WolfeNotes.com

DEP’s Failure To Adopt Natural Resource Damage Regulations Means NJ Loses Billions Of Dollars

LaTourette Gaslights The Public About Holding Corporate Polluters Accountable

Creepiest Zoom background, ever (Source: NJ Spotlight TV)

On Tuesday night (Jan. 25), NJ Spotlight news provided a platform for Murphy DEP Commissioner LaTourette – without qualification or challenge by facts or expert sources – to gaslight the people of NJ.

In this Spotlight interview, former corporate lawyer LaTourette emphasized the need to hold corporate polluters accountable and make them pay to cleanup NJ’s drinking water (starting at time 2:33 – emphasis mine):

[treatment technology] has a cost, a cost that the water systems and the residents of NJ should not pay. Because the cost of curing what has befallen our water in NJ should be borne by those who caused it. The companies that put this material into the stream of commerce in the first place.

LaTourette is a lawyer, so he uses words carefully. So keep in mind his “material into the stream of commerce” theory as we expose this fraud.

The LaTourette gaslighting forces me to expose the total fraud being perpetrated on the people of NJ.

It’s complicated, but yet very simple. Here it is.

Basically, a “material into the stream of commerce” legal theory is at best a novel approach. DEP’s attempts to make corporations pay under that theory is highly uncertain – even unlikely – to prevail. Here it is (joint AG & DEP press release): (my emphasis)

TRENTON – Attorney General Gurbir S. Grewal, Department of Environmental Protection Commissioner (DEP) Catherine R. McCabe, and Acting Division of Consumer Affairs Director Paul Rodríguez announced today that the State has filed a lawsuit against companies for manufacturing and selling firefighting foam products in New Jersey for decades despite knowing those products released toxic and harmful chemicals into the environment.

The lawsuit, which includes both environmental and consumer fraud claims, seeks natural resource damages (NRD) along with other damages and penalties. It represents the tenth NRD lawsuit brought by the State since the beginning of the Murphy Administration in January 2018.

In contrast to a consumer fraud theory that is based on putting “materials” “into the stream of commerce“, DEP has clear regulatory authority and a strong legal tradition and court precedents to force corporate polluters to pay for the “release or discharge of hazardous substances” or “pollutants“ or “wastes“ into NJ’s land and water, including drinking water.

Polluters are not only required to cleanup their pollution, but must also compensate the public for “natural resource damages” when those pollution releases or discharges cause “injuries” or damages which include, among other things, the “lost use” of drinking water (DEP ONRR):

The Office of Natural Resource Restoration has the primary responsibility within the New Jersey Department of Environmental Protection for responding to discharges and other sources of pollution that trigger the DEP’s obligations as the trustee for all of New Jersey’s natural resources for the benefit of all of its citizens, now and in the future.  This effort includes working with the persons responsible for conducting the remediation to return such natural resources to their pre-discharge quality, quantity, function, and value, and to implement restoration projects to compensate New Jersey citizens for the lost interim value or for the permanent loss of their natural resources.

To force corporate polluters to compensate the public for pollution and “lost use” of drinking water, the DEP used to rely primarily on a “formula” for estimating the value of polluted groundwater.

NJ Courts have ruled that in order to force corporate polluters to pay for NRD – including drinking water – the DEP must adopt that groundwater formula as a regulation, in accordance with rulemaking requirements.

But DEP has abandoned the groundwater formula that they know is not enforceable unless it is adopted as a regulation.

I previously wrote about and linked to the DEP NRD groundwater formula, but DEP has not only abandoned it, but taken down any trace that it even existed – the link below to it is dead:

The DEP’s Office of Natural Resource Restoration  even has their own natural resource injury methods documents – one for calculating groundwater injury and one for identifying ecological injury, which defaults to the site remediation program’s “Baseline Ecological Assessment” conducted as part of the cleanup process at contaminated sites.

(we even petitioned the NJ Comptroller to intervene due to the huge fiscal impacts of DEP’s NRD failures).

DEP has failed to adopt Court directed NRD regulations and therefore is letting corporate polluters off the hook for billions of dollars of damages – a policy and practice that directly contradicts LaTourette’s TV claims. See:

• Bombshell: Bungling By DEP Led To Exxon Deal

This is why, among many others, the DEP will very likely settle the NRD aspects in the recent PFAS lawsuit against Solvay  – and the consumer fraud and NRD aspects of the Dupont, Chemours, Exxon-Mobil, and 3M lawsuit – for pennies on the dollar.

