WolfeNotes.com

Lawsuit Results In Privatization Of The Attorney General’s Office And DEP

Contingency Fees Redacted

The AG/DEP Press Releases Didn’t Even Mention Private Law Firms

On June 16, the Murphy DEP and Attorney General jointly issued a press release touting their lawsuit against Ford Motor Company. The lawsuit seeks compensation for damages to publicly owned natural resources for many years of illegal hazardous waste dumping at the Ringwood Superfund site.

The press release failed to mention that three private law firms are representing DEP in this litigation:

The Ford Motor Co. matter is being handled by Deputy Attorneys General Thomas Lihan and Carley Doyle of the Environmental Enforcement and Environmental Justice (EEEJ) Section within the Division of Law’s Affirmative Civil Enforcement Practice Group, under the supervision of Assistant Attorney General Aaron Kleinbaum and Section Chief Gary W. Wolf II.

After twice delaying response to my OPRA public records request for a copy of the law firm contract documents, today DEP provided the legal retainer agreement.

(my other OPRA requests discovered that DEP had not issued a single enforcement fine/penalty against Ford for illegal “reckless” and “wanton” dumping of hazardous waste that rises to a criminal violation).

The contract with those 3 law firms is on a contingency fee basis (the State pays nothing if they lose), but the rates/percentage of recovery are redacted. The AG and DEP redacted how much these law firms will be paid and what percentage of any monetary recovery they will get (see above).

It is important to know how much these private law firms will be paid, because any recovery of money is legally allocated to compensate the public for the damages the polluters did to publicly owned natural resources. This money is used to restore that damage, so money that goes to private law firms is diverted from natural resources and the public interest.

This could be a several hundred million dollar recovery – DEP is seeking $1.6 billion in civil penalties alone and the environmental damages are devastating large – so the potential legal fees could be huge.

The only limitation on the amount of what could be huge legal fees is something called a “lodestar multiplier” (don’t you just love the terms these lawyers use!).

The law firms are given unlimited access to DEP staff, so this agreement creates an insidious form of privatization, as the DEP staff can be summoned to work for private lawyers not DEP managers. The 3 law firms are also allowed to hire private consultants and experts, so DEP staff will be working for them too.

Critical ecological, economic, and public policy issues will be made by private lawyers and private consultants, not the DEP experts and AG lawyers. (for example, it appears from the lawsuit complaint that the State will not be seeking damages for impacts and risks to the Wanaque Reservoir. That alone was a huge decision and it’s buried in a complex legal filing drafted by private lawyers).

It is also unclear how tribal rights, interests, and damages will be represented and compensated in the research proceedings controlled by private law firms. (ah, the language police got me! Being such an old white racist, I failed to use the terms “indigenous peoples” and “Native Nations” for the Ramapough Nation).

The decision to hire private law firms is a stunning admission of incompetence in the AG’s office and DEP, particularly in light of the miserable track record of State lawyers and DEP experts in prosecuting these NRD cases.

Most notoriously, the Christie administration’s pathetic and corrupt settlement of the Exxon $8.9 billion NRD claims for just $225 million (less than 3 cents on the dollar) is absurdly a success story.

DEP has lost several NRD cases and settled scores of others for even less.

NJ Courts have rejected DEP NRD claims because Courts have said DEP must adopt regulations that monetize the economic value of damaged natural resources.

Former DEP Commissioner Brad Campbell entered into a 2004 judicially approved legal settlement agreement that required DEP to adopt those NRD regulations (see: New Jersey Society of Environmental & Economic Development (SEED) v. Campbell (N.J. Super. Law Div., Mercer County) .

But almost 20 years later, DEP still has failed to adopt those NRD regulations and continues to lose cases and settle for pennies on the dollar due to their weak legal hand.

The NJ lawyer that represented industry in the SEED NRD case is Steve Picco – he and I were quoted in a NJ Law Journal Article on Exxon settlement and we were in agreement on that DEP failing, see:

• Bombshell: Bungling By DEP Led To Exxon Deal

Here’s how the NJ Law Journal reported that story:

[Bill] Wolfe said the lack of valuation rules leaves the state vulnerable to challenges on the amount of damages.

