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Bar Journal - Spring 2004

The Environmental Protection Bureau, Past and Present

By:
 

I. INTRODUCTION

The Attorney General’s role in protecting the environmental resources of the state for the benefit and health of its citizens predates the 1972 formation of the Environmental Protection Bureau ("Bureau" or "EPB") by more than 135 years. The office historically has used its common law authorities, such as the power to abate and enjoin public nuisances, to protect the environment. As more specific environmental laws were passed, the office became responsible for enforcing these laws and for advising the agencies which administered them. Today, the Bureau performs two central functions: enforcing environmental laws through civil and criminal court actions; and providing legal counsel and representation to state agencies responsible for the protection, control and preservation of the state’s environment.1

Over the past decade, the scope of the Bureau’s affirmative litigation has broadened, as its attorneys have increasingly participated in interstate and complex litigation initiatives aimed at protecting the state’s air and water from threats that originate outside New Hampshire. At the same time, the Bureau has continued to be actively involved in critical in-state matters, such as the siting of energy facilities, the resolution of Superfund cases, and decisions on how and whether to regulate water use. Bureau attorneys participate extensively in many types of transactional matters, including Brownfields redevelopments and bankruptcy proceedings, where our aim is often to harmonize environmental cleanup and compliance with economic development of contaminated industrial sites.

This article explores the creation of the EPB, the long history of environmental protection by the Attorney General’s Office, and the current functions of the EPB.

II. OVERVIEW OF THE ENVIRONMENTAL PROTECTION BUREAU

The "Environmental Protection Division" of the Attorney General’s Office was first established in 1972.2 Initially staffed by a single attorney and a legal steno, the division’s duties and functions were consistent with those performed by the Environmental Protection Bureau ("EPB") today.3 By statute, the EPB is responsible for:

  1. Enforcing statutes pertaining to environmental protection, control, and preservation. 
  2. Counseling state agencies and commissions given responsibility over environmental concerns, including, but not limited to, the department of environmental services and he pesticides control board. 
  3. Exercising the common law powers of the attorney general to protect the environment. 
  4. Bringing public nuisance and other actions in superior court in the name of the state upon complaint by private citizens when in the opinion of the attorney general the activity or activities complained of may have a substantial impact upon the environment of the state.4

The present statute, like the 1972 law, requires cooperation from other state agencies:

The environmental protection bureau is hereby authorized to call upon any other state department, agency, commission, authority, or institution for whatever help or assistance the senior assistant attorney general deems necessary to investigate and prosecute cases involving environmental damage and such other departments, agencies, commissions, authorities, and institutions are hereby required to immediately cooperate with and assist the division without charge.5 

The EPB as it currently exists was created in 1985.6 Presently, the bureau includes seven attorneys, two paralegals, one legal assistant, and one part-time investigator. Other than the unifying theme of environmental protection, there is very little repetition in our daily practice. In a single day an EPB attorney may be called upon to deal with questions involving dams, monkeys, jet-skis and lobsters. The next day she may be faced with an "alphabet soup" of NSR,7 VOCs,8 ARARs9 and NPDES permits.10 While this is challenging, it is also exhilarating. In a practice area prone to extreme specialization, we are able to be generalists – or at least, sequential specialists. Attorneys working in the EPB are lucky enough to have among the most diverse law practices in the state.11

In many ways, the EPB functions as a microcosm of the attorney general’s office as a whole. Like the Criminal Justice Bureau, we prosecute major crimes involving harm or threatened harm to the environment or public health. Like the Consumer Protection Bureau, we protect the public by bringing civil and criminal enforcement actions against those who violate environmental laws. Like the Civil Law Bureau and the Transportation and Construction Bureau, we provide legal counsel to our client agencies, the Department of Environmental Services, the Fish and Game Department and some other smaller programs such as the Office of State Planning and Energy’s Coastal Program and the Agriculture Department’s Pesticide Control Division. And like the Charitable Trusts Unit, we exercise the traditional common-law authorities of the attorney general, in our case to protect the environment.

For all its breadth, the EPB’s practice is also very much grounded in specific facts and places. Most environmental cases are tied to a specific location where a construction project is proposed, where an industrial facility is located, or where waste has been dumped. We bring our enforcement cases in the county where the property at issue is located. As a consequence, the EPB typically has cases pending in every superior court in the state. Our work is directly related to the landscape of the state – not just the physical landscape, but the business and political landscape as well. We must, of necessity, be able to think and talk in very practical and specific terms about the way many things work. The "things" we must understand run the gamut – from foundries to finances, emissions to administrative procedure, dams to economic development.

