Precedent Led to Huge $8.9 Billion Exxon Sellout By Christie Administration
LaTourette’s Victory For Chemical Corporations Shifted Costs Of Cleanup To The Public
Despite Legal Losses, DEP Still has Not Adopted NRD Regulations To Repair Legal Flaws
Gov. Murphy’s Portrait Of LaTourette As Public Interest Lawyer Is A Lie
Despite this troubling history of DEP failure that relieves corporations of billions of dollars of liability for their pollution and shifts the cleanup cost burden to the public, DEP still has not adopted NRD regulations and still is forced to settle NRD claims – including those involving the NRD damage of lost use of NJ drinking water – for just pennies on the dollar.
As the legal history shows, current Murphy DEP Commissioner LaTourette was deeply involved in the legal vulnerabilities that caused this debacle and he refuses to correct the problem by adopting NRD regulations.
So, for him now to spew righteous drivel about holding polluters accountable and making them pay is beyond Orwell – and it absolutely sickens me.
Since last November, I have been criticizing NJ Spotlight’s narrow coverage of violations of drinking water standards in just a single drinking water system in Middlesex County. I obtained DEP enforcement documents and exposed the fact that the problem is statewide. I even listed the specific systems, based on DEP enforcement documents, see:
Ironically, in a December 22, 2021 story on federal funding for NJ infrastructure, NJ Spotlight TeeVee unknowingly finally exposed this statewide problem. After talking for 2 minutes like a Wall Street finance guy, DEP Commissioner LaTourette casually noted that “over 10% of drinking water systems in NJ violate DEP’s PFAS MCL (@time 3:00).
Up until that point, DEP had not publicly revealed such statewide data and NJ Spotlight had been reporting on just one system in Middlesex County. So this was news.
I Tweeted at NJ Spotlight reporter Joanna Gagis to alert her to the fact that LaTourette just made big news during her interview with his casual “10%” remark. I tweeted twice, on December 24, and again on December 27, see:
She replied on December 29, advising me that they were working on the Statewide story:
Last night, NJ Spotlight finally reported some of that Statewide story.
They interviewed Murphy DEP Commissioner LaTourette in a NJ Spotlight TeeVee piece. LaTourette claimed that drinking water systems must “institute technology” (@time: 2:24), be held accountable, and pay for the pollution they caused in NJ drinking water (@ 2:35 – 2:50) (“cost should be borne by those who caused it”).
I almost puked – (no wonder NJ Spotlight reporter Melissa R. Cooper has blocked my Tweets!)
Notice that LaTourette did NOT us the word “treatment”, because DEP regulations do not mandate treatment to remove chemicals that exceed DEP’s drinking water standards, known as “MCLs”.
The DEP PFAS enforcement documents do not mandate treatment to remove chemicals.
DEP merely provides that the drinking water system “take any action” to comply with the MCL, and the DEP gives the drinking water system many alternatives to treatment and a year to submit that plan.
Here’s the boilerplate applicable language from the DEP PFAS enforcement documents: (emphases mine)
In response to this Notice of Non-Compliance, the following corrective actions must be undertaken to achieve compliance: […]
5. Pursuant to the State Primary Drinking Water Regulations at NJAC 7:10-5.7(a), you are required to take any action necessary to bring the water into compliance with the MCL within one year after receipt of the results that demonstrate an exceedance that constitutes a violation (due July 29, 2022). Remedial actions may include, but are not limited to, providing treatment to remove the levels detected, removing the contaminated source from service, demonstrating with analytical results that the current source of water no longer exceeds the MCL, and/or using an alternate source(s) of water supply, such as connecting to another public water system or replacing the existing well with a new well which meets all drinking water standards.
Worse, had LaTourette used the work “treatment”, he also would have opened up Pandora’s box: DEP knows that there are over 500 unregulated toxic chemicals that pollute NJ drinking water across the entire state, including pharmaceuticals and endocrine disruptors.
DEP does not have adequate data or science to assess the risks and harms to human health caused by these chemicals or the ability to set individual drinking water standards for each chemical, as is done under current DEP regulations.
