Ethics Violation Involves Repeated False and Misleading Public Statements On The Effect Of NJ Environmental Justice Law On Pending PVSC Power Plant Air Pollution Permit
Shawn LaTourette, NJ DEP Commissioner
On July 19, 2024, NJ Spotlight reported on the Murphy DEP’s approval of an “environmental justice” review and approval of the pending Title V Operating air pollution control permit for the Passaic Valley Sewerage Commission’s proposed new fossil power plant in Newark.
That story made significant errors regarding the applicability of NJ’s environmental justice law on the pending PVSC air permit and included false and misleading statements – upon which the highly misleading story was based – by DEP Commissioner LaTourette.
Specifically, LaTourette created the false impressions that the EJ law applied to the pending air permit application and that his toothless Administrative Order on EJ could establish binding regulatory requirements as conditions in the final DEP issued air permit.
This was not the first time that LaTourette had made false and misleading statements in this matter.
I am so sick of the lies. If LaTourette said that in a Court, he would be disciplined for it. The same standard should apply in the “court of public opinion”. And the same standard should apply in a regulatory proceeding (i.e. the DEP permit process).
I immediately emailed Commissioner LaTourette and requested, if he was quoted accurately, that he publicly correct the record by issuing a public statement. I gave him a week to respond. He has not done so. I warned that if he failed to do so, that I was prepared to file ethics complaints, including to the NJ Courts who supervise NJ’s ethics code for lawyers.
Today, I filed the following “ethics grievance” to the NJ Supreme Court’s Office Of Attorney Ethics:
Dear Office Of Attorney Ethics – see attached form as a PDF.
The text of the complaint follows. Please be advised that this is purely a matter of law and ethics, not merely a policy dispute:
“Shawn LaTourette, Esq. currently serves as the Commissioner of the NJ Department of Environmental Protection (DEP). In that capacity, he has made knowingly false and misleading public statements regarding the applicability, binding regulatory effect, and DEP enforcement powers of the NJ Environmental Justice Law (P.L. 2020, C.92), DEP’s implementing regulations (NJAC 7:1C), the DEP “Technical Guidance” (‘”EJ map”), and the DEP ADMINISTRATIVE ORDER NO. 2021-25 with respect to a pending “Clean Air Act Title V Operating Permit Modification” sought by permit applicant Passaic Valley Sewerage Commissions (PVSC), Project ID # 07329, BOP 190004.
The DEP’s permit review process constitutes an “adjudicative proceeding” and “tribunal” pursuant to RPC 3.6(a) (“Trial Publicity”) and RPC 3.3(a)(1) (“Candor towards the Tribunal”), respectfully. This complaint alleges violation of these provisions of the RPC.
Specifically: 1) the EJ Law and DEP implementing regulations do not apply to the subject PVSC permit application; 2) The DEP’s Technical Guidance does not apply to the subject PVSC permit application and furthermore is guidance and therefore not enforceable even if it did; and 3) the subject DEP Administrative Order, issued by LaTourette, is not binding and enforceable as a matter of law and regulation, in terms of mandating technical permit requirements with respect to the subject PVSC permit application.
Yet despite these legal facts, DEP Commissioner LaTourette has repeatedly made false and misleading public statements that: 1) the EJ law and DEP regulations apply to the subject permit application; 2) the technical Guidance provides the substantive basis for DEP regulatory review and approval of the subject permit application; and 3) the DEP Administrative Order applies and provides the regulatory basis for DEP to issue mandatory and enforceable technical conditions in the final permit for the subject permit application.
Among the many examples of these false and misleading statements is provided in a NJ Spotlight news story on 7/19/24. That story stated, in pertinent part (emphases mine):
“DEP’s approval was made with conditions that significantly restrict how the sewerage commission would be able to use its proposed power plant. … “This is a precedent-setting action,” LaTourette said. “There are always opportunities to reduce a facilities (sic) overall pollution, and the environmental justice law requires this analysis and that that effort be made.” The newly released environmental justice approval is a key part of the DEP’s consideration of an air pollution permit application the sewerage commission first submitted for the project in 2020. That permit is required for PVSC to operate the power plant. This sort of environmental justice review, which examines how proposals for pollution impact communities and considers the cumulative impact of that proposed pollution when combined with existing pollution sources, is required under New Jersey’s landmark environmental justice law.”
There have been many other examples I could cite and reserve my right to do so.
Commissioner LaTourette is the final decision-maker in issuing final agency action with respect to the subject pending permit application.
As a lawyer and DEP Commissioner, LaTourette is fully aware of the legal and regulatory applicability of EJ law, regulation, Guidance, and Administrative Orders regarding the subject pending permit application.
In conclusion, it is unethical behavior for an attorney to knowingly mislead the public regarding the regulatory applicability and binding legal effect of NJ laws, DEP regulations, DEP Guidance documents, and DEP Administrative Orders with respect to a pending permit application that has enormous potential impacts on public health and the environment.
I am available to provide clarification or additional documentation.
Respectfully submitted,
Bill Wolfe