The DEP Has No Authority To Mandate That Polluters Install Solar In Order to Receive Permits
DEP’s “Special Environmental Justice Conditions” For PVSC Newark Gas Plant Are Illegal
The Murphy DEP recently proposed a draft permit to approve the Passaic Valley Sewerage Commission’s (PVSC) proposed new natural gas power plant at their Newark regional wastewater treatment facility.
The draft air pollution control permit includes “special environmental justice conditions”, including conditions that would require the PVSC to install 5 MW of solar panels and 5MW of battery storage capacity.
While DEP mandated that minuscule solar capacity relying on dubious legal authority, they completely ignored regulation of emissions of 310,000 tons per year of greenhouse gas emissions!
Yesterday, I posted a rambling analysis and lengthy post about all that was wrong with that draft permit.
Today, I just want to make one point absolutely clear.
The DEP has no authority to mandate that in order to obtain an air permit (or any other DEP permit) that the permit applicant install solar panels and battery storage.
There is no law passed by the Legislature that authorizes DEP to do this (of course there never will be such a law until DEP and climate activists admit the truth, instead of defending toothless laws like the Global Warming Response Act).
There is no DEP regulation that authorizes DEP to do this and provides the technical rationale and scientific basis to justify it.
As I wrote in comments to DEP, the DEP can’t just pull requirements out of their hat.
[And the DEP “EJ Stressor Guidance” Document is not enforceable, see:
Although I strongly support solar – and for 40 years have advocated expansive interpretations of DEP’s regulatory authority – this is an outrageously lawless overreach by DEP.
It will harm and discredit DEP and climate efforts worse than DEP’s similar over-reach in proposing The BIG MAP during the McGreevey administration.
Similarly, the DEP Commissioner can not unilaterally issue an “Administrative Order” to mandate regulatory “environmental justice reviews” by DEP that generate the so called technical basis for imposing these illegal “special environmental justice conditions” in permits.
If this wasn’t so serious and harmful to issues I care so deeply about, it would be funny.
A first year law student could tell you that this is blatantly illegal.
I really find it difficult to believe that DEP would be allowed to act so lawlessly and outrageously, particularly given the fact that DEP Commissioner LaTourette is a former corporate lawyer who clearly knows better.
This only empowers the climate deniers and right wing Federalist Society ideologues who seek to “dismantle the administrative state”.
What the hell were Governor Murphy and Attorney General Platkin thinking? Did they think that 5MW of solar and battery storage would mitigate the harms and provide political cover?
It really shows how political DEP has become under the Murphy administration and how far they have strayed from science and law, in favor of “the narrative”.
This DEP political stunt will fail and go down in flames, while much needed real substantive reforms to current laws and DEP regulations will be ignored and undermined by the debacle now underway.
Shame on LaTourette and Co. for this unforced and cynical error.
This is a huge setback for environmental justice and climate programs.
[End Note: I friendly reader sent me an email saying the only thing that counts is what Commissioner LaTourette can get away with. I sent this reply:
He won’t get away with this one.
If that permit were allowed to stand, that would mean that DEP could mandate solar installations at thousands of facilities with air permits.
NO WAY the business community will let that happen.