III. HISTORIC ROLE OF THE ATTORNEY GENERAL IN ENVIRONMENTAL PROTECTION: COMMON LAW PUBLIC NUISANCE AND PUBLIC TRUST AUTHORITIES

The New Hampshire Attorney General’s Office has long played a role in protecting the health and physical environment of New Hampshire citizens.12 In the Buckman case, decided by the state Supreme Court in 1836, Attorney General Gove prosecuted an individual for

knowingly and maliciously putting the carcass of an animal into a well of water . . . from which the respondent well knew the said Wilson, and his wife and family, were in the daily and constant habit of drawing water and drinking and using the same; and the indictment alleged that by reason of putting said carcass into said well the water thereof became greatly corrupted, unwholesome and poisonous, and the said Wilson and his wife and family became greatly injured in health thereby.13

On an "I know one when I see it" theory, the Court concluded that such behavior, though not expressly prohibited by statute or common law, was nevertheless criminal in character:

There can be no question but the mixture of poisonous ingredients with the food or drink of another to such an extent as to impair the health of any individual receiving them, is punishable by indictment at common law; and water infected with the noisome particles and effluvia of a dead animal thrown into it, must partake of a character so poisonous and unwholesome as properly to come within this class of offences. . .14

Then as now, the attorney general’s duties included keeping "noisome particles and effluvia" out of the public’s water – or at least putting a stop to such offenses when they did occur.

In the early nineteenth century, the production of noxious odors and vapors, the contamination of drinking water, and the obstruction of public waterways all fell under the law of public nuisance.15 A public nuisance, as defined at common law, is any substantial and unreasonable interference with a right common to the general public.16 All types of public nuisances, whether "environmental" or not, were subject to abatement by the attorney general, and could also be abated by a member of the public who was specially affected by the nuisance.17 Nuisances could also be prosecuted as common law crimes, as in the Buckman case.18 Similarly, in the 1844 Lord case, the state brought criminal charges for maintaining a nuisance dam which flooded an abutting road.19 Despite its age, nuisance remains a viable legal theory,20 which the Bureau continues to use today, including in the MTBE case, discussed further below.

Besides the public nuisance authority, the other historically important common law power used by the Attorney General to protect the environment is the public trust doctrine. This ancient principle establishes that public waters, which include the ocean, great ponds and many rivers and streams, are owned by the state and held in trust for the benefit of the public.21 Public waters, by their nature, cannot be privately owned.22 Nevertheless, in a system that has long led to confusion and litigation, riparian owners have rights more extensive than members of the general public to use these waters.23 Both historically and in the present, such conflicts have often come to involve the state, and hence the Attorney General’s Office.24

While the public trust doctrine originally arose out of the use of water bodies for navigation, it came over time to encompass a broader set of rights for members of the public. The state’s interest in public trust waters encompasses "all useful and lawful" public purposes.25 Such public purposes include water storage, classification and health, as well as the traditional rights of all people to use and enjoy public waters through navigation, bathing, fishing, fowling, skating and cutting ice.26

As the nineteenth century came to a close, the importance of the attorney general’s role in protecting the water rights of the general public became increasingly clear. In 1870, the state brought a suit to ensure that anadromous fish, a resource common to all, were not barred by dams from passing up and down-stream.27 The Bureau still fulfills a similar function by participating in Federal Energy Regulation ("FERC") proceedings on behalf of the Fish and Game Department to ensure that hydroelectric dams licensed by the federal agency provide appropriate fish passage.28

Nuisance law and the public trust doctrine were historically linked, as public waters were viewed as highways and avenues of commerce as well as the power source for the mills that built the state’s economy. For example, in 1845 the New Hampshire Supreme Court ruled that only the attorney general could bring a nuisance action for obstruction of navigation – in this case, through construction of a bridge over the Piscataqua River. 29

In many ways, water has shaped the New Hampshire we know today. The state’s many streams and rivers powered the mills of the industrial revolution. Flowage rights were important, and were fiercely contested. Even in modern times, this continues to be true. The 1994 Tallman case was a trespass action for infringement of a flowage easement held by the state for storage of water behind a flood control dam during times of high water.30

As society has become more complex, the public trust doctrine has remained central in resolving questions about the use of public water resources. The state continues to be called upon to resolve questions that involve conflicts between different water users. For example, the state conducts lake level proceedings under RSA 482:79-83, adopts and implements instream flow rules under RSA 483:9-c, regulates groundwater withdrawals under RSA 485-C:21, and in governs the use of shoreline property under the Fill and Dredge in Wetlands Act, RSA chapter 482-A. For all of these regulatory schemes, public trust and water law concepts come into play, and the EPB is often called upon to offer legal advice or to litigate related issues.31

IV. ENVIRONMENTAL ENFORCEMENT ROLE

The common law protections of public nuisance and public trust form the historic foundation of the Bureau’s mission and are still relevant today. In addition, as time went by, the legislature adopted laws to address specific types of behaviors which cause harm to the environment. In turn, newly-created state agencies were called upon to implement these laws – and the attorney general’s office was called upon to assist those agencies with enforcement and to defend their actions.