In response to that set of serious problems, over 15 years ago. DEP recommended what was called a “Treatment Based Approach”, whereby DEP would require drinking water systems to install available “treatment”, activated carbon, to remove all these chemicals, instead of continuing with the complex, slow, ineffective and costly single chemical by chemical MCL approach. Here is DEP’s 2010 policy paper:
The DEP initially solicited formal public comments on this new regulatory strategy and “treatment based approach” way back in 2004 (see NJ Register Public Notice), but never followed through on it. DEP wrote:
Human health information is lacking for many of the contaminants, so it is difficult to assess whether they pose a threat to human health either on an individual basis or as contaminant mixtures. Given the uncertainty, the Department is considering several options to address the occurrence of these contaminants in the State’s drinking water. (My note: see option #5)
That DEP 2010 “treatment based approach” policy paper is based on several prior and ongoing DEP research projects, most of which focused on important questions, including:
The overall objective of this project is to investigate the effectiveness of conventional and advanced water treatment processes for the removal of unregulated organic chemicals (UOCs) such as pharmaceuticals and personal care products and industrial and household use organic chemicals from surface water systems. Specifically, this research is designed to answer several questions including: 1) What UOCs are removed by conventional water treatment processes? 2) What additional UOCs are removed with advanced processes such as GAC and ozone? 3) What per cent removal can be achieved with conventional and conventional plus advanced processes? 4) What process design parameters and operating conditions are associated with these removals? 5) How effective are current analytical methods in quantifying low levels of UOCs? 6) Is it plausible for NJ to consider a “treatment-based” regulatory approach for managing UOCs in drinking water in the state?
DEP found that there are over 500 unregulated toxic chemicals in NJ drinking water and “little if any toxicity information is available for most of them.”
I’ve released the DEP’s document and written about this many times for over a decade.
As Director of NJ PEER, in 2010 I filed a petition for rulemaking, urging DEP to implement the “treatment based approach”. The Christie DEP denied the petition, see:
- Jersey Nixes Filtration Plan for Drinking Water (red full release and links)
Trenton — The State of New Jersey has rejected a rulemaking petition to require systematic monitoring and filtering of drinking water. As a result, state residents will continue to ingest hundreds of unregulated chemicals daily as New Jersey steps back from its leadership role on the issue.
The petition filed in early September by Public Employees for Environmental Responsibility (PEER) was based upon a plan developed by the state Department of Environmental Protection (DEP) back in 2004 that was never implemented. That plan and the PEER petition called for monitoring water supplies for the growing presence of unregulated chemicals from pharmaceuticals, consumer products and industry and using treatment systems, such as granular activated carbon filtration, to remove most chemicals.
Here are a few more recent posts from Wolfenotes:
NJ Spotlight reporters KNOW this but they refuse to report the story, and instead are stenographers for LaTourette’s gaslighting.
Which forces me to expose the total fraud being perpetrated on the people of NJ. It’s complicated, but yet very simple. Here it is.
When NJ Gov. Murphy nominated Shawn LaTourette as DEP Commissioner, he issued a press release that portrayed LaTourette as a public interest lawyer, who fought corporate polluters on behalf of the communities they polluted:
With twenty years of environmental experience, LaTourette began his career partnering with the Erin Brockovich law firm to organize and defend New Jersey communities whose drinking water was contaminated by petrochemicals. Born and raised in New Jersey, LaTourette graduated magna cum laude from Rutgers University and earned his law degree summa cum laude from Rutgers Law School, where he was the class salutatorian and the recipient of multiple environmental and governance awards, and published scholarship on environmental law, natural resource damage, and climate issues. Before entering public service, LaTourette specialized in protecting the rights of victims of toxic injuries while also advising infrastructure, transportation, energy, and other industries on compliance with state and federal environmental laws and policies. Prior to joining the Murphy Administration, he was most recently a Director of the Environmental Law Department at Gibbons PC, where he focused on brownfields redevelopment projects and litigated environmental cases in state and federal court.
That portrait was false and misleading.
In fact, as I’ve written, at the time, LaTourette had recently served as lead lawyer for securing DEP permits for the Fortress Energy LNG export project.
But his corporate polluter lawyer record is far more extensive than that, as I revealed by releasing LaTourette’s ethics disclosures which showed that he had represented numerous corporate polluters and developers for many years.
One case LaTourette litigated, however, stands out for its harm to the environment, DEP, and the public interest. And that case is:
Alan E. Kraus argued the cause for respondent (Latham & Watkins, L.L.P., attorneys; Mr. Kraus, Kira S. Dabby, Kegan A. Brown, and Shawn M. LaTourette, on the brief).
LaTourette Essex Chemical victory case was one of three major inter-related court cases involving DEP’s attempts to collect what are known as natural resource damages (NRD). See:
Corporations won all three DEP NRD cases, victories, which led directly to the HUGE loss of the DEP’s $8.9 billion NRD damage claim against Exxon in the Christie DEP’s dirty settlement deal.
The Christie Exxon was exposed as a corrupt sellout, by none other than former DEP Commissioner Bradley Campbell in a NY Times Op-Ed:
THE decision by the administration of Gov. Chris Christie to settle an environmental lawsuit against Exxon Mobil Corporation for roughly three cents on the dollar after more than a decade of litigation is an embarrassment to law enforcement and good government.
Ironically, Campbell’s failure to adopt DEP NRD regulations – which enabled LaTourette’s legal victory – was what caused. Christie DEP’s corrupt settlement.
[Full disclosure: I worked for Campbell at DEP from 2002 -2005, but never on NRD issues.]