[Note: The State of Delaware recently settled a statewide PFAS NRD lawsuit with Dupont et al for a paltry $50 million – pennies on the dollar.]

I) The Gaslighting Begins With The Governor

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. (hit this link, scroll down to read list of corporate clients in LaTourette’s recusal disclosure)

II)  LaTourette’s DEP Failure To Adopt NRD Regulations To Force Corporate Compensation Is No Accident

LaTourette Litigated A Leading NRD Court Decision That Struck Down DEP’s NRD Claims

One case LaTourette litigated, however, stands out for its harm to the environment, DEP, and the public interest. And that case is:

• NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. ESSEX CHEMICAL CORPORATION

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:

• NJ Gov. Murphy’s DEP Commissioner Was A Corporate Hired Gun Who Crippled DEP’s Natural Resource Damage Program

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:

• Shortchanging New Jersey by Billions

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 contributed to the Christie DEP’s corrupt Exxon 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 by NJ Law Journal (NJLJ).

In that NJLJ 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:

• New Jersey Court Dismisses NJDEP Natural Resource Damages Claim

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:

• NEW JERSEY FORFEITS HUNDREDS OF MILLIONS IN POLLUTION DAMAGES

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 2007but 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:

• Past NRD Cases Highlight Vulnerability of Future Claims

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 creating the legal vulnerabilities they caused this debacle and now he knowingly 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 – it is a scandal and sickens me.

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:

• At Least 50 NJ Schools, Public Water Supply Systems, Healthcare Facilities, Developments, And Daycare Centers Violate Drinking Water Standards For “Forever Chemicals”

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:

• Investigations Related to a “Treatment-Based” Regulatory Approach to Address Unregulated Contaminants in Drinking Water

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:

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:

• New DEP Report Shows Advanced Treatment Removes Toxic Chemicals from Drinking Water

• NJ Senate Urged To Conduct Legislative Oversight Of Major Shift In Focus By NJ Drinking Water Quality Institute To Algae Blooms

• The NJ Drinking Water Quality Institute Is Ignoring Pharmaceuticals, Endocrine Disruptors, and Hundreds of Toxic Chemicals They KNOW Are In Your Drinking Water

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:

• NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. ESSEX CHEMICAL CORPORATION

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:

• NJ Gov. Murphy’s DEP Commissioner Was A Corporate Hired Gun Who Crippled DEP’s Natural Resource Damage Program

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:

• Shortchanging New Jersey by Billions

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:

• New Jersey Court Dismisses NJDEP Natural Resource Damages Claim

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:

• NEW JERSEY FORFEITS HUNDREDS OF MILLIONS IN POLLUTION DAMAGES

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:

• Past NRD Cases Highlight Vulnerability of Future Claims

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.

No Ethics Disclosure, Review, And Recusal Conducted Prior To Swearing In Ceremony

Unclear Whether the Commission Will Require Ethics Disclosures and Mandate Recusal

Issues involving actual, potential, or the appearance of conflicts of interest by Gov. Murphy’s corporate nominees to the Pinelands Commission, Ms. Matos and Mr. McCurry, were raised by many immediately after their nominations were announced in December.

On December 3, 2021, Carleton Montgomery, Director of the Pinelands Preservation Alliance wrote:

In a truly shocking move, Governor Murphy today nominated three corporate lobbyists for the Pinelands Commission. They would replace three seasoned environmental leaders with years of service for the Pinelands.

All three of the new nominees appear to have fundamental conflicts of interest due to their employment as lobbyists for industry.  Only one of the three appears to have any prior interest at all in environmental protection.

A scathing Star Ledger editorial also raised concerns regarding the corporate backgrounds and conflicts of interest of these nominees. The Star Ledger editorial board excoriated the Gov.’s move as “a craven power play”, a “brazen” attempt to “gut the Commission during lame duck”, and a “scheme” that was similar to the “bullying” by Gov. Christie.

Testimony before the Senate Judiciary Committee in early January by David Pringle of Clean Water Action specifically raised concerns about conflicts of interest of the nominees.

I specifically flagged and anticipated ethics reviews:

a) the personal background and conflicting corporate economic interests of Laura Matos and Kivvit; (we can’t wait to see her ethics disclosure and recusal forms – identifying all Kivvit’s clients and all her prior corporate work)

b) the corporate conflicts of interest of McCurry and Orsted, (he’ll be forced to recuse as well, including on matters related to PSE&G, who owns a 25% interest in Orsted)

I was just seeking “the highest ethical standards” and attempting to hold Gov. Murphy to his own standards and rhetoric, in his Executive Order #2:

I had a heated debate with Senator Gopal regarding, among other things, conflicts of interest raised by the corporate backgrounds of these nominees.