Today, the largest percentage of the EPB’s time is spent enforcing environmental statutes. The Bureau has authority to take enforcement action under nineteen or more different statutes,32 governing activities ranging from the proper management and disposal of hazardous waste33 to the drilling of drinking water wells.34 New Hampshire environmental laws fall into three broad areas: protection of the state’s waters;35 prevention of air pollution;36 and appropriate management of wastes.37 Environmental laws typically carry a range of enforcement mechanisms, from administrative remedies to civil penalties, injunctive relief, and criminal penalties.38

One of the central functions of the Bureau is to assess whether to bring criminal charges for conduct that violates one or more environmental laws. In potentially criminal cases, the EPB conducts its own investigation and, independent of its client agencies, decides whether to move forward with criminal charges.39 Typically, criminal cases brought by the EPB involve the infliction or threat of serious harm to human health or the environment, the falsification of records, or a deliberate effort to evade regulatory requirements. Often the charges will include traditional criminal offenses, such as forgery or obstruction of justice, in addition to charges of violating environmental statutes. The number of criminal cases brought each year varies, but we rarely charge more than four or five defendants per year. Because of its limited investigative resources, the Bureau often brings its criminal cases in cooperation with federal authorities such as the federal Environmental Protection Agency’s Criminal Enforcement Division, or with local or county law enforcement agencies. The Bureau has brought criminal cases for violations of laws governing solid waste transportation and disposal, dredge and fill of wetlands, asbestos handling, and septage disposal.40

In our civil enforcement cases, we work closely with our main client agency, the Department of Environmental Services ("DES"). Because most environmental statutes carry a range of enforcement mechanisms (administrative, civil, criminal), our enforcement efforts start long before a case is filed in court. EPB attorneys attend periodic enforcement meetings with each DES program which has an enforcement role. At these meetings the DES program staff, legal staff and EPB attorney assigned to that program discuss a range of pending enforcement matters, including cases in development, ongoing administrative enforcement actions, and the status of cases that have been referred to our office. Typically, the cases that are referred to the EPB for civil enforcement involve one or more of the following factors:

  • serious harm or threat of harm to the environment or public health;
  • significant or flagrant deviation from the regulatory standard;
  • significant economic benefit to the violator as a result of the violation; or
  • persistent or repeat violations, or refusal to comply with administrative orders.

In other words, a matter gets to our office because it is significant and the state has concluded that serious action must be taken. DES handles the less serious cases administratively. 41

While nearly all of the Bureau’s civil enforcement cases are filed in Superior Court and actively litigated, very few of them go to trial. Even our requests for preliminary injunctive relief are often resolved by consent. It is typical for resolution to occur on the eve of trial or a hearing. When an EPB attorney does appear in front of a judge, it is often to enforce a settlement agreement. The settlements in EPB cases tend to be complex, involving site remediation and mitigation that may take years. Typically, defendants are made responsible for remedying the violation and any resulting harm, in addition to paying monetary penalties. In some cases, the defendants agree to undertake environmentally beneficial projects that go beyond correcting the harm they caused. Under appropriate circumstances, the Bureau allows defendants to conduct such projects, known as Supplemental Environmental Projects, or "SEPs," in lieu of a portion of the cash penalty.

Upon settlement of a case, the Bureau issues a press release. These releases are posted on the DOJ website.42 We also often issue press releases when a case is filed, and when a preliminary injunction is issued. These press releases are an important part of our enforcement efforts, as they serve to create a deterrent effect among other members of the regulated community. Recent settlements are summarized in the office’s biennial report, which is also posted on the DOJ website.

The facts laid out in the 1985 case of State v. Charpentier are an example of the office’s role in civil enforcement following creation of the EPB. What is notable about the case, and typical of many cases the Bureau handles, is the amount of effort necessary to attract the defendants’ attention. The Charpentier litigation involved a hazardous waste dump in Nashua on property owned by Mary Charpentier. As the Supreme Court explained, the facts in the case reveal "repeated attempts by the State to abate this public nuisance."43 Beginning in the early 1970’s, Charpentier’s son-in-law, Sylvester, operated a sand and gravel business on the property, then used it as a disposal site for refuse and demolition debris. As the court noted,

. . . . In 1975, the State filed suit against Sylvester and Mrs. Charpentier to enjoin further dumping of refuse on the Gilson Road dump site. That suit was concluded by a consent decree in 1976 . . . . In several subsequent contempt proceedings, Sylvester was found in contempt of the consent decree . . . In 1978 and 1979, Sylvester disposed of hundreds of barrels of hazardous chemical wastes on the property. From January until October of 1979, Sylvester arranged with others to have thousands of gallons of liquid chemical wastes disposed of through a buried drain located inside a commercial garage on the premises. The present action was brought by the State in February 1980 to recover damages for the cost of cleaning up the Gilson Road dump site, which now contains large quantities of hazardous chemical wastes.44

The course of conduct described in the Charpentier decision would be familiar to any EPB attorney. The need for multiple enforcement actions, including several cycles of contempt proceedings, against the same defendants, was once common in EPB civil enforcement cases.45 As defendants have come to realize that this approach is not likely to be successful in the long run, it has become less common. Now many cases, particularly where the defendants hire experienced environmental counsel, are approached in a more collaborative manner. Nevertheless, reaching and implementing a complete resolution of these complex matters often takes a long time.

