Views From The Front Porch
Above is view from bluff at Fort Worden State Park, Port Townsend Washington. That’s snow capped Mt. Baker in the distance.
Below is a view from my front porch. We Love working boats!
How Much Are Private Law Firms Paid?
What Is Their Take Of Recovered Money?
Why Privatize DEP Litigation? Don’t We Have An Attorney General?
DEP just sued Ford Motor Company for compensation for what will likely amount to billions of dollars in damages to natural resources at the Ringwood Mines Superfund site.
I can not provide even a ballpark estimate of the actual amount of compensation DEP is seeking, because they have not quantified damages (like they did in the notorious $8.9 billion Exxon NRD lawsuit):
Upon reading the lawsuit, I was surprised to learn that DEP is represented by 3 private law firms, including a firm out of Houston Texas. So I filed the following OPRA request to learn the details:
“On June 16, 2022, NJ DEP filed a lawsuit against Ford Motor Co. to recover Natural Resource Damages at the Ringwood Superfund site. According to the Case Information Statement, Plaintiff DEP is legally represented by private counsel, specifically including:
1) Locks Law Firm, Roseland NJ
2) The Lanier Law Firm, P.C., Houston Texas
3) Hausfeld, LLP, Philadelphia Pa.
I request the following public documents:
1) contracts, retainer agreements, and/or legal Service agreements between the Plaintiffs (DEP and AG’s Office) and the above 3 private law firms regarding the subject lawsuit, including any documents that govern the subject litigation, including legal fees, allocation of recovered monies, and roles and responsibilities for conducting the subject litigation.
2) correspondence between the above 3 private law firms and DEP Commissioner LaTourette regarding the subject litigation, from January 1, 2020 and today.”
DEP replied to that OPRA request late yesterday, literally just minutes before the legal deadline, as follows:
Dear Mr. Wolfe,
The New Jersey Department of Environmental Protection, Office of Record Access received your Open Public Records Act (OPRA) request on 06/20/22 to which the above tracking number was assigned. As such, the seven (7) business day deadline (due date) to respond to your request is 06/28/22. Your request requires additional time beyond the due date because of the time required to search for the responsive records. Your request requires an extension of time until 07/08/22.
[…]
Thank you!
Department of Environmental Protection
Office of Records Access
Tel: (609) 292-2174
Why does DEP need an extension?
My OPRA request was routine and it involved a high profile case. DEP should have those records, particularly on that kind of significant and unusual case readily available, especially given that DEP had just issued a joint press release with the AG on the lawsuit. These records are all electronic and readily retrievable.
My OPRA request did not require any rigorous search for records. So DEP’s rationale for delay is highly suspect.
I’ve seen these kind of DEP delay tactics numerous times. Almost always the delay is related to some kind of scheme to limit public disclosure.
For example, DEP regularly uses delays to manufacture legal pretext’s for not disclosing information under OPRA exemptions for “deliberative privilege” or “attorney client work product”.
(and take a look at how ever RUTGERS, an academic institution, abuses the same “deliberative privilege” loophole.)
(one time, DEP even delayed response to my request for Commissioner LaTourette’s ethics disclosure and recusal documents so that he would have time to actually submit them!)
Sometimes DEP will delay release of information so they can divert attention or get out in front of, control, and spin the story by holding an event or issuing their own press release (or undermining my credibility with the press corps so that they don’t report the story).
I’ve filed hundreds of OPRA requests – and been a DEP employee who responds to them – so I know how the DEP plays this OPRA game.
The abuse has gotten far worse, such that almost all DEP emails; internal communication; draft Reports, including raw data; and staff technical review data, findings and recommendations are no longer disclosed under a sham interpretation of the OPRA “deliberative privilege” exemption.
DEP has also used an old Tobacco industry abuse to try to classify routine communications and scientific reports as “attorney client”.
[For 15 years, in terms of OPRA, transparency, and the public’s right to know, it’s only gotten worse at DEP (and we haven’t even mentioned the gag orders), see:
I’ve brought these abuses to the attention of legislators requesting oversight or reform legislation to close loopholes – especially former Senator Weinberg, who sponsored OPRA reform bills – and gotten no response. I’ve also brought these abuses to the attention of the NJ media, who also has shown no appetite to engage.
On Jun 25, I also filed a related OPRA request seeking enforcement documents, see:
We’ll report back when DEP responds. I’m predicting a denial, as deliberative and attorney client.
DEP Weak CO2 Emissions Proposal, No Adaptation Rules, And Not Even Spending Money
Gov. Environmental Award to NJ Climate Alliance (December 10, 2018)
Fulfilling a campaign promise, less than 2 weeks after his election, NJ Gov. Murphy issued Executive Order #7, which authorized NJ to rejoin the northeastern states Regional Greenhouse Gas Initiative (RGGI). He got high praise from environmental groups and great press coverage:
Gov. Phil Murphy yesterday signed an executive order to have the state rejoin the Regional Greenhouse Gas Initiative, a step signaling the state is shifting to a much more aggressive stance on fighting climate change.
In an event in Atlantic Highlands, the governor fulfilled one of his primary environmental pledges by reentering the multistate program to reduce pollution from power plants by participating in the carbon budget-trading program.
