Dan McKillop, Esq.

In its recent decision in Hawai’i Wildlife Fund v. County of Maui, No. 15-17447 (9th Cir. Feb. 1, 2018), the Ninth Circuit Court of Appeals held that the County of Maui needed a CWA permit to dispose of wastewater through groundwater discharge wells because the discharge ultimately reaches the Pacific Ocean. In doing so, the Ninth Circuit has significantly muddied the waters regarding potential liability under the CWA.

Proposed legislation in New Jersey would enable license holders to plant, grow, harvest, possess, process, distribute, buy, or sell industrial hemp within the state.

The U.S. Supreme Court recently issued its much-anticipated decision in National Association of Manufacturers v. Department of Defense. The Court unanimously held that challenges to the Waters of the United States Rule, also known as the “Clean Water Rule,” must be filed in federal district courts.

The deadly opioid epidemic shows no signs of slowing down, despite the widespread attention it is finally receiving. At least 1,901 people died from opioid overdoses in New Jersey in 2016.

New Jersey lawmakers wasted no time, already reintroducing three marijuana legalization bills in the new legislative session. The legislation has a much greater likelihood of passage with Gov. Phil Murphy in office.

New Jersey businesses may not yet apply for a recreational use marijuana dispensary license. However, it is not too soon to start preparing for the process.

The New Jersey Legislature is moving forward with efforts to invalidate a rule enacted by the New Jersey Department of Environmental Protection (DEP) earlier this year. The regulation amends the septic system density standards in the Highlands Water Protection and Planning Act (Highlands Act) and clears the way for continued land development in the environmentally-sensitive region.

From regulatory changes to new court precedents, environmental issues can significantly impact New Jersey businesses. In 2017, the Scarinci Hollenbeck Environmental and Land Use Practice tracked several significant environmental law developments, both on the state and federal level.

On January 4, 2018, Sessions rescinded the Cole Memo. In doing so, the Department of Justice (DOJ) reverted away from the lenient federal enforcement policy set forth under President Obama and re-established prior policy that instructs federal prosecutors in cannabis-legal states to use certain criteria and their discretion in deciding how aggressively to enforce federal law prohibiting cannabis operations.

Over the course of the last year, the Scarinci Hollenbeck Cannabis Law Practice Group has provided entities and individuals considering opportunities in the growing cannabis industry with counsel regarding the current and proposed medical and adult-use cannabis laws and legislation and related state and Federal developments. Below is a brief recap of some of the insights we shared in 2017.

The election of Phil Murphy has poised New Jersey’s cannabis industry for rapid growth. Not surprisingly, businesses and consumers are eager for an implementation timetable. When asked, Governor-elect Murphy said “As soon as we can get there. We want to get this ball rolling. This is a 2018 priority.” Notwithstanding Murphy’s confirmation that cannabis legalization will be a primary legislative goal for next year, it may take one to two years to establish the necessary statutory and regulatory… Show more

The election of Phil Murphy has poised New Jersey’s cannabis industry for rapid growth. Not surprisingly, businesses and consumers are eager for an implementation timetable. When asked, Governor-elect Murphy said “As soon as we can get there. We want to get this ball rolling. This is a 2018 priority.” Notwithstanding Murphy’s confirmation that cannabis legalization will be a primary legislative goal for next year, it may take one to two years to establish the necessary statutory and regulatory structure to support a fully legalized cannabis industry in New Jersey. Show less

A New Jersey court recently ruled in Cooper Industries LLC v. Employers Insurance of Wausau A Mutual Co. that Cooper Industries is covered by a predecessor’s corporate general liability (CGL) policies for any liability the company incurs regarding Passaic River remediation efforts, including settlement payments. In support, the court determined that the insurers failed to prove that Cooper’s predecessor intended to cause environmental harm “comparable both as to severity and type with that for… Show more

A New Jersey court recently ruled in Cooper Industries LLC v. Employers Insurance of Wausau A Mutual Co. that Cooper Industries is covered by a predecessor’s corporate general liability (CGL) policies for any liability the company incurs regarding Passaic River remediation efforts, including settlement payments. In support, the court determined that the insurers failed to prove that Cooper’s predecessor intended to cause environmental harm “comparable both as to severity and type with that for which indemnification is sought,” thereby negating application of the policies’ pollution exclusions. Show less

The State of New Jersey must at least consider removing marijuana from the Schedule I list of controlled dangerous substances, according to a recent Appellate Division decision. In so ruling, the appeals court rejected the argument that the state needed to wait for the federal government to act first.

New Jersey voters will decide whether environmental settlement funds must be reinvested into anti-pollution efforts. In the past, funds have been used for non-environmental purposes, such as balancing the state budget.

The medical marijuana industry is closely monitoring Congress’ budget bills to determine the fate of the Rohrabacher-Farr amendment. The provision, which dates back to 2014, prohibits the U.S. Department of Justice from using federal funds to interfere with state laws legalizing medical marijuana.

The Ninth Circuit has recently sided with the Third Circuit and held that settlement agreements that do not specifically reference CERCLA liability can give rise to a CERCLA contribution claim.

As part of an initiative to streamline the process for approving infrastructure projects, President Donald Trump rolled back certain construction requirements applicable to federally-funded projects located in flood-prone areas. While the policy reversal was just one line of the Executive Order, it generated headlines because it came just days before Hurricane Harvey left most of Houston underwater.

