowners - cannot claim to be in exclusive possession. By their own admission, "members of the public use groundwater for drinking, bathing, recreational, and similar uses." In fact, plaintiffs must obtain permission to use the groundwater. Therefore, plaintiffs cannot pursue their trespass claim.
For the foregoing reasons, defendants' motion is GRANTED. The Clerk of the Court is directed to close this motion (Doc. No. 277).