V. ENVIRONMENTAL COUNSELING AND DEFENDING STATE AGENCIES

Apart from its enforcement responsibilities, the Bureau also plays a significant role in representing the interests of its client agencies.. The Bureau defends lawsuits and administrative challenges to the actions of these agencies. 46 Many of these cases involve challenges to environmental permitting decisions made by DES. The Bureau represents various DES programs in matters before the Air, Water, Waste and Wetlands Councils and in Superior Court involving challenges to the issuance or denial of permits.47 In particularly contentious matters, such as the North Country Environmental Services landfill in Bethlehem and the proposed USA Springs water bottling facility in Nottingham, Bureau attorneys are typically involved in advising DES on legal matters even during the permitting stage of the proceedings. Similarly, the Bureau has worked closely with the Fish and Game Department with respect to its proposed public boat access facilities.48

The Bureau also defends its clients in lawsuits not involving substantive permitting decisions, for example when they are sued in tort or contract actions, as well as in personnel actions and cases involving constitutional or federal statutory claims. For example, the state dam permitting program was involved in the tort action brought after a woman was killed by the failure of a private dam in Alton. Similarly, because it issues permits for hunting preserves, the Fish and Game Department was named as a defendant in an action against the Blue Mountain Hunting Preserve for crop damage allegedly caused by wild boars.49

In many of these cases, Bureau attorneys defend client agencies in court from claims with potential monetary significance. For example, in a case brought by the Town of Pittsfield, the Bureau successfully defended DES’s Dam Bureau against claims that dam registration fees imposed on dam owners, including municipalities which choose to own dams, violate Part II, Article 28-a of the New Hampshire constitution. On appeal, the New Hampshire Supreme Court summarily affirmed the Superior Court decision that the fee was constitutional.

In situations where client agencies have spent state funds to address environmental or natural resource-related problems, the Bureau pursues cost recovery against responsible parties. The Bureau has continued to be active in issues surrounding the state’s petroleum reimbursement funds for oil discharges. The Bureau advises both the DES and the Oil Fund Disbursement Board, which is administratively attached to the Department, on issues relating to reimbursement of cleanup costs to eligible owners.50 The Bureau has also represented the Board in a number of third party damage claims against oil facility owners to whom the Board is obliged to provide insurance.

In defending its client agencies, the bureau is involved on a regular basis in those particularly contentious cases that pit neighbor against neighbor, whether over water withdrawal rights, the location of odiferous facilities, or the appropriate use of waterfront property. Wherever the arguments are getting vehement and the mud is being slung, look for the EPB (typically alongside our client, DES) to be somewhere in the middle, under attack from both sides and looking to forge a compromise.

In addition to representing agencies in litigation, the Bureau provides ongoing legal counsel to assist its agencies in fulfilling their mandates. The Bureau, for example, performs "a background investigation of the performance history and criminal record of the applicant and its officers and directors" in the context of a solid waste facility application.51 Similarly, the Bureau helps DES review applicants’ eligibility for the State’s Brownfield program, which is designed to provide incentives for cleanup and redevelopment of hazardous waste contaminated properties. The Bureau also approves the final covenant not to sue for each property in that program.52

VI. INTERSTATE LITIGATION ACTIVITIES

At the same time, as environmental problems have grown larger and increasingly crossed state and even national boundaries, the Bureau’s practice has expanded beyond the state. Over the past few years the EPB has handled more and more cases in distant courts, including bankruptcy courts in Massachusetts, Delaware, New York, Maryland and West Virginia, and federal courts in Ohio, Washington, D.C., and New York. We are working jointly with other states in many coordinated efforts – to improve air quality throughout the Northeast, to craft fisheries policies that protect both the fishing industries and the long term fishing resources. Most recently, New Hampshire has become the first state to file suit in a nationwide effort to hold accountable those who made the choice to add the fast-moving contaminant MTBE to gasoline – and hence to our water supply.

Interstate Air Litigation

The Bureau has played a very active role in regional litigation initiatives to address the unique air pollution problems of the Northeastern states. Most recently, New Hampshire, along with all of the other New England states and a number of others, has filed suit against the EPA to stop regulations that would violate the Clean Air Act by rolling back clean air standards applicable to older industrial facilities under the "New Source Review" or "NSR" program.

