Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chemical Co

In Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chemical Co., 216 N.J. Super. 166, 175-76, 523 A.2d 250 (App.Div.1987), a group of citizens sued the DEP pursuant to the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq., in order to compel the DEP to institute action to control and remediate dioxin pollution. Although the DEP had already taken some steps to control the danger presented by dioxin discharges, the plaintiffs contended that the Department had a ministerial duty to take additional action pursuant to an Executive Order issued by the Governor, which directed the Commissioner to take action to protect the public health and safety. Id. at 176, 523 A.2d 250. Although the court rendered its decision in the context of the Environmental Rights Act, the I.H.R.A.C. decision is relevant to the plaintiff's claims for injunctive relief here because the court's interpretation of that statute relied in part on traditional principles of mandamus. The court held that the Environmental Rights Act does not create a private right to bring an action to compel the DEP to institute enforcement. At the same time, however, it stated that even if the Environmental Rights Act did create such a right, it ". . .would be limited to the common law remedy of mandamus--the right to compel the State to perform a required nondiscretionary function." Id. at 174, 523 A.2d 250. Noting that the Commissioner had not ignored the Executive Order, but in fact had taken some action to enforce it, the court found that the degree and manner in which the order would be enforced was a matter for the Department's discretion, and therefore was not a proper subject for mandamus. Id. at 175-177, 523 A.2d 250.