So, there was plenty of writing on the wall.

Given the extent of this public debate focused on ethics issues, one would expect that the responsible State ethics officials and the Pinelands Commission ethics officer – as well as the nominees themselves – would want to be fully prepared and do everything in their power to respond to and assuage public concerns about ethics.

Moreover, given these unusual and troubling circumstances, it seems obvious that the nominees themselves would proactively take steps to respond to be sure to avoid any conflicts of interest and assure compliance with State ethics laws – and do so BEFORE their official swearing in ceremony at the Pinelands Commission.

Gov. Christie sure proved he could take preemptive ethics action, just the wrong kind, see:

• Attorney General Invokes Privileges To Gag Pinelands Commissioners From Discussing Christie’s Office Emails

These steps before swearing in (or a maximum of 120 days later for some financial documents) would include, at a minimum: 

1) compliance consultation with State Ethics officials and the Pinelands Commission’s ethics officer;

2) submission of ethics disclosure documents regarding their prior and current corporate work;

3) an explicit offer to recuse to prevent the appearance of any conflicts.

Additionally, if I were under this kind of dark cloud, I would prepare and present a public statement to be read into the record at my swearing in ceremony expressing my commitment to the public interest and promise to give ethical service on the Commission. I would then release my ethics disclosure documents and promise to recuse categorically from any potential conflicts that may arise as a condition of my swearing in, BEFORE THE FACT, not on a case by case basis after the public raises concerns.

Proceeding under these common sense assumptions, on January 14, 2022, I wrote Pinelands Commission ethics officer Stacey Roth a letter. My letter reiterated the previously publicly expressed ethics concerns, and requested that Ms. Roth take the following steps BEFORE the swearing in ceremony: (emphasis added)

1) Consult with your ethics liaison in the Attorney General’s Office regarding the procedure, scope, and content of the ethics review for these Commissioners and secure a formal written opinion providing legal guidance;

2) Consult with your ethics liaison at the State Ethics Commission regarding the procedure, scope, and content of the ethics review for these Commissioners and secure a formal written opinion providing ethics guidance;

3) require that both Commissioners file ethics disclosure and recusal request documents, prior to the AG and Ethics Commission consultations suggested above and incorporate those documents in the AG and Ethics Commission reviews.

I was not aware that the Commissioners were sworn in earlier that same day, Jan. 14, 2022.

Apparently, none of the common sense ethics disclosures, consultations and recusal work was conducted – not by the Commissioners, not by the Pinelands Commission, not by the Attorney General’s Office and not by the State Ethics Commission.

This lack of ethics review reveals a stunning degree of arrogance and obliviousness to OBVIOUS and SERIOUS ethics issues by all involved, including the Governor’s Office, who one would think would not want his nominees to be under a dark ethics cloud.

As I wrote: The State Uniform Ethics Code has a very broad standard regarding potential conflicting interests:

So, this is far more than an “optics” issue.

Let’s repeat that standard: impair a “State official’s objectivity and independence of judgment”.

Does anyone seriously believe that Ms. Matos can be “independent and objective” given -in addition to her many prior corporate and political commitments – that she so obviously is a Murphy crony and foot soldier installed at the Pinelands Commission to do Murphy’s bidding?

Laura also served on numerous boards for Governor Phil Murphy, including the 2017 Transportation and Infrastructure Transition Advisory Committee, the New Jersey Complete Count Commission and currently the Governor’s Restart and Recovery Advisory Council.

Does anyone seriously believe that Mr. McCurry – who served in Gov. Murphy’s Office and was installed at DEP by the Gov.’s Office in a position he clearly was unqualified for, and then used that “experience” to leverage a revolving door job with off shore wind developer and friend of Gov. Murphy Orsted – can exercise “objective and independent judgement”, especially when he’s a Murphy’ hack and paid to serve corporate interests?. Here’s what Orsted hired him to do:

McCurry will help develop and implement strategies to ensure the successful advancement of existing projects, Ocean Wind 1 and 2, inform efforts to secure additional business and shape Ørsted’s position and standing in the state. 

Getting back on the topic of this post, yesterday, Ms. Roth responded to my Jan. 14 letter – to put it mildly, Roth’s response was non-responsive and dismissive.

Roth observed that my request that ethics review be conducted BEFORE swearing in was impossible, as they were sworn in BEFORE my letter was received.

