(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
judgment of the Appellate Division is based substantially on the reasons expressed in Judge
Wefing's opinion below.)
Argued October 22, 2001 -- Decided December 20, 2001
PER CURIAM
The question presented in this appeal is whether the State of New Jersey may be held liable for any portion
of prospective losses incurred in the operation of resource recovery facilities as a result of the federal courts'
holdings striking down as unconstitutional New Jersey's regulation of waste control and disposal. Atlantic Coast
Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County,
931 F.Supp. 341 (D.N.J. 1996),
aff'd,
112 F.3d 652 (3d Cir. 1997), amended,
135 F.3d 891 (3d Cir. 1998).
Plaintiff Camden County Energy Recovery Associates (CCERA) is a private partnership that received a
franchise in 1987 from the then-Board of Public Utilities (BPU) for the disposal of solid waste from twenty-six
municipalities in Camden County. In return, CCERA agreed to develop and operate a resource recovery facility in
the County. Construction of the facility was financed in part through bonds issued by the Pollution Control
Financing Authority of Camden County (PCFA). A small portion of PCFA's bonds were guaranteed by Camden
County.
CCERA charged tipping fees, approved by the New Jersey Department of Environmental Protection
(DEP), for the disposal of waste at the facility. The fees were computed to provide a reasonable return for CCERA
and to pay off PCFA's bonds. Similar techniques were adopted throughout the State, resulting in fees charged for
required in-State waste disposal that at times exceeded fees for disposal outside the State.
A practical consequence of the Atlantic Coast decisions was that resource recovery facilities such as the
one constructed in Camden County were no longer guaranteed to receive a certain quantity of waste. As a result,
the revenue stream that had been guaranteed by CCERA's exclusive rights and that had served as the source of
repayment for the bondholders was jeopardized.
Subsequent to the Atlantic Coast decisions, PCFA solicited new bids for operation of the resource recovery
facility. CCERA commenced this action to restrain PCFA from opening those bids until it was determined whether
the public entities would hold CCERA responsible for some portion of the facility's outstanding indebtedness.
Camden County and the PCFA filed counterclaims and cross-claims, including a demand for indemnification from
the State. The State, on behalf of the Department of Community Affairs (DCA) and the DEP, moved to dismiss all
claims against it for failure to state a claim on which relief could be granted. The trial court denied the State's
motion, deciding to permit limited discovery to determine whether there were any equitable grounds for relief
against the State.
The Appellate Division reversed, concluding that the claims against the State were a fundamental challenge
to high-level policy decisions for which the State could not be held judicially accountable.
320 N.J. Super. 59. The
Appellate Division explained that permitting the case to proceed would represent an inappropriate judicial incursion
into the responsibilities of coordinate branches of government, and instructed the parties that any relief would have
to come from the legislative or executive branches.
The Supreme Court granted certification.
HELD: The State's creation and implementation of a constitutionally flawed waste control and disposal policy did
not create judicially-enforceable contractual rights for appellants.
Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge
Wefing's opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, and ZAZZALI join in
this opinion. JUSTICES LONG and LA VECCHIA did not participate.
SUPREME COURT OF NEW JERSEY
A-121/122/
123 September Term 1998
CAMDEN COUNTY ENERGY RECOVERY
ASSOCIATES, L.P., A New
Jersey Limited Partnership,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION and
NEW JERSEY DEPARTMENT OF
COMMUNITY AFFAIRS, Division
of Local Government Services,
Defendants-Respondents,
v.
THE BOARD OF CHOSEN
FREEHOLDERS OF THE COUNTY OF
CAMDEN, THE POLLUTION CONTROL
FINANCING AUTHORITY OF CAMDEN
COUNTY and THE CAMDEN COUNTY
IMPROVEMENT AUTHORITY,
Defendants-Appellants.
Argued October 22, 2001 -- Decided December 20, 2001
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 320
N.J. Super. 59 (1999).
Gage Andretta argued the cause for appellant
Camden County Energy Recovery Associates,
L.P. (Wolff & Samson, attorneys; Mr.
Andretta and Stephen H. Bier, on the brief).
Deborah Silverman Katz, Assistant County
Counsel, argued the cause for appellant The
Board of Chosen Freeholders of the County of
Camden (Robert G. Millenky, Camden County
Counsel, attorney; Ms. Katz and Mr.
Millenky, on the brief).
Stephen J. DeFeo argued the cause for
appellants The Pollution Control Financing
Authority of Camden County and The Camden
County Improvement Authority (Brown &
Connery, attorneys; William M. Tambussi and
Susan M. Kanapinski, on the brief).
James H. Martin, Deputy Attorney General,
argued the cause for respondents (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Mr. Martin and
Daniel P. Reynolds, Deputy Attorney General,
on the brief).
PER CURIAM
We affirm the judgment of the Appellate Division
substantially for the reasons expressed in Judge Wefing's
thoughtful and persuasive opinion. In affirming, we are mindful
of information provided at oral argument that, because of
legislative appropriations, none of the bonds issued by the
Pollution Control Financing Authority of Camden County is in
default and that the Legislature is continuing to pursue a
comprehensive solution to the statewide problem characterized by
this litigation.
Notwithstanding Camden County's contention before us that
its claim for declaratory judgment relief against the State
should survive the Appellate Division's disposition, we agree
that all claims against the State are to be dismissed. In our
view, the Appellate Division's disposition clearly and adequately
provides the County with the declaration of “rights, status and
other legal relations,” N.J.S.A. 2A:16-52, that it sought
pursuant to its amended cross-claim.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO,
and ZAZZALI join in this opinion. JUSTICES LONG and LaVECCHIA
did not participate.
NO. A-121/122/123 SEPTEMBER TERM 1998
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
CAMDEN COUNTY ENERGY RECOVERY
ASSOCIATES, L.P., A New
Jersey Limited Partnership,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION and
NEW JERSEY DEPARTMENT OF
COMMUNITY AFFAIRS, Division
of Local Government Services,
Defendants-Respondents.
DECIDED December 20, 2001
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY