Murphy DEP Blasted By Environmental Justice Advocates For Proposing Approval Of Newark Gas Power Plant

Potemkin Permit Based On A Regulatory House Of Cards

• DEP Air Permit Exposes Prior Misleading DEP Claims That Project Was A "Local Issue"

• In Order To Kill The Permit And Block The Plant, EJ Activists Will Have To Admit That The EJ Law They Strongly Supported Is A Sham

It does not please me to make arguments and observations that essentially are adverse to environmental justice concerns. I was documenting and advocating EJ positions many years before EJ became a priority issue and NJ's EJ law was enacted. However, I am bound by reality, not by what I'd like reality to be.

The Murphy DEP just proposed approval of an air pollution permit for a proposed new gas power plant at the Passaic Valley Sewerage Commission (PVSC) regional sewage treatment plant in Newark.

That proposed PVSC fossil power plant has become a huge battleground and test case for the Murphy Administration's allegedly "historic" 2020 environmental justice law and the DEP's highly touted "environmental justice regulations", adopted in 2023.

During the course of the public debate, Murphy DEP Commissioner LaTourette made several false and misleading statements regarding the environmental justice law and his own "Administrative Order". LaTourette also implied that the decision to approve the plant was a local issue, not DEP's.

But DEP's proposed draft permit approval exposes those DEP falsehoods.

And the fact that DEP has agreed to approve the plant, despite blatant environmental justice and climate issues, exposes the EJ law and Global Warming Response Act as toothless. 

Interestingly, all the Newark and EJ activists and organizations who championed the EJ law and strongly supported the DEP's EJ regulations (read Gov. Murphy's press release) - including Maria Lopez-Nuñez, Deputy Director of Organizing and Advocacy for the Ironbound Community Corp. ; Kim Gaddy, National Environmental Justice Director for Clean Water Action, Melissa Miles, Executive Director for the New Jersey Environmental Justice Alliance, Dr. Nicky Sheats, Ph.D., Director for the Center for the Urban Environment, John S. Watson Institute for Urban Policy and Research at Kean University, and New Jersey Progressive Equitable Energy Coalition Chairman Marcus Sibley - all now vehemently oppose the DEP's draft permit to approve the facility.

The new PVSC gas plant would be the fourth power plant in Newark, which also hosts a regional garbage incinerator and garbage transfer stations, sewage treatment plants, ports, toxic waste sites, heavy traffic, and other major industrial pollution sources and therefore is a designated over-burdened "environmental justice community" under NJ's environmental justice law.

I)  The DEP Has Proposed a Potemkin Permit And Built A Regulatory House Of Cards

The DEP's regulatory response to this project is a mess, as is the strategy of environmental justice and climate activists.

For political reasons, Murphy DEP Commissioner LaTourette has created a regulatory house of cards in an effort to pacify the Newark Community, evade accountability, and divert attention from massive loopholes in NJ's toothless EJ and Global Warming Response Act laws.

It is now obvious that that effort has failed.

But, ironically, in order for Newark environmental justice and climate activists to defeat this permit, they will have to honestly admit major flaws in the very laws that they have championed and worked so hard to enact and support.

This will be extremely difficult to do, because they have praised these laws, supported Commissioner LaTourette, and thereby misled the public for years.

Strategically, an honest attack on those laws and the kind of legal criticism necessary to kill this DEP permit might be perceived as phyrric victory: win the battle, but lose the war.

Regardless, let me be perfectly clear: The DEP's "special conditions" are not only technically inadequate window dressing, they are illegal and unenforceable and they will be challenged in court and defeated if DEP adopts them in a final permit. Period.

[Full disclosure: I was wrong in my prediction that the "special EJ conditions" were just a bluff. I mistakenly assumed that lawyers at the Attorney General's Office would never allow DEP to issue such a legally flawed draft permit and expose the State to legal embarrassment and certain lawsuit.

I predicted:

My guess is that DEP Commissioner LaTourette is not only gaslighting the public to avoid revealing those regulatory shams.

My guess is that he’s bluffing the PVSC Commissioners and attempting to generate public pressure on them to abandon the project.

In other words, LaTourette is putting a regulatory gun to the head of PVSC, but that gun is loaded with blanks.

