Council Lacks Legislative Authorization
Advisory Role Can Not Reform DEP’s Broken NRD Program
Is It Window Dressing, Gaslighting, Or Lipstick On A Pig?
At a time when people and the Democratic Party are resisting the consolidation and abuse of unilateral executive power and Executive Orders by the incoming Trump administration, it is hypocrisy and worse than tone deaf for DEP Commissioner LaTourette to do the same thing.
Yesterday, DEP issued a Public Notice seeking nominations for members of a new DEP created “Natural Resource Restoration Advisory Council” (NRRAC):
TRENTON – As authorized by Commissioner Shawn M. LaTourette’s Administrative Order No. 2023-08, the New Jersey Department of Environmental Protection is seeking nominations of qualified candidates for consideration as members of the department’s inaugural Natural Resource Restoration Advisory Council. Nominations are due by December 31, 2024.
The “inaugural” NRRAC would have a purely advisory role and provide recommendations to the DEP Commissioner regarding implementation of the DEP’s Natural Resource Damage (NRD) program.
Yesterday, I wrote to provide the context and controversial history of the broken DEP Natural Resource Damage (NRD) program and explain why corporate polluters had crippled it.
Today, I will focus on the NRRAC aspects.
LaTourette’s Order that created the NRRAC was issued last March (2023) at a time when DEP was under severe press and public criticism – including by local officials – for a sweetheart NRD deal at the notorious Toms River childhood cancer cluster Ciba Geigy toxic site, now under control of the corporate chemical manufacturer BASF, see:
Local government in Toms River and the people impacted by the toxic pollution blasted DEP for negotiating a sell out deal behind their backs. They also had no role in the DEP approved “restoration plan” they were forced to live with.
So, LaTourette’ Order was a response to that BASF criticism and was intended as a concession to critics.
Additionally, as part of the outrage to the corrupt Christie DEP Exxon Settlement and diversion of NRD settlement monies, NJ voters amended the Constitution in 2017 to Constitutionally dedicate NRD recovery funds and mandate that they be used locally: (DEP fact sheet)
Article VIII, Section II, paragraph 9 of the New Jersey Constitution, effective December 7, 2017, mandates that revenue from settlements and awards related to natural resource damages, collected due to environmental contamination, be credited annually to a special account in the General Fund. These funds are specifically dedicated to repairing, restoring, or replacing damaged natural resources, as well as covering legal expenses and costs associated with pursuing such claims. The use of these funds is prioritized to first address damages in the area where they occurred. If no local project is available, the funds are then directed within the same water region, and finally, statewide if necessary.
Note that the Constitutional amendment did NOT authorize or create the NRRAC.
In response to this Constitutional amendment’s prioritization of local restoration uses of NRD settlements, the NRRAC was intended to reform fatal flaws in DEP’s NRD program by providing a very limited role for the public in crafting restoration policies and program content, including identifying needed restoration projects.
But the NRRAC would have NO ROLE in the science, policy, or law of DEP’s NRD litigation strategy or NRD settlement negations, including any role in suggesting ways to enforce science based NRD standards or quantification methodologies.
But aside from this limited role, and the fact that the NRRAC was created as a political concession to DEP’s critics, consider that LaTourette’s Order was issued last March, 2023.
The chronology prompts additional questions, including:
Why did the Legislature fail to enact implementing legislation for the 2017 Constitutional amendment?
Why did it take over 6 years after the Constitutional Amendment for LaTourette to issue his Order?
Why did it take almost 2 YEARS after LaTourette issued his ORDER creating the NRRRAC to seek members for the NRRAC?
These delays certainly expose the Murphy DEP’s lack of serious commitment to reforming the NRD program.
Instead, what we have here is another public relations move by a cynical and manipulative gaslighting DEP Commissioner.
Additionally, the terms of the LaTourette Order itself explicitly gut any meaningful role for the NRRAC.
First of all, in paragraph 15, DEP arrogantly and expressly reserves the right to ignore the NRRAC.
Second, in paragraph 16, the NRRAC’s work is prospective, and can not influence any NRD cases in the pipeline. Most of the viable NRD cases have already been filed – some many years ago – therefore there will be very little new restoration work.
Third, in paragraph 17, DEP guts the scientific or legal content of any NRRAC recommendation.
Finally, the DEP is served by 48 external “Boards, Councils and Commissions”. The only one I know of that was created unilaterally by DEP Administrative Order is the Science Advisory Board. Virtually all the rest were created and authorized by Legislation.
At a time when people and the Democratic Party are resisting the consolidation and abuse of unilateral executive power and Executive Orders by the incoming Trump administration, it is hypocrisy and worse than tone deaf for DEP Commissioner LaTourette to do the same thing.
So, once again, Murphy DEP Commissioner LaTourette has engaged in promotion of toothless and ineffective public relations stunts, instead of substantive regulatory reform of DEP and DEP regulatory programs.
This particular failure to reform the NRD program by adopting implementing regulations DEP legally pledged to adopt exactly 20 years ago in a judicial settlement agreement of the SEED case is egregious and unforgivable.
Given that Commissioner LaTourette, prior to joining DEP, represented and filed legal briefs on behalf of corporate polluters that defeated DEP’s attempts to recover NRD damages borders on misconduct, corruption, or worse.
But, no doubt that LaTourette will receive praise by the typical suspects – the NRRAC will include a “environmental justice representative! whoo-hoo! – and a media that is incapable of writing a policy story.