Gov. Murphy bragged about that multiple times. For example, when DEP adopted regulations implementing Executive Order #7, the Gov. again highlighted the significance of NJ rejoining (RGGI). Here’s a June 17, 2019 press release:
“Climate change and sea-level rise affect us all, and as a coastal state, New Jersey is especially vulnerable to the impacts of global warming,” said Governor Murphy. “The reckless decision to pull out of the Regional Greenhouse Gas Initiative in 2012 cost the state millions of dollars in revenue that could have been used to put toward initiatives to reduce greenhouse gas emissions and improve the health of our residents. New Jersey has reemerged as a national leader in fighting climate change and reentering the Regional Greenhouse Gas Initiative will propel us on a path to 100 percent clean energy by 2050.”
The Gov. emphasized and prioritized the allocation of RGGI revenues to “disproportionately impacted” communities: (EO#7):
Such guidelines shall include, as a primary consideration of the State agencies charged with allocating said funds, factors that will ensure that funds are allocated to projects that will serve communities that are disproportionality impacted by the effects of environmental degradation and climate change, and which will alleviate the negative effects on human health and the environment resulting therefrom.
On a daily basis, there’s a drumbeat of media reports about the billions of dollars of investment that will be required to reduce energy demand, maximize energy efficiency, electrify buildings and transportation, upgrade the power grid, phase out fossil, and transition to 100% renewable energy to meet deep greenhouse gas reduction climate goals.
We regularly read about Gov. Murphy and DEP Commissioner LaTourette’s commitment to disproportionately impacted environmental justice communities.
Yet 4 and a half years after the Gov. issued EO#7 and 3 years after rejoining RGGI, according to recent DEP testimony to the legislature on this year’s budget, DEP has spent less than 1% of over $256 million collected.
In DEP’s response to Legislative oversight of DEP’s budget, DEP wrote: (@page 5)
Since New Jersey’s 2020 return into RGGI, the State has received $256,290,826 in auction proceeds. To date $116,750,471 has been awarded and allocated to projects and $1,380,452 has been spent.
Did you get that?
DEP has collected over $256 million dollars and spent just $1,380,452 – that’s 0.5%!
Is DEP practicing “reckless” mismanagement that cost the people millions of dollars that could have been spent to reduce GHG emissions and improve public health? Let’s repeat Gov. Murphy’s press release:
“The reckless decision to pull out of the Regional Greenhouse Gas Initiative in 2012 cost the state millions of dollars in revenue that could have been used to put toward initiatives to reduce greenhouse gas emissions and improve the health of our residents.
Look, I’ve long been a harsh critic of RGGI, for many reasons, including: 1) lack of a real cap on emissions, 2) the fake cap is far too lax to meet emission reduction goals, 3) the emissions allowance price is far too low; 4) RGGI applies to less than 20% of greenhouse gas emissions, 5) the cost of the program has been greatly exaggerated, and 6) the program has been politicized.
But failure to even spend the RGGI money – in the face of the climate emergency and tremendous unmet investment needs – is simply outrageous.
And I’m sure PSE&G has not waited years to receive their $300 million annual nuclear subsidies.
And while DEP is not spending available RGGI money, the Gov. has diverted and spent millions of dollars of Clean Energy Funds (even with a huge budget surplus).
(all while over 1 million NJ residents can’t pay their bills and face utility shutoffs)
Once again, the facts and substance exposes the PR of the Murphy DEP.
Don’t hold your breath waiting for the NJ media to report these kind of inconvenient facts, or for NJ environmental groups – sycophants and cheerleaders all – to criticize them.
[End Note: It’s probably a very good thing that DEP has not spent the RGGI money allocated to carbon sequestration, because under current DEP “Forest Action Plan” policies and RGGI funding regulations and programs, they would conduct sham “young forest” “thinning” “stewardship” logging projects and call them sequestration.
Of course, there is a massive need and unmet demand for urban forestry projects – which DEP has failed to satisfy – and of course I strongly SUPPORT expenditure of RGGI money for those urban forestry programs.]
Courts Struck Down DEP “Interim” Rules On PFNA
Longtime Legal Precedent Dooms Any DEP “Emergency Rule” Proposal
Activists don’t know the difference between the science supporting a “climate emergency” and legal requirements to justify “emergency rules”
Murphy DEP Commissioner Latourette recently publicly announced his plans to propose DEP’s long delayed “Climate PACT” land use rules as “emergency rules”, see this June 1, 2022 NJ.Com story:
The next day, on June 2, I wrote to explain how that would violate NJ’s Administrative Procedure Act and be struck down by NJ Courts or vetoed by the NJ Legislature.
On June 3, the NJ business community weighed into the debate with a letter to Gov. Murphy strongly opposing proposal of these rules as “emergency rules” (procedurally (not substantively) for exactly the same reason I did the day before).
But despite these obvious legal problems – which I again highlighted on June 7 and even raised the question of whether the Murphy DEP is intentional sabotaging their own regulations – on June 21 NJ climate activists wrote a letter to Gov. Murphy demanding that DEP propose emergency rules.