Prevailing winds carry industrial pollution from the Midwest into New Hampshire, causing serious air quality problems and acid rain that degrades the state’s forests, lakes and streams, with accompanying impacts on the forestry and tourism economies. Much of this pollution comes from older industrial facilities that lack modern pollution control equipment. Under the Clean Air Act, these older facilities may remain in operation, but must install state-of-the-art emission controls when they make modifications that would cause significant air pollution. In its lawsuit against EPA, the state alleges that NSR "reforms" will exempt up to half of major sources from the requirement of installing emission controls when they make facility upgrades.

In related litigation, the Bureau has continued its active involvement in a citizen suit against an upwind midwestern utility, American Electric Power, for violation of Clean Air Act requirements and resulting harm to New Hampshire’s air quality.53 The state is prosecuting the suit along with EPA and seven other northeastern states. The suit alleges that AEP constructed major, life-extending upgrades to eleven of its midwestern coal-fired power plants, and increased emissions that harm the northeastern states without installing state-of-the-art pollution controls as required by the Clean Air Act. Both of these suits, along with a number of others related to regional air pollution problems, remain pending in federal courts.

Fisheries Protection

The Bureau has also assisted the Fish and Game Department in interstate activities. In January of 2002, the State intervened in CLF v. Donald Evans, a federal lawsuit brought in Washington, D.C. by citizens groups against the National Marine Fisheries Service, which regulates commercial fishing nationwide. Immediately prior to the intervention, the court had issued an order finding that important New England fisheries regulations were unlawful. On behalf of the State, Bureau attorneys participated in negotiations that resulted in an interim regulatory regime that, while still painful to New Hampshire fishermen, was better than what the court would likely have ordered without the state’s participation.

Berlin-Gorham Mills

On September 10, 2001, American Tissue, Inc., the owner of the pulp and paper mills in Berlin and Gorham, filed for bankruptcy, shortly after abruptly ceasing operations at the two facilities. The mills were the largest employer in the entire North Country, and also were a major market for timber operations that employed many more people. Not only did 850 workers lose their jobs, but the mill closures created a ripple effect with devastating consequences for the entire region.

From an environmental perspective, the effects of the bankruptcy filing were also potentially disastrous. The pulp mill in Berlin had never been closed since it opened over one hundred years earlier. At the time operations ceased, the plant contained a million gallons of hazardous process chemicals which, if not properly contained and kept warm, could be released into the Androscoggin River and the surrounding area. The mill complex included the Mt. Carberry landfill, which served not only the mills but also the surrounding communities. Further, several areas of contamination from long-term mill operations still needed to be addressed over the long-term, making the facility unattractive to potential buyers.

Despite the dire situation, within nine months of the bankruptcy filing, a new company had purchased the mills and was set to begin operations. This could never have happened without an intensive, multi-agency effort led by the Governor’s office, in which Bureau attorneys played key roles. By participating in the complex, fast-paced bankruptcy proceedings in Delaware with the vigilance of, as New York Newsday put it, "a lioness protecting her cubs,"54 the state was able to secure what it needed despite the fact that American Tissue’s finances and operations were a shambles and its officers under indictment. Through the bankruptcy law expertise of one Bureau attorney, the state was able to ensure that the bankruptcy estate provided funds to winterize the mills and contain the hazardous chemicals, and paid $1,000,000 to the State for clean up of a PCB contaminated site. The landfill also remained in operation.

Bureau attorneys, along with DES, the Department of Resources and Economic Development and the federal Environmental Protection Agency and Department of Justice, participated in extensive negotiations with potential buyers. The goal was to provide sufficient flexibility to allow a transfer of the operations to a new owner to occur without creating environmental harm, while providing the new owner with some extended timeframes to address compliance issues. As part of the ultimate agreement, the bankruptcy estate paid millions of dollars in real estate taxes to North Country municipalities. The Bureau was proud to contribute to a successful resolution of a situation that at times seemed impossible to resolve.

