WolfeNotes.com

The Press Used To Seek Government Accountability – They’re Not Even Trying Anymore

Check out this Trenton Times editorial, from back in the day (2011):

EPA should release information on contaminated N.J. sites

“By failing to disclose these hazardous ratings, EPA keeps the public in the dark about risks in their communities and frustrates their efforts to hold polluters and government accountable,” says New Jersey PEER Director Bill Wolfe.

He’s right. And PEER was right to file the suit since it appears that will be the only way to get the information.

Can you even imagine a NJ press outlet today agreeing with me and saying that I’m right?

Believe me, I haven’t changed over time, but have become a pariah.

How about this one, from two years prior, back in 2009. Could you now even imagine a media outlet quoting me criticizing a main stream Obama Democrat?:

Still, critics like Bill Wolfe, the former director of the state PEER group and a columnist for the Newark Star-Ledger, say Jackson has not done enough to regulate greenhouse gases in the state. Wolfe argues that the DEP had the power to curb emissions even before passage of the Global Warming Response Act in 2007. “Although Jackson is touted as a leader on global warming, few realize that she has done nothing to regulate greenhouse gas emissions as NJ DEP Commissioner, despite having existing regulatory authority to do so,” wrote Wolfe in a recent column. “The Jackson record amounts to the same as the Bush policy — no regulation, no action, no reductions.”

Here is DEP’s own regulatory statements about DEP authority to regulate greenhouse gas emissions. As I wrote, DEP has since taken down the link, but buried on page 4 of Appendix 3: New Jersey Accomplishments and On-going Efforts with Respect to Greenhouse Gas Legislation, Regulations, Policies and Programs DEP wrote:

“CO2 as a Pollutant

“In November 2005, New Jersey adopted a new regulation under the authority of New Jersey’s Air Pollution Control Act to classify CO2 as an air contaminant. This rule enables the State to implement its responsibilities under the RGGI (discussed in greater detail below) and to enact additional rules to reduce CO2 emissions from other sectors as necessary. It also sends a powerful message in light of the federal government’s failure to regulate CO2 under its existing Clean Air Act Authority. New Jersey also added CO2 as an air pollutant in its emission statement program requirements. The emission statement program require the annual reporting of actual emissions of about 50 air contaminants by approximately 700 of the largest stationary sources of air pollution in New Jersey.” (page 100)

Or consider this one, criticizing Cory Booker as US Senator:

Count Bill Wolfe, director of New Jersey Public Employees for Environmental Responsibility, as one of Booker’s immediate critics.

“Let’s just say Booker is no Frank Lautenberg on environmental issues,” said Wolfe by email. “He’s got lots of the buzzwords ‘sustainability’ and ‘environmental justice’ and ‘green jobs,’ but on the regulatory side, [he] did nothing to block the re-issuance of a garbage incinerator permit when that facility should have been shut down.” …

But that incinerator should have been closed for good, said Wolfe. “The retrofit with scrubbers was a band-aid.”

According to Wolfe, Booker has allowed Gov. Christie and corporate redevelopers to have their way with Newark without standing up much to either.

“Frank was a leader,” said Wolfe, “Booker not so much.”

Or how about this ABC TV News expose, slamming the deregulatory policies of NJ Gov. Christie:

“You’ve got safety risks posed because there’s lax government oversight and there’s this profit motive to drive the facility and maximize its profit and that kind of scenario leads to unacceptable risks,” said Bill Wolfe from the NJ Public Employees for Environmental Responsibility.

Environmentalist Bill Wolfe spent 13 years with New Jersey’s Department of Environmental Protection. He says the massive spill in the gulf occurred because BP cut corners on safety while the regulators looked the other way. Wolfe says Governor Christie is making the same mistake by issuing executive orders that call for immediate relief from “regulatory burdens” and “waivers” from regulations.

Bill Wolfe: “This executive order will put into force of law, the exact same policies that led to the disaster in the Gulf.”

Eyewitness News Reporter Jim Hoffer: “You’re saying that this executive order will bring the polluters and government to an even cozier kind of relationship?”

Wolfe: “Right, it will make government facilitate, not regulate, but actually promote the interest of the polluters, protect the polluters, not the people of the state.”

How about this vindication, by the Bergen Record editorial Board:

My claim was validated by a killer 4/25/10 Bergen Record story and an April 30, 2010 highly critical editorial titled “Cleaner Water”. The Bergen Record editorial hammered Christie DEP Commissioner Bob Martin’s blatant lie:

Cleaner water 

… [DEP Commissioner] Martin’s new opinion came about after he was embarrassed publicly. The Public Employees for Environmental Responsibility released e-mails sent to Martin from the EPA that made clear that even if the agency imposed a limit, 6 1/2 years could elapse before the rule was in place, Staff Writer James O’Neill reported. Martin would have been playing Russian roulette with the public’s health.

Let that sink in: the Bergen Record editorial board [correctly] accused the Christie DEP of “playing Russian roulette with the public’s health”. (but “embarrassed publicly” is a pretty lame dodge instead of calling out DEP Commissioner Martin’s’ blatant lie.)