My guess is that Commissioner LaTourette thinks that if the PVSC Commissioners are required to comply with the DEP’s “special conditions” and spend millions of dollars for a power plant they can not use, then they will realize that the economics don’t work and abandon the project.

But this stunt won’t work. PVSC has competent lawyers

(Note: and the precedent established if this permit is allowed to stand would be an incredible expansion of DEP's regulator power. No way powerful corporate interest allow that to stand.)

II) The Architecture Of The DEP's Regulatory House Of Cards 

The DEP draft air permit includes the "special environmental justice conditions" DEP developed in response to outrage by the Newark community.

Prior to issuing the draft permit, in response to that community outrage, DEP Commissioner LaTourette issued a unilateral "Administrative Order 2021-25" directing DEP staff to conduct an "environmental justice review" of the project. Commissioner LaTourette claimed:

AO 2021-25 will ensure meaningful community engagement, a more thorough and complete assessment of facility impacts to environmental and public health stressors, and the implementation of appropriate measures to avoid or minimize adverse impacts.

Note that this Order did NOT include the possibility of denying the permit. This is no accident. Commissioner LaTourette, a former corporate lawyer, knew all along that his Order was toothless and DEP lacked the legal authority to deny the permit. This manipulation and spin by LaTourette is unforgivable.

[Clarification: there are actually 4 reasons why the DEP can not deny this PVSC permit on EJ grounds: 1) the EJ law does not apply because the permit application was submitted prior to the adoption of DEP regulations; 2) even if the EJ law did apply, the EJ law does not authorize DEP to deny renewal or modifications of permits for existing operating facilities; and 3) the EJ "Stressor Guidance" document is NOT enforceable. Guidance documents - like Administrative Orders - are not binding, only DEP regulations and Technical Manuals are enforceable; 4) Administrative Orders are not enforceable on the regulated community in terms of a basis for establishing binding permit conditions.]

DEP's implementation of AO 2021-24 imposed the PVSC permit's Special EJ conditions, which allegedly are designed to ameliorate the new plant's pollution and respond to community concerns.

The "special environmental justice conditions" of the draft permit merely limit the hours of operation of the facility to emergencies and mandate the installation of small solar panels (5 MW) and battery storage capacity (5 MW) (see page 19-23).

The Newark Community and EJ activists did not buy it and were not appeased. They turned out to oppose the DEP permit at a hearing on Wednesday (NJ Spotlight news):

Dozens of local residents and activists gathered at a community center in Newark’s Ironbound to urge state environmental officials to block controversial plans for a new natural gas power plant in the neighborhood. [...]

Many pointed what they said was the apparent hypocrisy of Gov. Phil Murphy’s administration allowing a new natural gas power plant to be built, despite the governor’s goal of transitioning New Jersey to 100% renewable energy. [...]

“Here we have one of the areas of the state with the highest percentage of people of color, one of the areas of the state with the highest percentage of low-income people, and one of the areas of the state that is already the most overburdened,” Smith said. “And this is exactly where PVSC proposes to build its new gas plant and its exactly where DEP proposes to permit that new gas plant.”

III)  Honesty Is The Best Policy: Kill The Permit And Work To Strengthen The Laws

Like I previously noted, in order to kill this permit, the opponents must admit that the EJ law and DEP Commissioner that they've been praising for years now is sham.

So here are my comments I just submitted, which provide an analysis that can kill the permit.

Maybe the lawyers at EarthJustice will read them and respond accordingly:

Dear Mr. Ratzman:

Please accept the following public comments on the subject draft air permit. I am responding to the question you posed as hearing officer, as quoted in today's NJ Spotlight:

“If anyone demonstrates to the department the facility would not comply with any of the applicable air pollution control laws and rules, the department’s proposed decision to approve this permit or the requirements imposed in the draft permit may be changed."

Based on that story, there appears to be a misunderstanding about the intent and effect of the EJ conditions. They were not designed to and can not mandate emissions reductions. Basically, all they did was limit total hours of operation and restrict when the new gas units can be operated. This could prevent and reduce potential future increases in emissions.

