DEP Falsely Implies Environmental Justice Law Applies To The Power Plant
DEP Falsely Claims The Power Plant Project Is A Local Issue
During a very friendly NJ Spotlight TeeVee news interview (David Cruz’s “Chat Box”),Murphy DEP Commissioner LaTourette misled the public about two key issues regarding the proposed Passaic Valley Sewerage Commission’s back-up fossil power plant (the discussion on PVSC starts at time 9:20).
In fact, the interview was so friendly and pro-DEP, that at one point Cruz interjected to “disclose” his personal interest and make a disclaimer that he was “not speaking for DEP”.
Let me highlight just 2 issues where Commissioner LaTourette misled people and effectively lied (by omission)
1) The PVSC Proposed Back Up Power Plant Is NOT a “Local Issue”
First of all, in a blatant attempt to evade his responsibility, Commissioner LaTourette pointed the finger at PVSC and falsely claimed that the project was a local issue: (time 10:25)
There is only one entity that will decide if that project moves forward – that entity is the Passaic Valley Sewage Commission. … The 48 municipalities that make up PVSC, they’ll decide whether or not they wish for the DEP to continue to evaluating the permit that has been put before the Department. ….. What is important is that we understand that this is a decision that is locally made.
I call complete Bullshit on that.
DEP has direct and comprehensive statutory and regulatory supervision, oversight, and final binding legal power over virtually all facets of the PVSC’s operations.
In fact, the PVSC proposed back up power plant is designed to comply with DEP’s own regulatory mandates under the Clean Water Act’s NPDES permit program.
Specifically, NJ DEP regulations require that PVSC have and Operations and Maintenance Plan, an Emergency Plan, a “vulnerability analysis”, and a backup power source to respond to emergencies, including storms and floods: (see: NJAC 7:14A-6.12 Operation, Maintenance and Emergency Conditions)
The DEP also has additional broad statutory and regulatory authority over the design, construction, and operation of the proposed power plant under DEP’s clean air act permitting program. (see NJAC 7: 27)
The PVSC power plant can not be planned, financed, engineered, built, or operated without multiple DEP explicit approvals.
This is NOT a local issue and Commissioner LaTourette, as a licensed lawyer, know that and so should be ashamed of his gaslighting.
2) The “Historic” Environmental Justice Law Does NOT Even Apply To The PVSC Proposed Power Plant
Commissioner LaTourette made this highly misleading and partially false statement (time 11:30)
There is one thing that you can be absolutely certain of, is that I will apply …. the spirit and intent of the environmental justice law. That means that any environmental permit can not allow any disproportionate impacts upon this already overburdened community.
LaTourette is a lawyer so he knows there is a huge difference between the “spirit and intent” of a law and whether the law actually applies to an activity, sets standards, and authorizes DEP to regulate that activity.
Notice that he did not say he would apply or enforce “the letter of the law”.
The “spirit and intent” of the EJ law does not give DEP authority to regulate the PVSC power plant under that EJ law.
The “spirit and intent” of the EJ law does not give DEP authority to regulate to prevent “disproportionate impacts” – and LaTourette knows that.
As I’ve written here many times, for several reasons, the Environmental Justice law does not apply to the PVSC permit applications now before DEP, see:
As I more recently wrote, DEP just issued major amendments to the current PVSC air pollution permits and did not apply the environmental justice law to those permits. In fact, DEP took steps to cover up those loopholes and prevent the people of Newark from knowing that, see:
The Associated Press reported on how DEP is evading this issue:
Proposals to build backup power plants for the Passaic Valley Sewerage Commission’s treatment plant in Newark and for NJ Transit, the state transportation agency in nearby Kearny, are also still pending. Both have been hotly opposed by residents of neighboring communities.
The DEP did not respond to questions Monday on whether the environmental justice law will apply to those projects.
Murphy signed the law in September 2020, saying it would give the state the ability to deny permits for polluting projects in communities that already have more than their share.
But the bureaucratic process of writing the actual regulations and conferring with interested parties delayed full implementation of the law until Monday — a fact that has angered residents living nearby.
Who will force DEP to make a statement on the record to clarify this issue?
Commissioner LaTourette should be ashamed – especially as a lawyer – for gaslighting the public on these issues.
[End Notes:
1. This is not the first time DEP misled the people of Newark on the review of this permit or the enforcement of the EJ law, see:
2. In terms of DEP’ power under existing law that does apply (other than the EJ law, which does not apply) the scope of DEP’s power with respect to “disproportionate impacts” under the Clean Air Act and Title VI of the Civil Rights haw has been adjudicated by the federal Circuit Court of Appeals in a Camden case, a decision that reversed a favorable decision by District Court Judge Orlofsky. DEP must show more than “disproportionate impact” – they must prove discriminatory intent. A federal District Court Judge just made the same decision with respect to Title VI (prove discrimination, not just “disparate impact”) and went further to rule that EPA lacked authority from Congress toe even regulate environmental justice:
The Court ruled that EPA’s “disparate impact” and “cumulative impact” regulatory review requirements – the scientific foundations of the EPA’s environmental justice program – were not specifically authorized by Congress. The Court invoked the “Major Questions” doctrine to block EPA’s enforcement of its Environmental Justice program.
3. In terms of DEP’s legal power to apply and enforce a “disproportionate impact” standard, I am not aware of any environmental law, other than the EJ law which does not apply, that authorizes DEP to regulate “disproportionate impacts”.
As I wrote, over 20 years ago, US District Court Judge Orlofsky wrote a scathing opinion that criticized the DEP air permit process and found that it violated the civil rights of the people of Camden, see: South Camden Citizens v. NJ Dept. of Environ., 145 F. Supp. 2d 446 (D.N.J. 2001) (emphases mine):
As described in greater detail in this Court’s Findings of Fact and Conclusions of Law set forth below, the NJDEP granted the necessary air permits to SLC to allow its proposed facility to begin operations. In doing so, the NJDEP considered only whether the facility’s emissions would exceed technical emissions standards for specific pollutants, especially dust. Indeed, much of what this case is about is what the NJDEP failed to consider. It did not consider the level of ozone generated by the truck traffic to and from the SLC facility, notwithstanding the fact that the Waterfront South community is not currently in compliance with the National Ambient Air Quality Standard (“NAAQS”) established by the EPA for ozone levels, nor did it consider the presence of many other pollutants in Waterfront South. It did not consider the pre-existing poor health of the residents of Waterfront South, nor did it consider the cumulative environmental burden already borne by this impoverished community. Finally, and perhaps most importantly, the NJDEP failed to consider the racial and ethnic composition of the population of Waterfront South.
ALL THOSE FAILURES REMAIN.
Nothing has changed in the DEP air permit process since Judge Orlofsky wrote that.