In recent letters to the governors of several states that have legalized marijuana, the Attorney General emphasized that his agency still retains the power to enforce the federal ban on marijuana. He also detailed what he characterized as serious flaws in the states’ compliance with existing guidance from the Department of Justice regarding state-level legalization. Since Sessions’ letters have been made public, many of the facts used to support his allegations about states’ noncompliance with… Show more

In recent letters to the governors of several states that have legalized marijuana, the Attorney General emphasized that his agency still retains the power to enforce the federal ban on marijuana. He also detailed what he characterized as serious flaws in the states’ compliance with existing guidance from the Department of Justice regarding state-level legalization. Since Sessions’ letters have been made public, many of the facts used to support his allegations about states’ noncompliance with the Cole Memo have been debunked as either outdated or inaccurate. In addition, the states have supplied their own evidence of efforts that they are taking to address the legitimate concerns.

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The New Jersey Medicinal Marijuana Review Panel has recently recommended that the New Jersey Department of Health qualify numerous additional conditions for inclusion in the state’s Medicinal Marijuana Program.

A former NFL player, two children, and an Iraq War veteran suffering from post-traumatic stress disorder, all of whom are medical marijuana patients, together with a social justice nonprofit organization recently filed a federal lawsuit asserting that marijuana’s status as a “Schedule I” narcotic under the Controlled Substances Act is so irrational that it violates the U.S. Constitution.

New Jersey Sen. Cory Booker made national headlines when he recently introduced legislation to decriminalize marijuana on the federal level. Unlike prior efforts to remove marijuana from the Controlled Substances Act (CSA), the proposed bill also encourages states to pursue full legalization.

Shortly after taking office, President Donald Trump issued an Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” As the title implies, the Executive Order stated that “it is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and… Show more

Shortly after taking office, President Donald Trump issued an Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” As the title implies, the Executive Order stated that “it is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.” Show less

With legalization proponent Phil Murphy ahead in the race to become New Jersey’s next governor, businesses are already starting to prepare for the sale of recreational cannabis in New Jersey. However, banks and other financial institutions hesitate to provide services to businesses in the cannabis industry due to the continued federal illegality of cannabis cultivation, sale, and possession. As a result, one of the biggest challenges for cannabis-related businesses is securing access to… Show more

With legalization proponent Phil Murphy ahead in the race to become New Jersey’s next governor, businesses are already starting to prepare for the sale of recreational cannabis in New Jersey. However, banks and other financial institutions hesitate to provide services to businesses in the cannabis industry due to the continued federal illegality of cannabis cultivation, sale, and possession. As a result, one of the biggest challenges for cannabis-related businesses is securing access to financial institutions. Show less

The U.S. Environmental Protection Agency (EPA) recently proposed to amend its All Appropriate Inquiry Rule (AAI). Under the proposed rule change, the Standards and Practices for All Appropriate Inquiries would be amended to update an existing reference to a standard practice recently revised by ASTM International.

New Jersey lawmakers are considering legislation that would subject businesses engaging in soil and debris recycling services to the same regulation and oversight that applies to the solid waste industry.

In Matejek v. Watson, the NJ Appellate Division held that a property owner may compel neighboring property owners to share in the costs of investigating potential environmental contamination prior to establishing liability for the pollution.

Two environmental law decisions issued in March will separately expand and restrict the ability of private parties associated with contaminated properties to assert related claims under the New Jersey Spill Act.

A recent New Jersey Appellate Division decision that all property owners potentially responsible for contamination should share in investigation costs, even before a concrete finding of liability, may spur earlier contribution lawsuits throughout the process of probing a polluted site, instead of just at the end, experts say.

In large part, industry expansion over the last several years has been made possible through lenient enforcement of the federal prohibition against growth, sale and use of marijuana. However, fears of a federal reversal by President Trump and Attorney General Jeff Sessions are causing concern within the legal marijuana industry.

In the event that new dispensaries are to be approved in New Jersey, interested parties will need to be familiar and comply with several requirements.

At a 2015 conference, Colorado lawmakers shared the below insights regarding the legalization process with state legislators from around the country, many of which dovetail well with New Jersey’s ongoing initiatives and existing marijuana industry infrastructure.

Several bills regarding marijuana legalization currently pending before the New Jersey Legislature aim to lessen the restrictions on medical and recreational use. Here is a brief summary of the legislation under consideration.

A New Jersey court has ruled that receipt of a CERCLA General Notice Letter from the EPA can trigger coverage under a commercial general liability insurance policy.

A bill currently passed before the Legislature is designed to amend the the New Jersey Compassionate Use Medical Marijuana Act to clarify the rights and obligations of employers, employees, and job applicants regarding hiring and termination decisions in situations involving medical marijuana use.

Every three years, the EPA refocuses its resources and identifies “the most important environmental problems where noncompliance is a significant contributing factor and where federal enforcement attention can make a difference.” Starting October 1, 2016 and continuing for three fiscal years, the EPA will keep four of its current National Enforcement Initiatives (NEIs), add two new initiatives, and expand one to include a new area of focus.

EPA is proposing to revise regulations applicable to manufacturers whose operations generate hazardous waste. While certain of EPA’s proposed revisions may prove beneficial to such manufacturers, others may only complicate compliance efforts and increase costs.

Owners of contaminated residential properties often have great difficulty selling them due to real or perceived health threats associated with said contamination. However, if Assembly Bill No 1921 is enacted into law, owners of residential property contaminated with volatile organic compounds may be able to demand that the New Jersey Department of Environmental Protection offer to purchase it.