This all came out later, in a forensic analysis of the huge $8.9 billion Exxon NRD sellout by the Christie administration. In that story, we were cited as an expert source:
“There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said.
It’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar”, Wolfe said. ~~~ NJ Law Journal (4/3/15)
As the NJLJ story documented, exactly as we’ve written, DEP lost 3 NRD cases it litigated, going back over a decade to 2004.
- New Jersey Society of Environmental & Economic Development (SEED) v. Campbell (N.J. Super. Law Div., Mercer County, 2004)
- N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007
- New Jersey Department of Environmental Protection, et al. v. Essex Chemical Corporation (Appellate Division, 2012)
As the NJLJ documented, the underlying legal reason DEP lost all 3 NRD cases it litigated was due to a lack of enforceable NRD regulations to define and quantify natural resource injuries and compensation/restoration requirements.
As the NJLJ story exposed, the DEP entered into a legal settlement agreement in the 2004 SEED case that obligated DEP to adopt NRD regulations, a commitment backed up by a letter from the Attorney General’s Office.
Here is the legal community’s contemporaneous September 2007 celebration of that August 2007 decision, a huge win for corporate polluters:
On August 24, 2007, the Superior Court of New Jersey issued an important bench ruling regarding the New Jersey Department of Environmental Protection’s (“NJDEP” or “Department”) natural resource damage (“NRD”) claim calculation. N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007). …
… the Court awarded partial summary judgment to Exxon Mobil, dismissing the NJDEP’s claim with prejudice, because the Department had not provided sufficient expert support to uphold the assumptions utilized in the natural resource damages formula.
The Court noted that, in the context of litigation, NJDEP could have relied upon the formula to meet its burden or proof in either of two ways, by promulgating the formula as a rule, or by presenting expert proof supporting each of the elements of the formula, but NJDEP did neither.
In fact, the Court further stressed the appropriateness of rule making by alluding to the New Jersey Society of Environmental & Economic Development v. Campbell (“NJSEED”) case (Docket No. MER-L-343-04 (N.J. Super. Law Div., Mercer County) (Sabatino, J.)), reminding the NJDEP that it settled that particular case by agreeing to subject the ground water formula utilized in natural resource damages to administrative rule making. Although no such proposed rule has been published, there seem to be clear indications that rule making is appropriate and should be forthcoming. In the interim, companies involved in cases or settlement discussions wherein the NJDEP has calculated natural resource damages using this formula may have the benefit, even if temporary, of relying upon the Exxon Mobil decision to improve their bargaining positions since the NJDEP clearly cannot rely upon the formula in future litigation proceedings, without first developing further scientific justification in each case’s record for the assumptions used in the formula.
We, while at NJ PEER, explained the implications back in October 1, 2007 as well, see:
Trenton — In a stunning legal setback, the State of New Jersey cannot recover damages from polluters in what may be thousands of contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER). The problem stems from the state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water. As a result, polluters can avoid compensating the public for treatment of tainted groundwater, replacement water supply lines, drilling new wells and associated damages — leaving taxpayers with uncalculated costs.
Here’s a more recent 2018 law firms retrospective analysis:
The last major attempt by NJDEP to litigate certain NRD claims occurred back in 2007 but resulted in a major loss when a Mercer County Court rejected NJDEP’s settlement formula, finding that its use was too speculative to support NJDEP’s calculations of NRD. NJDEP v. Exxon Mobil Corp. et al, Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007).
Here is another 2018 legal analysis that confirms PEER’s assessment and highlights the damaging precedent that case set:
Although NJDEP has not adopted regulations to calculate NRD, with respect to its earlier NRD claims, NJDEP did develop a formula to calculate damages for injury to groundwater. The formula was used primarily as a basis for settlement discussions with potentially responsible parties. In NJDEP v. Exxon, Mer-L-2933-02 (Law Div. Aug. 24, 2007), when NJDEP attempted to use the formula in litigation, the court rejected it. The court held that because NJDEP did not adopt rules setting forth how to calculate NRD, it was required to prove each element of any calculation used to determine its damages. After reviewing NJDEP’s groundwater formula, the court found that the formula did not support NJDEP’s claimed damages. This case, however, did not prompt NJDEP to promulgate NRD rules and, as such, NJDEP will continue to face challenges on each aspect of its NRD calculation.
Despite this deeply troubling history of DEP failure that relieves corporations of billions of dollars of liability for their pollution and shifts the cleanup cost burden to the public, DEP still has not adopted NRD regulations and still is forced to settle NRD claims – including those involving the NRD damage of lost use of NJ drinking water – for just pennies on the dollar.
As the legal history shows, current Murphy DEP Commissioner LaTourette was involved in the legal vulnerabilities they caused this debacle and he refuses to correct the problem by adopting NRD regulations.
So, for him now to spew righteous drivel on NJ Spotlight TeeVee about holding polluters accountable and making them pay is beyond Orwell – and sickens me.