The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said.

Exxon’s lawyers are “sharp enough to know this” and to assume the state knows it is legally vulnerable, Wolfe said.

“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.

There’s another quirk in this NRD litigation that warrants public attention.

Current DEP Commissioner LaTourette was a lawyer for a corporate polluter that DEP sued to recover natural resource damages. The polluters won! The case was part of the precedent that forced the Exxon settlement. Here is that case:

I suspect that this case will take years to litigate and ultimately result in another paltry settlement, with the private law firms taking a significant percentage of the recovered money (will that amount be public?)

In the meantime, I would expect the NJ press corps to ask some tough questions to the AG’s Office and DEP as to why private legal counsel are necessary, given the large environmental law unit at the AG’s Office and the fact that DEP Commissioner LaTourette has a corporate law background, including in litigating NRD cases.

I’d also expect NJ legislators to be concerned and demand to know why the compensation of private law firms with public money is a secret and exempt under OPRA.

(Retainer agreement and complete OPRA response provided upon request)

Climate Emergency Does Not Meet Legal Test Of “Emergency” Under Administrative Law

DEP Certain To Lose Lawsuit On Procedural Grounds

This will set back regulations by several more years

Absent “an imminent peril to the public health, safety, or welfare,” the APA requires public notice and an opportunity for comment before the adoption of any rule. See N.J.S.A.52:14B–4. (NJ Supreme Court)

Once again, NJ environmental groups are totally fucking up an already bad situation – it is unclear whether this pending disaster is a result of incompetence or cowardice – or both.

After years of “Stakeholder” meetings, Executive Orders, press releases, and promises, the Murphy DEP has delayed proposal and adoption of climate adaptation regulations they have dubbed “PACT” (i.e. DEP flooding, stormwater, coastal, and wetlands land use regulations).

During this delay, NJ has again suffered climate related devastating flooding and loss of life.

Equally disturbing, during this delay, DEP has approved hundreds of land use permits and related approvals that put even more people and property in harms way, thereby exacerbating NJ’s national negative profile as a FEMA “repetitive loss” State.

I’ve suggested a strategy environmental groups can use to respond to problems created by DEP’s delays, see:

• Developers, Banks, Insurance Companies, And The Real Estate Industry Can No Longer “Rely” On DEP Wetlands and Flood Hazard Delineations

Obviously, this has been a huge embarrassment to Gov. Murphy and DEP Commissioner LaTourette.

Despite these massive failures, NJ Environmental groups are very reluctant to criticize Gov. Murphy and DEP Commissioner LaTourette (cowardice). Those same groups lack regulatory expertise and experience (incompetence).

To try to repair the damage of delay and expedite regulations, the DEP recently publicly announced that they would propose & adopt what are known as “emergency regulations”.

I wrote to explain why this is a very bad idea, see:

• Murphy DEP Is Grossly Politicizing The Rulemaking Process

• Murphy DEP Is Sabotaging Their Own Flood Rule

• Murphy DEP Commissioner LaTourette Warned: Do NOT Propose Climate PACT Regulations As “Emergency Rules”

Despite this pending regulatory train wreck, NJ environmental groups have mounted a campaign urging the Gov. and DEP to propose fatally flawed emergency rules. On June 21 NJ climate activists wrote a letter to Gov. Murphy demanding that DEP propose emergency rules. Today, I received an “Action Alert” from the NJ Highlands Coalition and NJ LCV:

We are calling on citizens like you to urge Governor Murphy and DEP Commissioner Shawn LaTourette to adopt the new emergency stormwater and flood hazard area rules to protect our life and property.  Please link below to the NJ League of Conservation Voters’ take action tool to communicate your concerns to the Governor and the Commissioner.

In hopes of averting this disaster, today, I wrote them a similar warning that I gave to DEP Commissioner LaTourette (with copies to Senators Smith and Greenstein and NJ media):

Folks – I’ve received your several action alerts urging adoption of DEP emergency rules (PACT/land use).

I think you are making a serious mistake and strongly urge you to reconsider.

While we do have a “climate emergency”, we do not have an “emergency” as defined under the governing law, the NJ Administrative Procedure Act.

The business community has already laid the foundation for both a successful lawsuit (on procedural grounds) and will use those procedural arguments in support of a legislative veto.

If the emergency rules are litigated (which they certainly will be) and then struck down (which they likely will be because Courts don’t defer to agency expertise on procedural issues), it will set back DEP rulemaking by several more years.

FYI, I wrote DEP Commissioner LaTourette to urge him not to propose these rules as “emergency rules”, see:

Murphy DEP Commissioner LaTourette Warned: Do NOT Propose Climate PACT Regulations As “Emergency Rules”

http://www.wolfenotes.com/2022/06/murphy-dep-commissioner-latourette-warned-do-not-propose-climate-pact-regulations-as-emergency-rules/

Have you a legal opinion from a competent lawyer to support your position?

Wolfe

[End Note: This passage from the ENGO June 21 letter to Gov. Murphy was such craven bullshit it almost made me puke:

We wish to commend the work of the New Jersey Department of Environmental Protection, NJDEP Commissioner Shawn LaTourette and countless NJDEP staff on this initiative. It is to their credit that the proposed emergency rules were strengthened in the immediate wake of Hurricane Ida early last fall (following on the heels of damage from Tropical Storms Henri and Elsa last summer) to reflect this new normal in inland flooding across the state.

I’d bet that Ed Potosnak of NJ LCV wrote that.~~~ end]

Screening and Mapping Are Not Regulation And Will Not Reduce Risks Or Pollution

DEP Playing A Sophisticated Game Of Bait and Switch

I have long been a harsh critic of the NJ EJ law, but have not yet digested the Murphy DEP’s proposed environmental justice regulatory proposal.

And today I just broadened the analysis by opening the DEP’s proposed EJ Technical Guidance Document.

It could be the most misleading document DEP ever issued. A repeat performance for DEP Commissioner LaTourette.

First of all, it is a “Guidance Document”. A Guidance Document is not a regulation and is not enforceable.

Here is how DEP describes the Guidance Document and its relationship to the EJ rules:

DEP fails to note that a Guidance Document is not legally enforceable. This means that everything in it is simply window dressing aspiration.

The DEP dishonestly skirts this issue by referring readers to the DEP proposed EJ regulation:

But the general public is very unlikely to grasp the real world significance of the regulatory distinctions in this sentence, i.e. that the law and DEP regulations, and thus the protections for the public, are limited to “facilities seeking permits or permit renewals” and to “their potential contributions”.

And, of course, DEP misleading omits mention of a HUGE loophole: the fact that the EJ law would allow DEP to waive the permit denial or permit condition requirements of the bill – regardless of public health or environmental impacts – if DEP finds that the project/permit in question would satisfy a “compelling public interest”, i.e. based on a DEP finding that the “facility will serve a compelling public interest in the community where it is to be located”

Second, the substance of the Guidance Document is FAR broader than the actual environmental justice law and DEP’s proposed EJ regulations.

DEP can not regulate any facility or activity – or the pollution from those activities – that is not included in the EJ law.

There are pollution sources and activities listed in the Guidance document as stressors that are not regulated by the EJ law and DEP regulations.

DEP can only regulate pollution emitted by facilities regulated under the EJ law and DEP regulation (i.e. facilities seeking permits or permit renewals).

DEP can only regulate the “stressor” or pollution “contribution” made by a regulated facility (i.e.their potential contributions” ). DEP may not regulate the far larger burden from all the stressors and pollution sources identified in the Guidance Document.

DEP does not explain this fundamental flaw to the public.

The effect of these two DEP misleading descriptions is to greatly exaggerate the scope and effectiveness of the EJ regulations.

Let me offer just one illustration:

The Guidance Document defines “Environmental or public health stressors” on page 4. The list of “stressors” includes “contaminated sites”.

However, the Environmental Justice law explicitly exempts contaminated sites from the DEP EJ permit program! (here’s the exemption, in the definition of “permit” (see page 4):

except that “permit” shall not include any  authorization or approval necessary to perform a remediation, as defined pursuant to section 23 of P.L.1993, c.139 (C.58:10B-1)

So, there are significant“Environmental or public health stressors” that are not regulated and that DEP may not mandate pollution reductions from these sites or facilities.

The same reality applies to “concentrated areas of pollution” and “mobile sources of air pollution” which DEP defines as “Environmental or public health stressors” – including urban heat island effects – or the risks from hazardous air pollutants.

Let me offer a simple hypothetical: suppose a new garbage transfer station were proposed in Newark. If the permit applicant conducted the stressors analysis in the DEP Guidance Document and found that his truck emissions would contribute to unacceptable ground level ozone pollution, DEP could NOT then ratchet down on air permits to reduce pollution from other sources that contribute to the unacceptable condition, like the Newark garbage incinerator.

Another example of this is the recent controversy of Amazon at Newark Airport.

Local EJ activists just declared victory there, see:

• Newark Airport’s neighbors want a voice in what’s next now that Amazon is not building a hub there

“The PANYNJ should meet with the Goods Jobs Clean Air NJ Coalition which Clean Water Action co-leads before they start bidding again and negotiating,” said Amy Goldsmith, Clean Water Action state director. “They should better understand our concerns, what we want and discuss how best to achieve them. In some cases, it is the PANYNJ’s responsibility and in other cases the entity that leases the property.”

But the media failed to report – and the EJ activists again have failed to mention – that the pollution and noise from the Newark Airport and the proposed Amazon facility are not regulated by the EJ law or DEP’s regulations!

Similar basic regulatory misunderstanding have emerged in activism and the media coverage of the proposed PVSC gas plant.

More to follow on both the EJ rule proposal and the Guidance Document.

Forestry Task Force Follies

My NJ friends are having quiet private debates about a whole set of predicted problems they’ve been having with Senator Smith’s Forestry Task Force.

I was highly skeptical from the outset of that initiative, but I gave it a good faith chance and quickly confirmed my suspicions.

I resigned in protest after the Task Force not only failed to even consider my policy proposal, and instead then shut down discussion and issued a gag order (no press, no blogging).

The latest troubles some Task Force folks are wrestling with involve the ambiguity and lack of science, methods, and objective enforceable standards to implement (i.e. define, measure, monitor, and assess) the vague but good feeling concept of “stewardship”.

So, I thought folks might benefit from a NJ Field Guide to the term – here ya go!

Some NJ manifestations of “stewardship” (only a small sampling)

1. NJ Audubon has a “Corporate Stewardship Council” and their current “CEO” is a former Exxon “scientist”:

• NJ Audubon Hires Former Exxon-Mobil Hack As Head Of “Stewardship”

(John Cecil, the former head of NJ Audubon’s Corporate Stewardship Council, who led NJ Statewide efforts in cooperation with DEP to log NJ forests, is now Assistant Commissioner at DEP with jurisdiction over State Parks and Forests. He was provided a platform and made a 30 minute presentation to the Forestry Task Force’s kickoff meeting. Eileen Murphy, the former head of DEP’s Office of Science and Research, who has no academic background or experience in forestry, is now head lobbyist at NJ Audubon and a Co-Chair of Senator Smith’s Task Force. The terms “Regulatory capture” and “revolving door” and “self dealing” hardly begin to capture the corruption.)