MtBE Litigation

In its most recent initiative, the Bureau has filed the first lawsuit by a state seeking to recover damages from oil companies which chose to add the chemical "methyl tertiary butyl ether" ("MTBE") to gasoline, causing widespread contamination of the state’s waters with a chemical that is costly to find and remove.55

The lawsuit, filed September 30, 2003 in Merrimack County Superior Court, claims that twenty-two major oil companies, including ExxonMobil Corporation and Lyondell Chemical Company, have added increasing amounts of MTBE to New Hampshire’s gasoline even though they knew years ago that it would contaminate water supplies.56 The state alleges that the manufacturers and refiners produced a defective product, created a public nuisance and violated state environmental and consumer protection laws. The state has asked the court to hold the companies responsible for all costs associated with addressing the problem, including investigative and cleanup costs, and to assess monetary penalties.57

Although the MTBE lawsuit has been removed to federal court and is being considered as part of multidistrict MtBE litigation in the federal district court for the southern district of New York, the state has filed a remand motion seeking to return the case to state court. In addition, the Attorney General has praised the New Hampshire Congressional Delegation for opposing a federal legislative effort to insulate MTBE manufacturers and distributors retroactively from products liability claims such as those raised in the state’s suit.58

VII. CONCLUSION

Looking at how environmental practice at the Attorney General’s Office has evolved over time shows the changes in New Hampshire’s landscape and way of life. The fact patterns, the statutes and the names of our client agencies have changed many times. But what is striking in reviewing Supreme Court cases handled by members of the EPB and their pre-1972 predecessors is the familiarity of the role the office played, even in cases from long ago. The EPB has often acted as enforcer, as protector of the public. But ours is a cautious vigilance, one that defers to agency expertise and decision-making, that lets private parties work out their own disputes where possible, that understands the importance of economic development, that while willing to compromise, is not willing to turn a blind eye to problems that will ultimately fall to future generations if we do not address them now. Whether dead animal carcasses in 1836, or MTBE today, the EPB is working to protect New Hampshire’s environment for the benefit of all citizens of the state.

