DEP Claims Technical State Permit Requirement Can Over-Ride a Presidential Exemption
The Murphy DEP just denied a petition for rulemaking that was designed to block Trump EPA clean air rollbacks for industrial polluters that emit “hazardous air pollutants” (HAPs).
This is a complex wonky issue, so if you don’t care to drill down into the regulatory weeds, just hit delete now.
The Murphy DEP once again failed to act to prevent Trump environmental regulatory rollbacks.
DEP is risking litigation they are likely to lose, instead of simply adopting explicit enforceable regulations to anticipate and block likely Trump EPA clean air rollbacks.
The regulatory issues at play are complex and novel, an uncertain reality that suggests that the best approach is for DEP to act aggressively and with precision by openly adopting a regulatory strategy that is explicitly designed to prevent Trump EPA rollbacks and protect NJ’s environment and public health.
But instead of simply doing that, the DEP is laying low and relying on vague and esoteric DEP technical air pollution permit requirements.
These narrow DEP requirements conflict with Trump Executive Orders, Trump’s broad Presidential “national security” powers, the federal Clean Air Act, and EPA federal regulations (see: “Clean Air Act Section 112 Presidential Exemptions”)
If Trump’s EPA were to issue an exemption to a big lawyered up corporate polluter and DEP sought to enforce the DEP’s narrow technical permit requirements, who do you think would prevail if those conflicts were litigated?
The federal Clean Air Act grants the President power to unilaterally issue certain exemptions from clean air requirements. Trump is the first President to use those powers. There is no precedent to rely on. We are in unchartered territory.
Setting up a conflict between federal and State power, the federal Clean Air Act also authorizes States to adopt stricter State standards. NJ has adopted some stricter State standards under both the federal Clean Air Act and the State NJ Air Pollution Control Act.
We’ve already seen how the federal Courts have largely deferred to Trump’s Executive Orders that involve his powers over the federal government, under the so called “Unitary Executive” theory.
We’ve already seen one example of Clean Air Act federal versus state conflict in the recent California EV car EPA waiver, where Trump Executive Order and later Congress stripped more stringent California electric vehicle requirements.
We’ve also seen how Trump can abuse his emergency powers in declaring an emergency on the PJM grid that allowed a dirty fossil polluter on the NJ border to continue to operate.
So, the writing is on the wall and it is likely that in a case of conflict between a Trump exercise of federal Clean Air Act Presidential Executive exemption power and a technical State regulation, that Trump and EPA will prevail.
One way to block Trump EPA rollbacks is not to rely on reactions to EPA rollbacks and individual case specific lawsuits, but instead to get out front and adopt clear State laws and regulations explicitly designed to prevent Trump EPA rollbacks.
That’s why on March 28, 2025 I filed a formal petition for rulemaking which was published in the NJ Register on May 5, 2025, see: 57 N.J.R. 951(a) (for some strange reason that Public Notice of the petition has been taken down!)
At the time, I wrote to explain why I filed the petition: (read the complete post, which includes the petition text)
I filed a petition for rulemaking to force DEP to respond (provided below). The petition seeks to have DEP and/or the Attorney General (or even Governor) take regulatory action to block the Trump EPA from rolling back critical Clean Air Act protections in New Jersey, including industrial emissions of toxic hazardous air pollutants linked to cancer and other illness.
The Murphy DEP will now have to respond officially, in writing, published in the NJ Register, on their detailed legal, scientific, and regulatory policy positions on Trump Clean Air rollbacks.
To date, the Murphy Administration has completely ignored Project 2025and relied on after the fact individual lawsuits filed by the Attorney General to respond to Trump’s numerous Executive Orders and EPA regulatory moves that openly attack critical environmental and public health protections.
As I wrote on March 18 (see: A Handful Of Lawsuits Will Not Protect NJ’s Environment And Public Health), individual case by case lawsuits will not stop Trump’s attack on environmental protections. Lawsuits are reactive, slow, and even if successful provide very narrow victories. They also fail to involve the public. No need to take my word for all that, read this excellent Washington Post Op-Ed by law professors from Harvard and Yale (published on March 20) who agree with me:
The DEP denied this petition. The DEP denial will be published in the upcoming July 7, 2025 NJ Register.
The DEP completely missed the point of the petition.
The whole point was to PREVENT EPA rollbacks by getting out front of them, not by waiting to react to them and relying on individual risky lawsuits that lack any public involvement.
Furthermore, DEP claimed that no exemptions had yet been issued in NJ and that I had failed to identify specific facilities, which again missed the whole point.
First, because there are major HAP industrial emission sources in NJ that could be issued exemptions. NJ Spotlight recently reported that there were over 1,800 industrial HAP polluters nationally, and approximately 39 in NJ:
The bill on Trump’s desk would allow an estimated 39 facilities in New Jersey to increase pollution, said Walke, who worked as an attorney in EPA’s general counsel office.
Second, because DEP knows exactly what NJ industrial facilities emit HAP’s and are eligible for Trump exemptions, and it is not my burden to list individual 39 HAP emission sources in NJ.
Third, because NJ’s air quality and public health are impacted by some of those 1,800 upwind out of state industrial HAP polluters. Historically, DEP has sued those pollution sources to protect NJ’s air quality.
The head in the sand approach that DEP took in denying the petition betrays that clean air history and misses an opportunity to take leadership to encourage other States to fight back and educate the public about what Trump and his EPA are doing.
The DEP denied the petition on the following basis:
Response to Petition
The petitioner requests that the Department promulgate rules to incorporate by reference the EPA Rules and rules to disregard any permit or related exemptions issued by the EPA pursuant to section 112(i)(4) of the Clean Air Act. The petitioner claims that the Federal exemption program would exempt many air pollution sources in the State from the EPA Rules, which would threaten public health in the State. However, the petitioner failed to identify any stationary sources in the State that were purportedly granted a Federal exemption and the petitioner provides no other specific support for this claim.
The Department is aware of no purported Federal exemption affecting stationary sources in the State. However, even assuming that a Federal exemption had been granted, the Department’s State rules independently require major sources of air pollution to evaluate facility-wide risk. As explained below, even if a Federal exemption were at issue, public and environmental health would be protected by application of the Department’s existing rules. The requested rulemaking is not necessary to achieve these protective ends.
The DEP’s assertion of so called NJ State “facility-wide risk assessment” permit requirements is a very thin reed to rely on to respond to the massive Trump assault.
In fact, the so called “requirements” DEP relies on are actually not even in regulation, they are in Guidance, as DEP admits in the denial document:
If an application includes HAP emissions above the applicable reporting threshold, the facility must demonstrate negligible risk, using the Department’s risk screening worksheet or by conducting air dispersion modeling in accordance with the Department’s technical guidance. See N.J.A.C. 7:27-8.5 and 22.8.
And it will no doubt fail.
The Murphy DEP’s weak knee’d failure to respond to Trump Executive Orders and Trump EPA publicly announced upcoming regulatory rollbacks is highly irresponsible.
The DEP has failed to adopt any strategy other than to sit back and enjoy getting screwed by Trump. And that is just what the polluters want.
In case you somehow missed all that, see:
Everything that I look at in the US from here in Australia - is negativity upon illegality upon nastiness. Have you investigated Canada further? Jim
I am with you, Bill - it was just that in some earlier post you had - half-jokingly/half-seriously mentioned it as a perhaps/may be possibility... But real life exigencies always bind us - reliant on social security or unable to fulfil other criteria... Best wishes always to you.
Jim