2. NJ environmental groups tout their favorable relationships with power companies, who they claim practice “stewardship”:

• It’s The Pinelands PROTECTION Act, Not The Corporate Stewardship and Mitigation Act

3. Stewardship also has invaded and compromised the DEP’s Clean Water Act programs, diverted activists, and provided green cover:

• Murphy DEP Embraces Christie DEP “Stewardship” Spin On Voluntary Watershed Partnership Programs

4. Take a look at the practices that are  reviewed and approved of as “stewardship” (reader warning: graphic content!)

• Pinelands Forest Stewardship

5. Even Gov. Christie vetoed Senator Smith’s “stewardship” bill, which was a form of privatization:

• The DEP Sparta Mountain “Stewardship” Plan Contradicts Governor Christie’s Veto of “Forest Stewardship” Legislation

6. “Young forests”, “healthy forests”, “habitat creation and restoration”, “seed tree treatments”, and “sustainable forestry practices” are all forms of “stewardship”. Take a look: (reader warning: graphic content)

• Take A Look At DEP & Audubon “Forest Stewardship” On Sparta Mountain

7.  This one explains itself in the title and needs no introduction:

• Calling Bullshit On NJ Audubon’s “Forest Stewardship”

8. DEP implements “stewardship” broadly and externally, and not only in forestry programs. The term is abused by the same self serving people (Catania/Duke) who form what I call NJ’s “Green Mafia” (reader warning: graphic content):

• Christie DEP Granted A Stewardship Award To This Site

9. “Stewardship” is expansive – it even justifies the Neoliberal model: individual lifestyles, more consumption, market practices, voluntary local efforts:

• “Small Effortless Changes” – The New Model Of Individual Environmental Entrepreneurism and Sustainable Stewardship

10. “Stewardship” includes even road construction (more graphic content):

• Open Space Bill Would Fund “Improvements” and “Stewardship” Projects – Like These Abuses

11. The current DEP forestry policies, plans, regulations, and programs are based on “stewardship”, but ignore climate.

Ironically, for the administration of a former Wall Streeter, the DEP even ignores their own findings about the economic value of preserving NJ’s forests::

• Murphy DEP “Forest Action Plan” Sparks Controversy Over Conflicts With Climate Goals And Logging State Lands

I hope you all have a good day, now that you’ve seen real NJ “stewardship”!

Wolfe

[End Note: If you’ve gotten this far, and hit all the links and read all those illustrations, you probably know this for sure, but, because I’m just now reading this and enjoy her writing, I’ll include this as a pithy end note anyway:

Propaganda and other forms of narrative control are used to manufacture consent for status quo models of governance, economic and monetary systems, and foreign policy which benefit an elite few at the expense of the general population. ~~~ Caitlin Johnstone

Entities in the narrative world which threaten imperial narrative domination are attacked, smeared, marginalized and censored. ~~~ The Real World And The Narrative World

While the […] clerks in mainstream media keep their heads down, and their mouths closed while cashing their checks, independent media take principled stands in favor of free expression, and people admire these stands. They are, after all admirable. ~~~ Patrick Lawrence

After denying most of the request, DEP partially responded today to my OPRA request for DEP “enforcement documents” against Ford Motor Company for years of illegal dumping of hazardous wastes (including fines and penalties issued and collected).

As I suspected, DEP documents reveal that DEP never issued a single fine or penalty against Ford for illegal disposal of hazardous wastes for decades, actions that DEP described thusly:

Repeat: DEP never fined Ford Motor Company. Not once. DEP never collected a single penny in enforcement fines.

DEP failed to take enforcement action (i.e. enforcement is defined as DEP actions to issue fines and collect penalties for violations of environmental laws) despite being legally authorized to issue enforcement fines of $50,000 per day, and after having repeatedly threatened to do so.

What DEP considers “enforcement” is limited to requiring Ford to pay their salaries and pay for the cost of cleanup and pay DEP for the costs they incurred in cleaning up Ford’s mess (including DEP staff salaries).

DEP does not make polluters pay fines for violating environmental laws – like illegal disposal of hazardous wastes – even for knowing and egregious violations of environmental laws that should be criminally prosecuted.

To be clear, DEP provided 5 documents in response to my OPRA request, as follows (I am glad to provide them via email to anyone interested in these documents):

1) An October 31, 2005 “Directive” (Happy Halloween!)

After making findings of egregious Ford violations and foot dragging, this Directive merely required Ford to pay $500,000 to DEP for DEP to “conduct a limited paint sludge removal actions” (sic).

