LaTourette Prevailed As Corporate Lawyer In An NRD Lawsuit With DEP
LaTourette Failed To Disclose Or Recuse On His Essex Chemical NRD Litigation
As DEP Commissioner, He Has Not Reformed Weaknesses He Successfully Exploited
We exposed and broke the story that Murphy DEP Commissioner LaTourette had worked as a corporate lawyer to secure DEP permits for the controversial Gibbstown LNG export project, see the NJ Spotlight story:
LaTourette’s memo lists the matters before the DEP that he worked on while he was an environmental attorney with a Newark law firm immediately before joining DEP in September 2018. Those matters include the Repauno Port and Rail Terminal, a project on which he represented Delaware River Partners on “all remediation and permitting concerns” before the DEP, the Delaware River Basin Commission (DRBC) and two federal agencies, according to the document, which was obtained via an Open Records Act request filed by Bill Wolfe, a former DEP employee.
LaTourette represented not only that LNG project, but numerous other corporate polluters that created conflicts of interest with his work as DEP Commissioner.
While I can’t be absolutely certain, the chronology strongly suggests that it was my filing of an OPRA public records request that triggered an expanded review and update of LaTourette’s original internal DEP ethics disclosure and recusal.
LaTourette was nominated by Gov. Murphy on January 17, 2021. In a January 17, 2021 post, I immediately raised ethics and recusal issues and filed my OPRA request:
Note that the Gov. fails to name LaTourette’s corporate clients or the projects he provided compliance assistance to.
(which raises an important question for the intrepid journalists out there: Did LaTourette name these corporate clients in his ethics disclosure form and has he filed recusals? OPRA is your friend. So is Google of literature on “revolving door” and “corporate capture”. The story writes itself.)
DEP initially denied that OPRA request and delayed response until after LaTourette had updated his disclosure and recusal documents on January 25, 2021.
LaTourette’s original disclosure and recusal memo (dated 9/25/18) failed to mention his work for Essex Chemical. (see Attachment A)
LaTourette followup expanded recusal memo (dated 1/25/21) also failed to mention his work for Essex Chemical. (see Attachment A)
Why would he fail to disclose a huge legal NRD victory he won for Essex Chemical?
So, LaTourette has serious ethics issues that involve what are commonly referred to in the public policy literature as abuses of the public interest that stem from “the revolving door” and “regulatory capture”.
The latest example of these conflicts is the DEP’s proposed legal settlement for “natural resource damages” (NRD) with BASF at the former Ciba Geigy Toms River Superfund site.
Virtually no one is aware of the fact that Commissioner LaTourette – who Gov. Murphy called an “Erin Brockovich” public interest lawyer – previously represented another major corporate polluter (Essex Chemical Corporation, a subsidiary of Dow Chemical) in an NRD case that was litigated.
LaTourette won – his legal work defeated DEP’s legal NRD claim. His work let a corporate polluter off the hook for $8 million of NRD restoration and compensation for toxic pollution of public water supplies, see:
In his current capacity as DEP Commissioner, one would expect that as a public servant, LaTourette would strengthen the DEP’s NRD program and fix the flaws and vulnerabilities that he exploited as a corporate lawyer and develop more effective DEP arguments to respond to the corporate legal strategy he learned as a corporate lawyer.
He apparently has not done so.
LaTourette has been the DEP’s policymaker and spokesperson on the proposed BASF NRD settlement. In that capacity, he manipulated and actively misled the public by making false statements, see:
His prior corporate legal work and lawsuit with the DEP on NRD issues raises legitimate public concerns about potential abuses of the public interest resulting from the “revolving door” and “corporate capture”.
I just asked the NJ State Ethics Commission to review and issue an Advisory Opinion about all that, see the letter below.
This situation exposes gaps in NJ ethics laws and the concepts of “conflicts of interest”. Generally, these laws restrict activity due to pre and post employment that may raise a conflict for a brief period of time, e.g. one or two years. They generally do not apply to motives and interests involved in revolving door and agency capture dynamics.
But in this case, LaTourette’s legal work and Appellate Court decision have implications far beyond that period. Similarly, under the “revolving door” and agency capture theory, LaTourette’s motives and career interests are influenced by future employment prospects that extend far beyond any 1-2 year post employment restrictions.
I doubt the Ethics Commission will accept my request. They are not legally obligated to or to provide a public explanation of their rationale for failure to do so. The Commission operates in a black box.