Roth used that timing as an excuse to misrepresent and avoid responding to my ethics review requests. She wrote:

Please be advised that Laura Matos and Davon McCurry were sworn in as members of the Pinelands Commission at the January 14, 2022, Pinelands Commission meeting, following the reading of the Open Public Meetings Act statement. Pinelands Commission meetings normally occur on the second Friday of the month and start at 9:30 am. I received your email requesting the Commission to delay administering the oath to Ms. Matos and Mr. McCurry at 2:57 pm, long after the Commission meeting had concluded.

I didn’t ask the Commission to “delay administering the oath“. I requested that she and the Commission and the AG’s Office and the State Ethics Commission conduct an ethics review BEFORE the Commissioners were sworn in.

Worse, she then again intentionally misconstrued and misrepresented my request:

The Pinelands Protection Act, at N.J.S.A.13:18A-5(a)1, authorizes the Governor to appoint seven members to the Commission with the advice and consent of the Senate. The Senate approved Ms. Matos’ and Mr. McCurry’s appointments to the Pinelands Commission on January 10, 2022. The Act does not provide a mechanism for the Commission itself or the Commission staff to appoint, vet or challenge Commissioner appointments.

I didn’t ask Roth or the Commission to “appoint, vet or challenge Commissioner appointments.”

I requested that Roth and the Commission comply with their ethics responsibilities pursuant to State Ethics laws.

Roth then closes her letter by failing to respond to my ethics review request. In doing so, she failed to state exactly when and if the ethics disclosure and review process would be conducted categorically and BEFORE potential conflicts emerge, or on a case by case basis AFTER conflicts are raised publicly:

With regard to potential conflicts of interest and participation in official Commission matters, please be advised that all Pinelands Commissioners, as Special State Officers, are subject to the requirements of the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq., the regulations of the State Ethics Commission at N.J.A.C. 19:61 implementing same, the Uniform Code of Ethics and other ethics requirements pursuant to other statutes and gubernatorial Executive Orders.

Accordingly, Commissioners are required to recuse themselves from any official matter in which s/he has a direct or indirect financial or personal interest that is incompatible with the proper discharge of his/her public duties. N.J.S.A. 52:13D -23(e)2 and Uniform Code of Ethics, last revised July 2021, Paragraph IX Recusal on Official Matters. Commissioners are also required to recuse themselves from any official matter if s/he had any involvement in that matter, other than on behalf of the State, prior to commencement of his/her State service. Thus, the concerns raised in your letter regarding potential conflicts of interest, should such arise, would be addressed by the recusal process.

That’s it.

No mention of just when that “recusal process” will occur. No mention of disclosure documents. No mention of AG or State Ethics Commission consultation.

Hello!

All that should have occurred already!

I now must file OPRA requests for the ethics disclosure documents and write to the State Ethics Commission to request intervention to force public disclosure and a categorical recusal before the fact.

Ms. Roth is a lousy lawyer – as I exposed twice now, first during the Pinelands SJG pipeline debate and then by disclosing her false legal advice that the Commission had no authority to address climate change in the CMP, a legal opinion that the Commission itself has rejected 7 years later, see:

• Pinelands Commission Lawyer Claims Agency Lacks Power To Consider Climate Change In Review of $500 Million Fossil Infrastructure Project

• The Pinelands Commission Finally Takes A First Baby Step On Climate Policy

But this “legal opinion” shows her not only to be a lousy lawyer, but a disingenuous one as well that intentionally misconstrued my request, and I believe it was done in bad faith, as I previously [correction] wrote about an ethics complaint against her:

• Ethics Complaint Filed Against Pinelands Commission Lawyer

It also reveals Ms. Roth to be arrogant and totally insensitive to legitimate public concerns.

[End Note: Regardless of minimum legal requirements and the policy of Gov. Murphy’s Executive Order #2, financial and ethics disclosure documents should have already been filed with the Gov. appointments office prior to nomination, so that they could determine the qualifications of the nominees, and if they had fatal conflicts that could not be remedied.

Similarly, the Senate Judiciary Committee should have reviewed ethics disclosure documents prior to confirmation as part of the Senate’s “advise and consent” role.

Of course, the Pinelands Commission should have reviewed ethics disclosure documents and prepared recusal agreements BEFORE the Commissioners were sworn in, making them a condition of se4rvice on the Commission.

But none of this happened.

I did more rigorous due diligence before voting on minor matters before the North Hanover school board I served on.