ENDNOTES

  1. RSA 21-M:10.
  2. 1972 N.H. Laws 60:38, enacting former RSA 7:18-a-7:18-c. See also 1985 N.H. Laws 410:6.
  3. Id. The only difference in the statutory language concerns the names of the division’s client agencies, which have changed over time. Of course, the attorney general’s office as a whole was much smaller in 1972 than it is today; the same chapter that created the environmental protection division also expanded from ten to fourteen the total number of assistant attorneys general. 1972 N.H. Laws 60:43.
  4. RSA 21-M:10, II.
  5. RSA 21-M:10, III.
  6. 1985 N.H. Laws 300:1 established the present statute, RSA 21-M:10.
  7. New Source Review, or "NSR," is a program under the federal Clean Air Act which requires new air pollution sources which would increase emissions to install state of the art pollution controls. See Clean Air Act § 411, 42 U.S.C. § 7411. The state of New Hampshire has sued the federal Environmental Protection Agency challenging "reforms" to the NSR program which, we contend, will increase air pollution carried in from out of state.
  8. Volatile organic compounds, or "VOCs," are "a group of chemicals composed primarily of carbon and hydrogen that have a tendency to evaporate (volatilize) into the air from water or soil. VOCs include substances that are contained in common solvents and cleaning fluids. Some VOCs are known to cause cancer." Definition from Superfund Glossary, http://www.epa.gov/region1/superfund/basics/gloss.htm#v.
  9. Appropriate and relevant applicable requirements; see CERCLA § 121(d), 42 U.S.C. § 9621.
  10. National pollutant discharge elimination system; see Clean Water Act § 402, 33 U.S.C. § 1342.
  11. To my surprise, I have found that there is not a topic on the bar exam, except perhaps domestic relations, which has not in some way been relevant to my ten-year practice in the EPB.
  12. My review of old cases is anecdotal, intended to shed light on the types of cases that existed historically and how they are both similar to and different from those we handle today. This article is not a comprehensive treatise on New Hampshire environmental law, but rather an overview of the functions of the EPB and its predecessors.
  13. State v. Buckman, 8 N.H. 203 (1836).
  14. Id. at 205-206.
  15. Historically, public nuisances ranged widely in subject matter, from obstructing highways to liquor offenses and "disorderly houses." See, e.g. Lord v. State, 16 N.H. 325 (1844)(gaming house); State v. Atherton, 16 N.H. 203 (1844)(obstructing highway); State v. Garity, 46 N.H. 61 (1855)("disorderly house"). See Prosser and Keaton on Torts, § 86 at 616 (5th Ed.)("There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’").
  16. Robie v. Lillis, 112 N.H. 492, 495 (1972), citing Restatement (Second) of Torts, 821B(1), at 3 (Tent. Draft No. 17, 1971). By contrast, a private nuisance is a tort only, not a criminal offense, and must involve interference with a property right Id., citing Restatement (Second) of Torts, s. 822, at 22. Both types of nuisance share the common element of unreasonable interference.
  17. See, e.g., State v. Hutchins, 79 N.H. 132 (1919); Urie v. Franconia Paper Corp, 107 N.H. 131 (1966).
  18. Buckman, 8 N.H. 203 (1836).
  19. State v. Lord, 16 N.H. 357 (1844).
  20. See, e.g., Cook v. Sullivan, 829 A.2d 1059 (2003)(affirming superior court ruling that defendants created a private nuisance on their neighbors’ property by filling and dredging wetlands).
  21. Concord Mfg. Co. v. Robertson, 66 N.H. 1 (1889); St. Regis Paper Co. v. N. H. Water Resources Board, 92 N.H. 164, 170 (1942).
  22. The public trust doctrine has its roots in the ancient Roman concept of natural law that held certain things, including the shores of water, were by their nature common to all. See Opinion of the Justices (Public Use of Coastal Beaches), 139 N.H. 82, 87 (1994).
  23. See generally Sundell v. New London, 119 N.H. 839, 844 (1979) ("It is clear, therefore, that although waters of great ponds are public waters, littoral owners nevertheless have private property rights which are separate from, independent of, and more extensive than the public’s right.") As with public and private nuisance, water rights are subject to both public and private enforcement. Id. ("It is for interference with these private littoral rights that the plaintiffs seek damages, not for interference with rights common to the public.").
  24. See, e.g., Purdie v. Attorney General, 143 N.H. 661 (1999) (affirming ruling that RSA chapter 483-C, which in the court’s view expanded public trust rights in coastal shorelands beyond their extent at common law, effects an unconstitutional taking of private property); Claridge v. NH Wetlands Board, 125 N.H. 745 (1984).
  25. State v. Sunapee Dam Co., 70 N.H. 458 (1906).
  26. "In this state any member of the public may exercise a common-law right to boat, bathe, fish, fowl, skate and cut ice in and on its public waters." Whitcher v. State, 87 N.H. 405 (1935), see also State v. George C. Stafford & Sons, 99 N.H. 92 (1954); Hartford v. Gilmanton, 101 N.H. 424 (1958).
  27. State v. Franklin Falls Co., 49 N.H. 240 (1870) See also Connecticut River Lumber Co. v. Olcott Falls Co., 65 N.H. 290 (1889)(" The public right of navigation in navigable water, salt or fresh, is held by the state in . . . trust. It is a right that all may receive for private profit. The state, as trustee, holds the legal title. The state, and the people as individuals, have the use. The object of the trust is evidence tending to show that the common right of navigation is not unnecessarily extinguished by a mere conveyance of land, or by a mere creation of an imaginary being called a corporation.").
  28. The Fish and Game Department is a coordinating agency under the Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq., and Section 10(j) of the Federal Power Act, 16 U.S.C. § 803(j). Where appropriate, the Bureau files for administrative and judicial review of FERC licensing decisions which do not fully incorporate Fish and Game’s recommendations.
  29. Dover v. Portsmouth Bridge, 17 NH 200 (1845).
  30. State v. Tallman, 139 N.H. 223 (1994).
  31. Often this advice is rendered in the course of litigation or as agency advice during a particular proceeding. Sometimes, however, it takes the form of a formal Attorney General Opinion. See, e.g., 1989 N.H. AG LEXIS 21::August 2, 1989 (Loon Mountain Ski Area South Mountain Expansion Project); 1998 N.H. AG LEXIS 2::February 11, 1998 (legal standard for determining whether or not a particular river is a public water).
  32. See listing on DOJ website, http://doj.nh.gov/environmental.html.
  33. RSA chapter 147-A.
  34. RSA chapter 482-B.
  35. See generally RSA Title L, Water Management and Protection.
  36. See RSA chapter 125-C, et al.
