“Woke” DEP Permit Promotes “Climate Resilience”, “Environmental Justice”, And “Renewable Energy” Mandates
As Trump Seeks To Claw Back $20 Billion In Clean Energy Funds, Millions Of Federal Dollars Are Allocated To Build A Power Plant That DEP Permit Prohibits From Operating
DEP Permit Conflicts With Multiple Trump Executive Orders, A Federal Court Decision, And Is Red Meat For The Trump Crowd
I can guarantee that if the Trump political people are made aware of the recent NJ DEP Clean Air Act Title V permit issued to the Passaic Valley Sewerage Commission (PVSC) to build a $200 million federally funded back up fossil power plant, that they will kill it.
DOA, for sure.
Let me explain.
I wrote about that permit two weeks ago, see:
The DEP permit is issued under the federal Clean Air Act. Accordingly, the US EPA must review and approve it.
Trump’s EPA Region 2 Office is currently reviewing the DEP permit. That review is now underway under a 45 day clock.
EPA Region 2 approval of this permit would establish national precedents under the Clean Air Act for several highly controversial issues, all of which conflict with Trump Executive Orders.
These controversial national precedents include:
- State imposed requirements for an “environmental justice” impact review procedure and inclusion of permit conditions to mitigate EJ impacts;
- State imposed mandatory permit conditions that require installation of renewable energy technology (solar and battery storage) in a federal permit based upon State imposed environmental justice permit review procedures and permit conditions;
- State violations of due process requirements protected under federal and State Administrative Procedure Acts (i.e. State imposed regulatory mandates based upon a unilateral State agency Administrative Order by the DEP Commissioner, an Order issued AFTER permit submission and DEP determination of completeness).
The NJ DEP imposed the permit conditions based on an “Administrative Order” issued by the NJ DEP Commissioner. The State regulations do NOT authorize this environmental review or permit conditions. The AO was issued because the permit is exempt from the State environmental justice law and regulations because it was submitted prior to the effective date of the law and regulations.
1. Commissioner LaTourette issued an Administrative Order (AO) AFTER the permit application had been deemed complete.
2. The DEP then relied on the AO to mandate both additional procedural and substantive permit requirements, broader in scope and stringency than current federal EPA and State DEP permit regulations.
3. The procedural and substantive requirements had NO regulatory basis or regulatory authorization.
4. The substantive permit conditions not only were imposed pursuant to the AO and had no regulatory basis, they fit the definition of arbitrary and capricious because there was not even an attempt by DEP to link the permit conditions to any impact mitigation.
I raised all these issues in comments on the draft permit. The NJ DEP response to public comments document admits that the State EJ law and DEP EJ regulations do not apply, but otherwise fails to respond to these accurate criticisms of fatal flaws.
- State imposed permit conditions that severely limit the operating time of a $200 million federally funded power plant. The restrictions are so severe as to effectively preclude the plant from operating to produce power;
- Federal infrastructure funding of a State “climate resilience” project to provide back up power at a sewage treatment plant (this would include EPA sign off and approval of the State’s climate impact risk analysis).
EPA approval would provide an EPA imprimatur on this EPA delegated State Clean Air Act permit for all these issues.
The Trump EPA Region 2 review is constrained by Trump’s Executive Orders on energy policy, climate, DEI, and renewable energy.
The Trump EPA Region 2 review is also constrained by a federal District Court decision in Louisiana that found that Congress did not authorize EPA to implement an environmental justice program under the Clean Air Act, 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.
So, given the multiple controversial and precedent setting legal, policy, financial and ideological issues involved in EPA Region 2 review and approval of this DEP permit, it is highly likely that EPA Region 2 will kill the permit outright or refer it to EPA Washington DC Headquarters for review (where it certainly will be killed).
The NJ climate and environmental justice organizations who strongly opposed this DEP permit are unable and unwilling to make these arguments to EPA. These arguments contradict their long held positions. Making these arguments would force them to admit that their highly touted environmental justice law and DEP regulations are based on magical thinking.
(and why aren’t EJ advocates making the case that the $200 million would be better used on energy efficiency insulating and electrification of thousands of Newark homes?)
They are more concerned with preserving their virtue and rhetoric, than actually winning (and the victory would not be pyrrhic because Trump EPA is already gone).
I am not so constrained.
So, now if the Internets would do their job and the MAGA’s get a hold of this …..