And that does not reflect the “highest ethical standards and conduct” promised by Gov. Murphy’s Executive Order #2. So we have another example of hypocrisy. ~~~ end]

And Pretty Soon, The Wheels Are Coming Off

Climate Lawsuit Exposes The Sham Of NJ Climate Laws & Fraud Of Fake Green Groups

Upcoming Industry Lawsuit Sure To Put The Final Nail In The Coffin

Climate activists (EMPOWER NJ) have announced a lawsuit against the Murphy administration challenging DEP’s denial of their petition for rulemaking designed to force DEP to adopt enforceable regulations on greenhouse gas emissions, see NJ Spotlight story today.

We wrote about that petition to DEP several times, most recently in this post:

• Murphy DEP Denial Of Climate Petition Exposes The Sham Of Murphy’s Climate Rhetoric And Executive Orders

I don’t want to repeat all those arguments today, but I do want to make a few very quick observations – and a painful prediction – that clarify issues raised by the lawsuit, flaws in the news coverage, and future legal and political prospects.

I)  Lawsuit

I haven’t read the legal arguments yet, but I assume that the lawsuit will challenge DEP’s petition denial based on conflicts with State climate laws and Murphy’s Executive Orders and as an “arbitrary and capricious” violation of the NJ Administrative Procedures Act.

As such, it will force the Murphy Attorney General’s Office to file legal briefs that finally and openly admit the fundamental legal flaws that I have long written about with respect to NJ’s climate laws and Gov. Murphy’s Executive Orders, specifically:

1) The Global Warming Response Act (and it’s recent amendment) are toothless, in that they do not establish enforceable greenhouse gas emission reduction goals and do not authorize DEP to regulate greenhouse gas emissions from individual GHG emission sources, in relation to the goals.

In fact, just the opposite: a very strong legal argument can (and will) be made that:

a) the GWRA’s 80% emission reduction goals are purely aspirational – as are the amendments which call for interim “benchmarks”; and

b) the legislature eliminated DEP’s regulatory authority to control GHG emissions, on both a statewide basis (i.e. overall goals) and on an individual GHG emission source level via air permit emission limits.

Instead, the legislature provided that the market based Regional Greenhouse Gas Initiative (RGGI) is the sole State program for addressing GHG emissions, not DEP regulatory authority.

2) Gov. Murphy’s various Executive Orders are not legally binding on the private sector, that they can not expand DEP’s authority beyond what’s in statute, that they can not legally bind DEP’s discretion (e.g. by forcing DEP to propose regulations that follow the interim emission reduction goals or timetables in the Ex. Order), and that any violation of them by DEP is not a legally actionable matter in a Court of law, but rather an internal Executive Branch management issue.

In other words, climate activists, the media, and the public have been duped since the 2007 passage of the Global Warming Response Act. They are doubly duped by being told that Gov. Murphy’s Executive Orders were meaningful (instead of the legal equivalent of a press release).

That fraud will all now be made absolutely clear, and it will be revealed by the Murphy Attorney General in legal briefs. (A similar thing happened when the Biden administration’s lie about 80 million acres of Gulf oil & gas leases was exposed by legal briefs.)

These tragic legal realities collide with the naive and ill informed assumptions of the EMPOWER activists:

The failure to establish such benchmarks, the coalition argued, ignores Gov. Phil Murphy’s own executive order issued in November 2021, calling on the state to reduce carbon pollution 50% below 2006 levels by 2030. The coalition also argued the denial flouts amendments to the Global Warming Response Act signed by Murphy in 2019 requiring interim benchmarks be established to achieve the goal of reducing emissions by 80% by 2050.

“There are only two ways to look at DEP’s outright denial of our petition: DEP has gone rogue or this administration is uninterested in pursuing its own stated policies and state law,’’ said John Reichman, chair of BlueWaveNJ’s environment committee and a member of the coalition, Empower NJ.

No, there are 3 ways: the third is that the NJ law is toothless.

The DEP has not gone rogue. DEP is led by a former corporate lawyer who knows the law and follows orders.

The Murphy administration – like their predecessors – has always been spouting slogans and they have always known that NJ climate laws are toothless.

Another media outlet similarly exposes this contradiction

“Biden set up enforceable targets. Many other states have also set legally enforceable targets. New Jersey is an outlier, where there’s no rules or regulations at DEP to actually enforce or achieve these targets,” said Matt Smith, NJ director of Food and Water Watch.

NJ law does not empower DEP to set enforceable “targets” or permit specific GHG emission limits.

President Biden’s “targets” are not enforceable. They are just as aspirational and fraudulent as Gov. Murphy’s are.

