The State Is Not Liable For Pre-Enactment Conduct Under The Spill Act

In NL Industries, Inc. v. State, Docket No. 076550, decided on March 27, 2017, the Supreme Court of New Jersey held that the State of New Jersey's waiver of sovereign immunity for contribution claims under the Spill Compensation and Control Act ("Spill Act"), N.J.S.A. 58:10-23.11, et seq., does not apply to State conduct that occurred before the Spill Act's enactment. The Court's decision will have significant implications, including creating immunity for the State and its political subdivisions from Spill Act liability for historic contamination.

Background

In 1968, a private developer notified the State that it desired to build a seawall using "slag" to replace an existing beachfill protective structure. The State took a hands-on role in seeking and obtaining federal and local approvals for the seawall project. During the late-1960s and early-1970s, the seawall was constructed, at least partially, on beach property owned by the State. Lead contamination was