To be clear: this money was NOT an enforcement fine for violating environmental laws. It was only to pay DEP to conduct a limited cleanup.

Paragraph #16 of this Directive threatened to impose “treble damages” (i.e. DEP would assume control of the cleanup and make Ford pay 3 TIMES DEP’s cleanup costs), if Ford did not comply, but DEP never delivered on this threat, despite years of noncompliance by Ford.

Paragraph #17 of this Directive threatened to issue $50,000 per day penalties, but DEP never delivered on this idle threat.

2. A May 30, 2007 “Directive”

Outrageously, this Directive treated the Borough of Ringwood exactly the same as the “reckless” “wanton” corporate polluter Ford Motor Company – naming both legally “strictly liable” as “responsible parties” for all “cleanup and removal costs”.

Incredibly, the Directive went even further. DEP included a paragraph that made it appear that the Borough – not DEP – was neglecting its responsibility:

8. The Borough of Ringwood is responsible for the safety of the residents of the Upper Ringwood community.

The Directive merely ordered Ford AND Ringwood Borough to conduct additional studies.

It repeated the idle threats to assume the cleanup and collect “treble damages” and to impose $50,000 per day fines.

No fines issued, no penalties assessed or collected.

3. A June 4, 2008 Letter

Again, Ford and the Borough are treated the same. This letter was DEP’s

“formal notice that the Department has determined that Borough of Ringwood and Ford Motor Company are required to remove and properly dispose of all solid waste which has been excavated from the site and segregated in the SR6 area, to an approved/permitted disposal facility.”

Again keeping their powder dry, the DEP reserved its “enforcement powers”.

4. An October 1, 2014 EPA “Administrative Order On Consent”

DEP is not a party to this EPA Superfund Action, so I don’t know why DEP provided it as a response to my OPRA, which was limited to DEP documents.

But I will note that it too – like the DEP Directives – also does not impose fines and penalties for illegal dumping of hazardous waste.

It merely collects funds for cleanup costs and threatens to impose “stipulated penalties (from $500 – $4,500 per day) for violations of the Consent Order – not for the underlying egregious “reckless” “wanton” years long violations of environmental laws that poisoned the people and environment of NJ.

Regardless, NJ DEP has gone alone with virtually all the bad EPA decisions at this site, and has completely failed to enforce independent stand alone NJ State environmental laws to protect the people and environment of NJ. That failure applies to EPA cleanup and enforcement decisions.

5. An August 5, 2020 Judicial Consent Decree

DEP is a party to this Civil Action – along with Ford and the federal government.

The consent decree is limited to aspects of the site:

CONSENT DECREE FOR REMEDIAL ACTION FOR OPERABLE UNIT 2 RINGWOOD MINES/LANDFILL SUPERFUND SITE

Like prior DEP Directives, it imposes no fines and penalties for violations of environmental laws.

It is limited to requiring Ford to pay for cleanup costs.

Ford is not required to suffer any punitive actions for their illegal activities – in fact, DEP and EPA even provide a “covenant not to sue” if Ford complies with the consent decree.

This is the way the DEP (and EPA) toxic site cleanup programs operate.

Polluters are never punished for their illegal disposal actions, but merely required to “cleanup” (partially) some of the mess they made.

Sometimes, in a handful of egregious cases, they also are required to pay a few pennies on the dollar for the damage to natural resources they caused.

Yet no one in the environmental community – or the media – seems to be aware of or even mention this egregiously pro-corporate policy, never mind oppose it or try to reform it.

[End Note: Of course, you will not read any of this in mainstream press, or even the “alternative press” like NJ Spotlight. Which leads me to this little gem of an explanation by Patrick Lawrence: (insert any media outlet of your choosing in the [bracketed blanks])

[…..] other sponsors (and for that matter the Democracy Fund’s) are comprised of the sorts of foundations that support NPR, PBS, and other such media. Anyone who assumes media institutions taking money from such sponsors are authentically independent does not understand philanthropy as a well-established conduit through which orthodoxies are enforced.