The real comparison that EMPOWER ignored is right next door in New York, where there are legally enforceable standards, which, as I’ve written, were just used by NY DEC to deny air permits for new gas plants. WAKE UP!

II)  Spotlight coverage

As I’ve written, NJ Spotlight failed to cover the EMPOWER petition when it mattered, ie. when it was filed and when DEP postponed a decision just before the election. This is important, because it is possible that Gov. Murphy’s narrow margin of victory in the election was provided by voters who mistakenly believed that he was serious about addressing the climate crisis.

It is also interesting to note a very revealing fact in how they source today’s lawsuit story.

I haven’t conducted the analysis but would reliably estimate that well over 90% of Spotlight stories on climate and energy rely on just 3 environmental sources and that all these sources almost always praise Gov. Murphy and DEP and BPU: Doug O’Malley, Ed Potosnak, and Tom Gilbert.

But today, Tom Johnson uses Tracy Carluccio from Delaware Riverkeeper:

“The Governor and his DEP must recognize the urgency of measurably reduce greenhouse gas emissions and they must specifically demonstrate how NJ plans to achieve what Gov. Murphy says he wants — a 50 percent cut back by 2030,’’ said Tracy Carluccio, deputy director of the Delaware Riverkeeper Network.

Why didn’t Tom put Murphy cheerleaders Doug O’Malley, Ed Potosnak, and Tom Gilbert on the spot and force them to go on the record?

So, where are the Murphy sycophants?

III)  Future Prospects

Legally, future prospects are bleak and getting bleaker.

At the national level, the US Supreme Court is on the verge of stripping EPA of jurisdiction to regulate greenhouse gas emissions.

A similar legal attack is very likely to be mounted in NJ that challenges DEP’s recently proposed CO2 emission standards for electric generating units.

[Ironically, DEP’s proposed CO2 emission standards were not even proposed pursuant to the Global Warming Response Act. The DEP’s legal authority and basis for the proposal is the NJ Air Pollution Control Act (traditional BACT based). But DEP does such a lousy job explaining that and puts so much bullshit in the proposal about the GWRA that industry can assemble a plausible legal argument that DEP did. DEP may even think that the GWRA authorizes emission standards! DEP seems to think they can wave a magic wand called a “comprehensive strategy” and do whatever they want. We used to write what were called “Basis And Background” documents at DEP to make the legal basis clear. But DEP seems to have simply assumed they have unambiguous legal authority. DEP basically just cited the GWRA on the cover sheet of the proposal, with virtually no legal basis provided. That was a huge legal mistake.

Amazingly, here is all that DEP wrote about the complex relationship between statewide emission reduction “goals” of the GWRA and site specific individual CO2 emission limits on a single discrete category of emissions sources (EGU’s) for a single global warming gas (CO2): (emphasis mine)

“Comprehensive strategy”? What are the “relevant provisions”? Are those “relevant provisions” authorizing and applicable provisions? And it is not at all clear that the GWRA “requires” “New Jersey” (who in NJ? How?) to reduce short lived pollutants – and what is the distinction between all GWRA pollutants and short lived ones? And where is the authority delegated to the DEP to set emission standards and enforce them in individual air permits? On top of that, there is the legislative history of the GWRA (where the introduced version of the bill included DEP regulatory and permit authority, which was deleted. Subsequently, RGGI was enacted. This is certainly not a slam dunk legal case that can be asserted in a single vague paragraph. Heads should roll at DEP for this schlock legal work.)

Industry will challenge DEP’s regulations despite the fact that they are lax and will have very little if any impact.

Here’s where the EMPOWER NJ activists get it exactly right:

“None of the administration’s existing or proposed climate rules will prevent the continued proliferation of dirty pipelines, power plants and other new sources of climate destroying pollution in New Jersey. The proposed power plant rule doesn’t even require polluters to use the best available technology, let alone do anything to stop new fossil fuel plants, like the one proposed by the Passaic Valley Sewerage Commission in Newark, from being approved”, added Matt Smith, NJ State Director for Food & Water Watch.

The corporate GHG polluters are willing to allow RGGI to remain in place, because RGGI not only does not cap total emissions it actually shields individual polluters from DEP regulation and merely requires that they purchase GHG emissions allowances, which are very small cost and amount to business as usual.

But corporate polluters simply can not accept DEP regulatory authority over their emissions. Period.

Should DEP be allowed to regulate GHG emissions now, a future DEP Commissioner with a spine – unlike the current former corporate lawyer heading DEP – might take the GWRA goals seriously and establish an enforceable Statewide GHG emissions cap; ratchet down on current GHG emissions; and block issuance of permits for new fossil infrastructure.