The legal issues raised by the EJ conditions are:

1) whether the federal Clean Air Act and the NJ State Air Pollution Control Act authorize the DEP to conduct an EJ review and impose enforceable EJ conditions. Those conditions were STATE-ONLY APPLICABLE REQUIREMENTS, thus the basis appears to be State law. However, the "State ONLY" conditions impact a federal permit subject to US EPA review and approval issues, thus it appears that there is joint federal and state law implicated; and

2) A related second issue is, if those laws do authorize DEP regulation of EJ issues, whether the DEP adopted air pollution control regulations to implement that authority. Any permit condition imposed by DEP must be authorized by a DEP regulation that's on the books BEFORE the permit application is submitted and deemed complete by DEP. DEP may not retroactively impose regulatory requirements.

3) for the sake of argument, even if the EJ conditions were legislatively authorized and adopted in DEP implementing regulations, did the DEP provide a scientific basis and data for and a causal nexus between the conditions and a cognizable adverse impact?

I argue that the answer to these questions clearly is NO.

I predict that if DEP issues a final permit with the proposed EJ conditions, that the PVSC, joined by Amicimajor regulated industries (NJBIA, Chamber of Commerce, Petroleum Council, Chemistry Council, et al), will all sue DEP. This is a HUGE issue that would set a precedent that would allow a huge expansion in the scope and regulatory power of the DEP. No way the regulated community will let that happen. In fact, this is why the EJ law is written the way it was, e.g. it did NOT amend applicable law to expand the technical basis for DEP establishing permit conditions. The enviro's and EJ activists got duped on this.

In terms of the Title VI Civil Rights claims raised by the EarthJustice lawyer, that too is a loser. In fact, federal courts recently struck down US EPA's authority to consider "disparate impacts" and cumulative impacts in EPA permits, finding that Congress did not provide that authority (see: U.S. District Court Judge Cain, Judgment pursuant to the ruling in State of Louisiana v. EPA, No. 2:23-cv-00692, W.D. La. Jan. 23, 2024, Aug. 22, 2024).

There are Title VI Civil rights cases out of NJ (i.e. Camden) that make it virtually impossible to litigate that issue (e.g. in addition to showing disproportionate or disparate impact based on race, litigants must prove actual INTENT to discriminate based on race. That is almost impossible. (see:  the Third Circuit Court’s holding, in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771 (3d Cir. 2001)

https://www.gibbonslaw.com/resources/publications/third-circuit-closes-second-door-on-plaintiffs-in-south-camden-environmental-justice-case-05-02-2002

Ironically, everyone seems to be missing a valid legal flaw in the DEP permit. Follow the logic:

1) CO2 (and other greenhouse gases) are "regulated pollutants" ("air contaminants") and have been since 2004 under DEP air pollution control regulations. The Department has a mandatory duty to regulate and control "regulated pollutants". In adopting those regulations, DEP has asserted joint legal authority to regulate under the NJ Air Pollution Control Act and the Global Warming Response Act.

2) In the draft permit, the DEP quantified CO2 equivalent emissions (310,000 tons), but failed to regulate them in any way (e.g. emission limits, pollution control technology, operating conditions, mitigation and offset, emissions fees, et al).

3) DEP's failure to regulate CO2/GHG emissions violates applicable law and makes the permit "arbitrary and capricious" and an "abuse of discretion" due to "omission" and  "clear error" (see: NJ Administrative Procedure Act and NJ Air Pollution Control Act).

Finally, why would DEP propose the draft permit BEFORE the PVSC agreed to comply with the EJ conditions?

The DEP imposed those EJ conditions based on an "EJ review" conducted allegedly pursuant to the NJ State EJ law and DEP implementing regulations. However, both the EJ law and DEP regulations do not apply to the subject PVSC facility and permit due to the timing of the permit application, the passage of law, and the adoption of DEP regulations. DEP may not retroactively impose regulatory requirements.

The DEP then applied the EJ conditions in the subject air permit, compounding and repeating the legal errors.

I urge DEP to withdraw the draft permit and reconsider a new permit application with EJ teeth and regulation of CO2 and greenhouse gas emissions.

It does not please me to make arguments and observations that essentially are adverse to environmental justice concerns. I was documenting and advocating EJ positions many years before EJ became a priority issue and NJ's EJ law was enacted. However, I am bound by reality, not by what I'd like reality to be.

Bill Wolfe