Unfortunately, the activists don’t know what they are talking about. The activists don’t know the difference between the science supporting a “climate emergency” and legal requirements to justify “emergency rules.”
If DEP follows that recommendation it will be rejected by NJ Courts and inject years of even more destructive delay.
Regardless, that request was prominently and uncritically reported by NJ Spotlight.
So, in doing some followup research on this legal issue, I found a related decision by NJ Appellate Division that struck down DEP’s 2014 “Interim Specific Groundwater Quality Standard” (ISGWQS) for “forever chemicals” PFNA.
At the time, I warned that DEP’s proposal was illegal and violated the NJ APA:
“it is NOT adopted as a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.”
Of course, the chemical industry immediately sued DEP and won.
And of course, none of this got reported by the cheerleading media or criticized by environmental groups, but the corporate lawyers obviously know all about it.
So today, in hopes of avoiding another regulatory train wreck, I just wrote to warn DEP Commissioner LaTourette NOT to propose an emergency rule but instead follow traditional notice and comment rulemaking procedures:
Dear Commissioner LaTourette:
I am writing to urge your reconsideration of your publicly announced plans to propose upcoming Climate PACT rules in the form of an “emergency rule” under the NJ APA.
Such a plan is a clear violation of the APA, as pointed out in the Business Community’s letter to Gov. Murphy, and is therefore doomed to failure and will create even more delay in adopting necessary regulations.
As you know, NJ Courts closely scrutinize DEP’s regulatory actions, particularly on procedural grounds.
For example, as you may know, the Appellate Division struck down DEP’s “interim” IGWQS for PFNA on procedural grounds as a violation of the APA.
That Appellate Court decision (link below) is a roadmap to how Courts will analyze any DEP emergency rulemaking. The Appellate Division PFNA IGWQS decision relied on the NJ Supreme Court’s articulation of precedent on triggering APA procedural requirements for rulemaking (i.e. the Metromedia and University Cottage Club decisions).
FYI, just 4 days after DEP posted the ISGWQS on the DEP website (March 14, 2014), I warned that the IGWQS:
“it is NOT adopted a a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.”
I’ve similarly been correctly warning DEP for decades about the need to adopt Natural Resource Damage regulations as well.
As you know, those warnings have been ignored and NJ Courts have rejected DEP NRD claims on that basis.
Let’s not repeat the same failures – please listen to my criticism, which are offered in good faith.
Bill Wolfe
Links to relevant documents on the PFNA IGWQS:
Appellate Division decision:
law review
law review
https://www.mankogold.com/publications-CCNJ-NJDEP-ISGWQC-PFNA-Rulemaking.html
wolfenotes warning
DEP Ford Lawsuit Seeks $100,000 Per Day In Civil Penalties For Violations Of NJ Environmental Laws Over a 45 Year Period
The Murphy DEP and Attorney General issued a joint press release last week, touting their lawsuit against Ford Motor Company seeking public compensation for Ford’s Damages to Natural Resources (NRD) at the Ringwood Mines Superfund site.
I wrote an overview analysis to put that lawsuit in context and point out vulnerabilities.
In addition to the NRD aspects, I was intrigued by one particular aspect of the lawsuit, which seeks the award of $50,000 per day in civil penalties for violations of the NJ Solid Waste Management Act and NJ Soil Compensation And Control Act. (a total of $100,000 per day, for a period of about 45 years).
While DEP and the AG are not pursuing criminal indictments, those are the maximum civil penalties allowed under NJ environmental laws, and are rarely, if ever, sought by DEP.
I could not recall prior DEP enforcement actions against Ford at Ringwood, so my initial impression was that this was not a credible demand. For example, if I were a Judge, I would ask why should DEP ask a Court to impose penalties that they had failed to seek under their own administrative enforcement powers?
So, to get the facts on DEP’s enforcement actions against Ford, I filed an Open Public Records (OPRA) request and sent Commissioner LaTourette a note requesting his support for that inquiry.
Here is my email to Commissioner LaTourette – we’ll keep you posted on DEP’s response:
Dear Commissioner LaTourette:
Per DEP’s recent NRD lawsuit against Ford Motor Company regarding the Ringwood Mines Superfund site, I noticed that DEP is seeking, among other things, $50,000 per day Civil penalties for violations of the NJ Spill Compensation Control Act and NJ Solid Waste Management Act.
To clarify and provide public information regarding that provision of the DEP’s NRD lawsuit, I filed the below OPRA request.
In light of your professed commitments to transparency and the public interest, I would appreciate your support in responding to this OPRA request to ensure that it receives a fully compliant response.
“I request the following public records:
1) DEP compliance and enforcement actions (Notices of Violation, penalty assessments, settlement agreements, fines collected, etc) issued to Ford Motor Company for violations of the NJ Spill Compensation and Control Act, the NJ Solid Waste Management Act, NJ Water Pollution Control Act and other applicable NJ laws and DEP regulations for activities at the Ringwood Mines Superfund site;
2) Written communications between Ford Motor Company and the NJ DEP regarding compliance and enforcement activities for activities at the Ringwood Mines Superfund site.”
Thank you,
Bill Wolfe