[Update: and just imagine if DEP proposed land use regulations (REAL regulations, not the FAKE ones that will be proposed later this year) that mandated that any new buildings or developments seeking DEP land use or all other permits and approvals had to be electric powered, install solar, and provide emissions offsets for their climate footprints!

Imagine if DEP EV programs and diesel rules actually mandated that all commercial vehicle fleets be converted to electric by 2030!

Imagine if DEP’s greenhouse gas emissions rules regulated methane – which they don’t – and regulated all sources – not just 10% that produce electric power for the grid – and lifecycle impacts – which they don’t even mention – and provided clear authority for DEP to deny permits based on failure to meet GWRA goals – which they don’t – and mandated the shutdown of major sources of GHG emissions that are no longer necessary, like garbage incinerators, sludge incinerators and medical waste incinerators – which they don’t. 

Imagine if DEP used land use permit renewal authority to mandate that buildings be electrified, energy efficient, and solar powered.

Imagine if DEP used air permit renewal authority to mandate reductions in GHG emissions to actually attain the GWRA goals.

Imagine if DEP imposed $130 per ton fees on greenhouse gas emissions that they mandate for other air pollutants.

Imagine if DEP land use regulations mandated that any land conversion or deforestation that reduced carbon sequestration had to be offset or mitigated by a 5 – 1 ratio.

Imagine if DEP land use regulations required that every large flat roof had and parking lot had to have solar.

That every large employer and shopping center had to provide EV recharging stations.

Just imagine what DEP could do to reduce emissions if they had and seriously used regulatory authority!

One has to imagine all this because DEP has no plans at all to do any of this.

So why aren’t NJ climate activists demanding ANY of this? ~~~ end update]

Corporate polluters simply will not tolerate those risks and will sue the Murphy DEP to block any possibility of that in the future.

On the NJ State level, as I noted above, the EMPOWER lawsuit will fail. The only question is whether the Court will mask the underlying substantive legal flaws I’ve noted above behind a narrow administrative law procedural “arbitrary and capricious” decision, where they defer to DEP expertise. Regardless, the AG’s briefs will finally take the mask off and expose the fraud.

Politically, as I’ve written, the green masks are off – of both Murphy and his sycophants – and now this lawsuit means that the gloves are off.

Because: a) Gov. Murphy can no longer hide behind the fake green cover provided by his sycophants;, b) it is becoming increasingly obvious that his DEP  Commissioner is a corporate fraud; c) the media smells blood in the water; d) the problems are all getting worse; d) there are several decisions in the pipeline that will further expose the fraud; and e) the AG will be forced to let the cat out of the bag – this all means that the wheels will come off in the near future.

Bank on it.

It pains me to write this, but the sooner the dire truth is known, perhaps that will prompt the activist to get out in the streets, end the inside DEP “Stakeholder” games, force the media to warn the people, and discredit the Murphy green cheerleaders and sycophants who provide political cover and false hope.

[End Note: Not all the Green masks are off.

I just got a hold of the Empower NJ Coalition press release.

Notably absent from that press release are Coalition members Doug O’Malley (Environment NJ), Dave Pringle (consultant, former CWA), and Amy Goldsmith (CWA).

Their absence is not an accident. I’ve worked with them for many years and all of them are always very eager for any press coverage and fight like hell to get a quote in a press release.

It means that they are afraid of antagonizing the Murphy administration and it signals that they are still loyal sycophants in the Murphy Green cover operation. Pringle is a flagrant collaborator, as his role in the Christie administration and his recent manipulations on the Pinelands nominees reveal. O’Malley is hopelessly corrupt as is Goldsmith.

Shame on them.

The Epitome Of Setting A Low Bar

No Vision, No Leadership, Critical Issues Ignored

Cancel Your Membership Today – Contribute Your Time and Money To Real Activists

Ed Potosnak, 2nd from left. Four more years of sycophancy

A friend just forwarded Ed Potosnak NJ LCV’s fundraising letter to members, which outlined a “bold” agenda for the next 4 years.

One would think, after 4 years of a lot of promises but very little delivery from Gov. Murphy – and with NJ media finally honestly reporting that  fact – that NJ LCV would feel somewhat betrayed and reflect on the effectiveness of the sycophantic strategy of the first four years. (e.g. see: Green Masks Are Off)

One would think – after Gov. Murphy virtually ignored the climate crisis in his recent state of the state address – again, a fact critically reported by NJ media – that NJ LCV would join with real climate activists and express their deep disappointment and ramp up activist tactics and political pressure on Gov. Murphy.