  37. See RSA chapter 147-A (hazardous waste management) and RSA chapter 149-M (solid waste management), as well as RSA chapters 146-A and 146-C (oil spills).
  38. See, e.g., RSA 482-A:14; RSA 485-A:22; RSA 125-C:15; RSA 149-M:12.
  39. The Fish and Game Department brings its own criminal prosecutions for violations of the hunting laws, which are not enforced directly by the EPB.
  40. See, e.g., State v. Naughton, 139 N.H. 73 (1994) and State v. W.J.T. Enterprises, 136 N.H. 490 (1992) (both criminal prosecutions under solid waste statute); for descriptions of more recent criminal cases, see EPB press releases at http://doj.nh.gov/publications/news.html.
  41. See DES Compliance Assurance Response Policy ("CARP"), http://www.des.state.nh.us/legal/carp for the criteria the agency uses to assess appropriate administrative enforcement action and to determine whether to refer a case for civil enforcement.
  42. Recent press releases are available at http://doj.nh.gov/publications/news.html. See, e.g., "Town of Salem to pay $13,000 Civil Penalty for Violations of Drinking Water Rules" - January 4, 2004; "Court Orders Stabilization and Restoration of Northwood Wetlands" – November 25, 2003; "Marlow Couple Ordered To Cease Sewage Discharges And Install State Approved Septic" - November 25, 2003.
  43. State v. Charpentier, 126 N.H. 56, 58 (1985).
  44. Id. at 58-59.
  45. Like several other highly contaminated sites, the Gilson Road dump site ultimately became a Superfund site. While active remediation at the Gilson Road (aka Sylvester) site is now complete, the site is subject to ongoing groundwater monitoring. For a listing of New Hampshire Superfund sites, see http://yosemite.epa.gov/r1/npl_pad.nsf/SelectedByState?OpenForm&View=New%20Hampshire.
  46. For example, in 1946 the Attorney General successfully defended the constitutionality of legislation giving the State Board of Health the power to require a town to supply "a suitable public system of sewerage." Meredith v. State Board of Health, 94 N.H. 123 (1946). The New Hampshire Supreme Court concluded that the statute was not an unconstitutional delegation of legislative powers. Some years later, after the Board of Health had been replaced by the Water Supply and Pollution Control Commission, the Attorney General successfully defended the Commission’s decision not to allow a sewer extension sought by the City of Manchester, on the basis that the design submitted would tend to exacerbate pollution and create a nuisance. Roy v. Water Supply and Pollution Control Commission, 112 N.H. 87 (1972). The Roy court’s discussion of the agencies’ development is interesting from an historical perspective. It reveals that the state Board of Health was established in 1881 (Laws 1881, 64:6). In 1947, the General Court "established the Water Pollution Commission as an independent agency. Its primary duties were to investigate pollution of surface waters, to recommend classification of surface waters, and to enforce such classification." Laws 1947, ch. 183 (a predecessor of the present-day RSA 485). After being transferred briefly back to the Department of Health and Welfare in the early 1960s, in 1965 the Water Pollution Commission was again made an independent agency with expanded authority: which included "recreation camps, public water supply, public sewerage and sewage treatment works, sewage disposal, public swimming pools and bathing places, protection of sources of water and ice, auxiliary public water supply, testing of public and private water supplies."
  47. The four DES Councils hear appeals from many agency decisions. See RSA 21-O:5-a (Wetlands Council); RSA 21-O:7 (Water Council); RSA 21-O:9 (Waste Management Council); RSA 21-O:11 (Air Resources Council). For all but the Wetlands Council, subsequent appeal is to the New Hampshire Supreme Court under RSA chapter 541. Wetlands Council decisions are appealed to the Superior Court, then to the Supreme Court. See RSA 482-A:10.
  48. RSA chapter 233-A, implemented by the Fish and Game Department, governs the state public boat access program.
  49. See RSA 467:5 ("Any person or corporation owning or possessing wild boar in this state who shall violate the provisions of RSA 467:3 [requiring safe and suitable enclosure] shall be liable in an action of trespass for all damage done by said wild boar to the lands, properties or persons of others.").
  50. See RSA chapter 146-E.
  51. RSA 149-M:9.
  52. RSA 147-F:4, III (determination of eligibility); RSA 147-F:6 (covenant).
  53. See Smith, Maureen, Transboundary Air Pollution: Enforcing the Clean Air Act, 42 N.H. Bar J. 4 at 6 (2001), which discusses the AEP case and other Bureau air initiatives in detail.
  54. Madore, James T., "Granite State Takes the Hard Line," New York Newsday, March 25, 2003, Nassau and Suffolk edition, p. D09.
  55. The state’s suit alleges that MTBE has been associated with adverse health consequences and can render water unpalatable, even at very low levels. Because MTBE dissolves easily in water, it travels faster and farther than other gasoline constituents and is more difficult to find and remove, making cleanup more expensive. Although the state has been at the forefront of adopting strict gasoline storage regulations, the suit alleges, MTBE is still escaping into the environment. Contamination often is not traceable to a particular source or spill and may not even be associated with underground leaks at gas stations.
  56. The State’s Writ of Summons and Declaration may be found on the Department of Justice website, at http://doj.nh.gov/publications/nreleases/pdf/MTBE_Declaration.pdf.
  57. Approximately 60% of the state’s population relies on groundwater wells for drinking water. The state’s lawsuit cites several statistics on contamination of those supplies. For example, as of 2002, MTBE was detected in more than 15% of the public water supplies tested statewide. More than 33% of those tested in Strafford County and more than 23% of those tested in Rockingham County contained some level of MTBE contamination. In addition, the state’s preliminary analysis of more recent data generated by a joint DES/U.S. Geological Survey study of Rockingham County’s public water systems, which used lower detection limits, shows that 41% of those tested contain some level of MTBE. The state also estimates, based on studies from other states, that about 40,000 private wells in New Hampshire contain some level of MTBE.
  58. "Attorney General Praises Delegates for Stance on Energy Bill" - November 18, 2003. See http://doj.nh.gov/publications/nreleases/111803attorney.html.

Author

Jennifer J. PattersonJennifer J. Patterson is a Senior Assistant Attorney General and the Chief of the Environmental Protection Bureau at the Department of Justice, Concord, New Hampshire.

 

 

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