Dear NJ State Ethics Commission:
I am writing to request your inquiry into an unusual matter that I believe raises serious ethical concerns that are within the jurisdiction of the Commission pursuant to NJ’s New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq. and administrative authority granted by the Governor by Executive Orders 189 (Kean, 1989), 41 (Codey, 2005), 68 (Codey, 2005), 14 (Corzine, 2005), and 64 (Christie, 2011), and 2 (Murphy,2018). .
According to the Commission’s website: (emphases mine):
“The Commission has the power to undertake investigations and hold hearings regarding alleged violations of the Conflicts Law. The Commission also issues advisory opinions concerning whether a given set of facts and circumstances would, in the Commission’s opinion, constitute possible violations of the Conflicts Law or any code, rules or regulations promulgated pursuant thereto.
https://www.nj.gov/ethics/about/
I am writing to request that the Commission either undertake an investigation, hold hearings, and/or issue an advisory opinion regarding a situation that could “constitute possible violations of the Conflicts Law or any code, rules or regulations promulgated pursuant thereto.”
The facts are as follows:
1. Department of Environmental Protection (DEP) Commissioner LaTourette previously served as a private corporate lawyer who, among other things, represented Essex Chemical Corporation (respondent – defendant) in a lawsuit with the DEP involving “natural resource damages”, see:
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).
2. Essex Chemical won that lawsuit. The Court’s 2012 decision had going forward legal, regulatory, policy, and environmental implications that remain of relevance today.
3. In the March 20, 2012 decision, the Appellate Division ruled:
“We are satisfied that there is sufficient credible evidence in the record to support the court’s findings. The court reasonably determined that Chapman’s expert analysis was not credible. We accordingly conclude that the record supports the trial court’s determination that plaintiffs failed to carry their burden of proof on compensatory restoration damages.”
4. Mr. LaTourette is currently the DEP Commissioner with, among other things, policy, management, and final agency decision-making responsibilities over the DEP’s implementation and enforcement of the “natural resource damage” program.
5. The fact that Mr. LaTourette represented private corporate interests in a significant legal dispute and judicial decision adverse to the DEP that still effects DEP’s legal and policy decisions today, may create a reasonable appearance among the public of either a lack of objectivity and/or other potential conflict of interest under NJ ethics laws.
6. The subject litigation provided an opportunity for Mr. LaTourette to gain knowledge of the DEP NRD program that was not otherwise available to the public, including its scientific and legal weaknesses and vulnerabilities to successful challenge by private corporations.
7. As DEP Commissioner, any such knowledge Mr. LaTourette may have gained in that litigation has not been used to strengthen and reform the DEP’s NRD program. For example, the DEP has not adopted formal policies or regulatory methods or standards to reduce or eliminate scientific and legal weaknesses and vulnerabilities to successful challenge by private corporations, which, among other things, determined the outcome in the Essex Chemical case.
8. Similarly, upon his future Departure from DEP and resumption of private corporate practice, such “inside” DEP and Attorney General’s Office knowledge would constitute a valuable “asset” and career benefit to Mr. LaTourette that could be used contrary to the public interest.
This reality and set of incentives may create a reasonable appearance by the public of potential current or future “revolving door” conflicts or divided loyalty abuses today.
9. Similarly, the public may have a reasonable concern regarding Mr. LaTourette’s independence and objectivity, given the “revolving door” concerns, especially in light of his prior successful legal challenge of DEP in the Essex Chemical case.
10. DEP Commissioner LaTourette has made numerous public statements regarding DEP NRD lawsuits and settlements, most recently regarding the controversial DEP proposed settlement with BASF.
11. The public reasonably would assume – if Mr. LaTourette were currently motivated by and acting purely in the public interest – that he would use his prior knowledge of the flaws in DEP’s NRD program that he learned in the Essex Chemical case as a private corporate lawyer to act to specifically to remedy this flaws.
His failure to do so raises a series question. Why not?
LaTourette’s failure to remedy the legal and scientific flaws he exploited as a private corporate lawyer suggests to a reasonable person that he is not acting independently and objectively in the public interest and may be motivated by ethical conflicts.
According, I request that the Ethics Commission either investigate this situation or issue an advisory opinion regarding narrow circumstances, which I frame as:
When a private corporate lawyer is involved in litigation against DEP, and subsequently joins DEP in a policy, management, and/or decision-making role, is that lawyer required to recuse from involvement in the specific DEP NRD program, legal, and strategy issues involved in the prior litigation to avoid a reasonable public appearance of lack of independence or other potential conflict, including potential “revolving door” or “regulatory capture” abuses.
I am available to provide full factual documentation and information in the public record regarding the above claims at your request.
Respectfully,
Bill Wolfe
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