One would think, with critically important upcoming DEP regulatory proposals on environmental justice, and climate, and electrification of buildings – and huge pending DEP permit decisions on multiple fossil infrastructure and environmental justice projects like PVSC power plant and Fortress Energy LNG (a project that is so bad, it has gotten national attention in the Washington Post)– that NJ LCV would join activists in drawing bright red lines and very clear demands on these issues, while ramping up pressure on Gov. Murphy.

One would think that NJ LCV would inform their members about and prioritize the enormous challenges ahead and important DEP policy and planning documents about to be released or finalized, including:

• DEP proposed Natural Lands Initiative which will determine the fate of NJ’s last remaining forests;

• DEP’s renegotiation of the greenhouse gas emissions caps under the Regional Greenhouse Gas Initiative (RGGI) – (see RGGI Program Review) which, despite the fact that the current RGGI cap is 30% higher than current emissions (see bottom of page 5), is still more restrictive and will reduce more emissions than DEP’s lame proposed CO2 emission rule for the power sector. There are NO NJ activists involved in the current RGGI renegotiation!;

• DEP’s failure to respond to the explosion of a new wave of sprawl, including proliferation of warehouses and industrial solar arrays that are destroying the last remaining forests, farms and rural communities in NJ, triggering what I have called the need to fight the battle for “The Final Frontier” in NJ’s land use war;

• the need to derail the Gov.’s radically pro-development economic development plan for the Highlands;

• the need to restore focus and integrity at the Pinelands Commission. The conservation agenda for the Pinelands needs to focus on adopting CMP amendments to address the climate emergency, and restrict water use to protect ecological functions, and restrict destruction by ORV’s, and monitor and regulate endocrine disrupting chemicals.

• a host of science and regulatory issues to protect public health and ecological integrity by restoring Christie DEP rollbacks, closing critical climate loopholes, and strengthening current DEP clean water, clean air, land use, and drinking water regulations, including unregulated pharmaceuticals and endocrine disrupting chemicals;.and

• under-regulated chemical storage facilities that pose enormous unacceptable risk of fire and explosion to NJ urban communities.

And finally, one would think that after 4 years of spin by the Gov.’s Press Office and watching how DEP’s former corporate lawyer Commissioner has gaslighted communities across the state, one would think that the NJ LCV policy and program demands would be expressed clearly and with competence and precision, to leave very little wiggle room, i.e. don’t get fooled again.

One would be wrong – very wrong.

NJ LCV just issued what they delusionally described as a “bold” agenda for the next for years. (the only thing “bold” about it is the font I used!) Aside from the slogans, this agenda could have come from the NJ League of Municipalities.

Instead, it is lame (my comments in red). Read it (and then don’t weep: send your NJ LCV resignation email directly to Ed Potosnak):

• Make New Jersey’s commitment to a 100% clean energy economy permanent by ending diversions from the Clean Energy Fund

[note the failure to specify how the diversions would be stopped, e.g. a Constitutional amendment dedicating the Fund is the only way to do this.]

• Ensure communities have accessible and modern public transit by establishing a dedicated funding source for NJ Transit

[NJ Transit gets a dedicated funding source, but Clean energy, climate, clean water, state parks, etc don’t and suffer even more budget cuts like those that resulted from NJ LCV’s “Keep It Green” theft of environmental and state parks funds? NJ Transit still relies on fossil power.]

• Ensure our cities and towns are ready for extreme storms by giving municipalities resources to invest and install green infrastructure projects

[why is climate adaptation a local responsibility? Why does NJ LCV ignore DEP’s upcoming climate PACT land use regulations? Is Potosnak aware that the PVSC power plant is a local “resilience” project? That DEP’s “green infrastructure” stormwater regulations rolled back standards and was sharply criticized by FEMA?]

• Protect and expand access to open spaces by increasing funding for trail and park maintenance

[This is the worst one. NJ LCV was part of the “Keep It Green” campaign that stole funds constitutionally dedicated to State Parks. It takes real chutzpa to now call for more funding years after.]

• Reduce carbon pollution from homes and businesses by ending new residential natural gas interconnections, particularly in communities of color, and retrofitting existing homes

[Why not be clear? Why ignore flaws in BPU Energy Master Plan that defer consideration and implementation of building electrification to beyond 2030? Why not be specific on State regulations, e.g. DCA Building codes or DEP land use? Why not set specific carbon reduction goals and timetables? This is a worthy goal but the demand is lame and ineffective.]