Documents Show That Consultant For LNG Export Project Actually Wrote Portions Of DEP Responses To Public Comments

DEP Provided Opportunity For LNG Consultants to Respond To Public Comments

DEP Verbatim Plagiarized Some LNG Consultant Responses, Without Attribution 

This is what “Agency Capture” looks like

DEP documents I obtained via OPRA show the following egregious abuses:

1) consultants for the “Fortress Energy” LNG project were provided public comments on draft permits and given the opportunity to respond to them, outside the normal public permit process (i.e. the public had no awareness of these industry reply documents or any opportunity to rebut them);

2) portions of the DEP’s response to public comments documents on permits for the proposed LNG export were written by the consultant for the LNG project and fobbed off as DEP’s own responses;

3) In some cases, DEP actually plagiarized – verbatim – replies submitted to DEP by the LNG consultants.

I have written many times about how virtually every aspect of the DEP permit process is rigged in favor of polluting industries and developers.

But I have not written about this egregiously abusive DEP practice that allows permit applicants to review public comments and submit responses to public comment to the DEP on their draft permits – after the public comment period is closed. DEP then uses the permit applicant’s replies in drafting their own response to public comments document.

This is an egregious example of “agency capture” – no wonder DEP is denying my OPRA requests. (This is the LNG project that current DEP Commissioner LaTourette was a lawyer for in securing DEP permits just weeks before he was installed as DEP Chief Legal Counsel).

I’ve often written about the systemic and pervasive structural flaws in environmental regulation and DEP practices that betray the public interest and put the polluters in charge of DEP permits. These include:

1) industry lobbyists and lawyers write provisions of environmental laws.

2) when DEP develops regulations to implement those laws, industry lobbyists, lawyers, and scientists are provided undue access and influence on DEP “Stakeholder” groups.

Industry representatives also are provided advance notice and drafts of DEP regulations before they are formally proposed in the NJ Register for public comment. This provides a “heads up” that enables them to gain information and access to the Governor’s Office and DEP Commissioner prior to DEP’s formal public comment process on proposed rules.

This access can either kill a rule outright before it is even proposed for public comment (thus the public is completely unaware), or delay proposal, or narrow the scope of the rule, or weaken its technical standards and provisions.

3) Polluters are even provided preferential access and influence on DEP’s development of “Technical Manuals” and “Best Management Practices” that provide the technical contents of and guide DEP’s reviews of permits. There is virtually no public awareness or participation in these obscure and murky processes. But industry sits at the DEP table, literally writing their own ticket.

4) industry also has undue access and influence on the science and technical aspects or regulations via participation on advisory bodies, including DEP’s Science Advisory Board, Air Pollution Industrial Stakeholders, Clean Air Council, Clean Water Council, and Site Remediation Board.

5) during theDEP review of individual permits, permit applicants (polluters and developers) are provided an opportunity to have a private off the record “Pre-Application meeting” with DEP permit review staff and upper managers who make permit policy and decisions. The existence of these meetings is not disclosed to the public and records of these meetings are not discoverable under OPRA.

These meetings provide DEP’s guidance to regulated industry on how to secure permit approval – they also create personal and professional relationships between DEP staffers and permit applicants. This leads to what is called ‘agency capture”.

The public is not made aware of these meetings, which typically occur months ore even years before permit application are submitted for public review.

6) Virtually all data that is reviewed by DEP is collected by industry consultants.

7) On major environmental permits, there are many opportunities for “ex parte” communications and lobbying by permit applicants, including meetings with legislators, the Governor’s Office and DEP Commissioner’s Office.

8) DEP has expanded abuses of NJ Open Public Records Act (OPRA) to frustrate public access to and discovery of these various regulatory and permit review practices. DEP began using the pretext of “deliberative privilege” exemption in the OPRA law. DEP now have blocked access to virtually all DEP staff correspondence and emails via “overly vague” OPRA denials that require the public to know the exact name, subject matter, and dates of any correspondence or emails requested under OPRA. Of course, it is impossible for the public to know this information.

The system is rigged. Badly rigged. So rigged that it is corrupt.

But, allowing permit applicants an opportunity to actually draft the text of DEP’s responses to public comments takes things to a whole new level of “agency capture” and corruption.

There is literally no line between DEP and a permit applicant when this is allowed to occur.

(In our next post, we provide specific examples of text from the LNG permit applicant’s consultant and the verbatim text of DEP’s response to comments document on the LNG permits. We also provide examples of how DEP used permit applicant responses to shape their own responses, but without outright plagiarism.)

I will provide these documents upon request to any media, activist, or environmental group that requests them.