State v. Jersey Cent. Power & Light Co.
Citation: 6 ELR 20352
No. No. A-28, 351 A.2d 337/69 N.J. 102, (N.J., 01/22/1976) Rev'd
The State of New Jersey cannot collect damages for injury to public trust resources because of a fish kill which followed the pumping of cold water from one stream through defendant's temporarily shutdown nuclear power plant into another stream where the fish had been attracted by the plant's thermal discharge. Since the circulation of cold waters through the plant merely duplicated a natural condition, the plant shutdown and resulting discharge of cold water is not a cause in fact of the fish deaths, because the fish would have died absent any action by defendant. Water is not per se a hazardous substance within the meaning of a state statute prohibiting the discharge of such substances. The defendant had no duty to warm the receiving waters for the menhaden. Damages for injury to public trust resources cannot be awarded absent a showing of negligence, and negligence cannot arise from otherwise lawful operation of the power plant. Indeed, the thermal discharge at issue result from federal operations specifications relating to radiation hazards posed by nuclear plant operation, which preempt any state regulation of the plant's pumps. In this case, excessive radioactive leakage caused the plant shutdown and the cold water circulation for radiation dilution. The questions of whether the state may maintain an action in its parens patriae role, and whether strict liability ought to apply to damage to public trust resources, are not reached. The lower court decisions, 125 N.J. Super. 97, 3 ELR 20840 (Law Div. 1973), aff'd 133 N.J. Super. 375 (1975), are reversed.
Counsel are listed at 3 ELR 20840.
SULLIVAN, J., concurring in the result.
For reversal: Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and SCHREIBER and Judge CONFORD — 7.
For affirmance: None.