On Tuesday, November 7, 2017, New Jersey voters will be asked to decide on a state constitutional amendment regarding the use of natural resource damages collected by the State in environmental contamination cases. New Jersey has the authority to collect damages for restoration of natural resources under the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-10, and the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11g. However, not all funds from environmental cases are currently used for natural resource restoration. Public Question #2 of this year’s ballot will read:

Do you approve amending the Constitution to dedicate all moneys collected by the State relating to natural resource damages in cases of contamination of the environment? The moneys would have to be used to repair, restore, replace, or preserve the State’s natural resources. The moneys may also be used to pay legal or other costs incurred by the State in pursuing its claims.

The measure passed both houses of the legislature by a three-fifths majority: a 28-8 vote in the State Senate and a 56-18-3 vote in the Assembly. It was created in the wake of two major environmental settlements in the New Jersey. In the Passaic River contamination litigation, the State settled for over $350 million against myriad responsible entities, including a $190 million settlement with Occidental Chemical Corp. in 2014. That Occidental settlement called for only $50 million to fund natural resource restoration projects in and around the Newark Bay Complex.

In the more recent Exxon contamination litigation, the State reached a $225 million settlement with Exxon for damage to wetlands, marshes and waterways surrounding two refineries in North Jersey. State budget plans indicate that only $50 million of that settlement is dedicated to restoration projects. Both settlements were controversial, with critics objecting to settlement numbers lower than the valued damage (Exxon’s natural resource damages were originally valued by the State at $8.9 billion) and substantial settlement monies being diverted to the State’s general fund. It appears that the latter practice of diversion will end if New Jersey voters agree with Public Question #2 on November 7.