DEP Makes A Mockery Of NJ Environmental Justice And Climate Laws
- Trump EPA Likely To Kill DEP’s Flawed “Environmental Justice” And “Renewable Energy” Clean Air Act Permit
On a late Friday afternoon before a long holiday weekend, the Murphy DEP issued an air pollution permit to the controversial Passaic Valley Sewerage Commission’s fossil gas power plant in Newark (read the permit document and DEP response to public comments).
The permit was strongly opposed by the Newark community and statewide environmental justice and climate activists.
I outlined the issues when DEP issued the draft permit for public comment last October, see:
Opponents have 45 days to appeal the permit to US EPA Region 2.
[Procedural Note: to clarify the confusing guidance DEP provided: EPA has 45 days to review the DEP permit. The public can submit comments to EPA during this time. If EPA does not kill the DEP permit, then the public can petition EPA, see:
(d) Public petitions to the Administrator. The program shall provide that, if the Administrator does not object in writing under paragraph (c) of this section, any person may petition the Administrator within 60 days after the expiration of the Administrator’s 45-day review period to make such objection.
I submitted comments on the draft permit that identified fatal legal flaws.
3. COMMENT: The draft permit is fatally flawed. An Administrative Order (AO) of the Commissioner may not establish substantive binding regulatory requirements. An AO is only binding on Department employees in their administrative functions. Binding substantive regulatory requirements can only be imposed pursuant to rulemaking, as authorized by the legislature. (Written: Bill Wolfe)
My comments were intended to force DEP to withdraw the permit and thereby force PVSC to go back to square one and submit a new permit application for review under the new DEP “environmental justice” regulations.
COMMENT: The PVSC permit application was submitted and deemed administratively complete before the adoption of the EJ Rule. The Department may not retroactively impose regulatory requirements. In this case, PVSC’s permit was submitted before the EJ Rules were on the books. The Department should withdraw the draft permit and reconsider a new permit application with EJ Rules in place. (Written: Bill Wolfe)
But DEP plowed ahead and issued the permit anyway.
So, I will raise those same fatal legal flaws to US EPA Region 2.
COMMENT: The NJ APCA does not authorize the Department to base permit conditions on EJ reviews or EJ issues, including location in a designated EJ community or the presence of disparate impacts. The regulations adopted by the Department to implement New Jersey’s APCA do not authorize the Department to consider and base permit conditions on EJ issues. The EJ conditions were state-only applicable requirements; thus, the basis for the conditions appears to be State law. However, the state-only conditions impact a Federal permit subject to EPA review and approval pursuant to the CAA. It appears Federal and State law are implicated. (Written: Bill Wolfe)
In addition to fatal legal flaws, the DEP permit raises nationally controversial issues, including “environmental justice” and mandatory permit conditions that require the installation of renewable energy (solar and battery storage) as a condition of receiving a federal Clean Air Act permit.
COMMENT: A Federal court has recently struck down EPA’s authority to consider disparate impacts and cumulative impacts in EPA permits, finding that Congress did not provide that authority (see: U.S. District Court Judge Cain, Judgment pursuant to the ruling in State of Louisiana v. EPA, No. 2:23-cv-00692, W.D. La. Jan. 23, 2024, Aug. 22, 2024). Additionally, there are other Title VI cases out of New Jersey that make it virtually impossible to litigate the issue of whether the issuance of a draft permit violates the Civil Rights Act. For example, the Third Circuit Court’s holding, in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771 (3d Cir. 2001)
https://www.gibbonslaw.com/resources/publications/third-circuit-closes-seconddoor-on-plaintiffs-in-south-camden-environmental-justice-case-05-02-2002 (Written: Bill Wolfe)
I obviously do NOT support the policy of these comments, I am only making them to force EPA to kill the permit and send PVSC back to square one and force them to comply with NJ’s EJ law and DEP EJ regulations.
Those issues also are caught up in the various Trump EPA Executive Orders that rescind various environmental justice policies and mandate rollbacks of many EPA regulations, see:
Basically, my objective is to inject sufficient fear in the hearts of EPA Region 2 bureaucrats that they refer the decision to EPA Washington DC HQ.
Surely, the Trump EPA hacks will kill it if they learn that it involves “environmental justice” and renewable energy mandates – both national precedents that conflict with the Trump agenda.
I’ll do a follow-up post with the specifics when I draft my EPA review petition.
Policy wonks can review the DEP response to comments document, where I raised these issues.