You don’t see any of this anymore.

Why is that?

[Update – A reader just emailed me to suggest that I give up on legacy media and post to X. Hahahaha! Elon and X already shadow banned me!

Princeton Professor’s Work Used To Support Climate Rollback Bill

Junk Modeling At Princeton

We Go Down The Modeling Rabbit Hole

There is consensus that in order to make the transition to “clean” (renewable) energy, that major investments and upgrades to the electric transmission grid are required. There also is widespread agreement that there needs to be changes to federal approvals and permitting to resolve a huge backlog of solar and wind projects seeking to connect to the grid. Climate scientists, policy experts, and activists (with whom I agree) also demand an end to fossil fuel extraction (“keep it in the ground”).

But the powerful Big Oil, Gas, and Coal lobby, who have long successfully opposed any restrictions on their fossil production and profits, is now holding legitimate grid modernization and renewable energy transition reforms hostage to guarantees to promote even more fossil fuels extraction and infrastructure. They also are seeking to dismantle existing environmental protections.

Corporate Big fossil are doing that by demanding that any federal “reform” legislation that addresses grid modernization and renewables also include fossil promotion and deregulation. That is the insane game they are playing and their well funded puppets in Congress are going along.

But if you read yesterday’s NJ Spotlight story on pending federal legislation purported to “reform” energy permitting, modernize the electric grid, and accelerate the clean energy transition, you might think that the legislation is “bipartisan” (a term used in the story’s headline) and – wait for it – would REDUCE both energy prices and greenhouse gas emissions (emphases mine):

If a bipartisan bill pending in the Senate becomes law, it could lead to lower electricity prices for the public, including customers in New Jersey. […]

Overall, the bill, due to its sections about transmission, would result in cuts in greenhouse gas emissions, according to modeling researchers, including Jesse Jenkins at Princeton University, released last month.

My jaw dropped when I read those claims, because if you simply listen to the Senate hearing you learn that Democratic Senators Wyden and Sanders strongly opposed the bill in Committee.

Senator Wyden denounced the bill and sought amendments to block oil and gas drilling off the west coast. His amendment failed. Senator Sanders blasted the bill by stating that the LNG provisions alone would increase greenhouse gas emissions by the equivalent of 165 coal power plants. He proposed an amendment to delete the LNG section. It too failed.

Senator King (I – Maine) sought an amendment to block oil and gas development off the New England coast. It failed too.

Over 360 environmental and climate groups vigorously oppose the bill.

The environmentalists wrote: (read the whole thing – boldface in original)

On behalf of over 360 organizations, representing millions of members and supporters, we write to express our opposition to the Energy Permitting Reform Act of 2024 (S. 4753). This legislation guts bedrock environmental protections, endangers public health, opens up tens of millions of acres of public lands and hundreds of millions of acres of offshore waters to further oil and gas leasing, gives public lands to mining companies, and would defacto rubberstamp gas export projects that harm frontline communities and perpetuate the climate crisis.

These groups have issued multiple press releases documenting the flaws in the bill, see:

• 360+ Climate & Environmental Organizations Urge Senate to Reject Dirty Permitting Deal
• The Dirty Details on Mining in the Energy Permitting Reform Act
• The Energy Permitting Reform Act: A Zombie Bill Prioritizing Polluters Over Communities

Senator Joe Manchin and his Big Oil, Coal, and Gas promoting Republican colleagues are the only ones who call this legislation “bipartisan”. If you listen to the Senate hearing on the bill, Wyoming Republican Sen. John Barrasso blasts the Biden administration’s energy and climate policies, including efforts to “pause” oil, coal, and gas drilling and leasing on public lands and a moratorium on the approval of LNG export plants.

So how on earth could NJ Spotlight’s Washington DC based reporter miss all that and get spun so badly by his biased Neoliberal technocratic sources?

Aside from the politics and lousy journalism, I was intrigued by how the work of a Princeton University’s “modeling researcher” could be cited as evidence to conclude that the bill would reduce greenhouse gas emissions.

So, I hit the links and went down the modeling rabbit hole.

The modeling being used to support these sham claims is the following:

• Onshore Oil and Gas Leasing modeling by RFF can be found here.
• Offshore Oil and Gas Leasing modeling can be found here.
• LNG Export Terminal modeling by Jesse Jenkins can be found here.
• Electric Transmission modeling by RMI can be found here.

I decided to drill down on the Princeton LNG export model because it was cited by NJ Spotlight, because it contradicted Senator Sanders and climate activists claims (i.e. LNG exports would increase GHG emissions equivalent to 165 new coal power plants!); and because intuitively it seemed absurd that increasing LNG exports (and natural gas fracking to produce the gas for those exports) would reduce GHG emissions!

Not surprisingly, the LNG export model was based on highly dubious economic assumptions, flawed science, and produced a wide range of unreliable conclusions that DO NOT SUPPORT THE NJ SPOTLIGHT CLAIMS ABOUT NET EMISSIONS REDUCTIONS.

Princeton Professor Jesse Jenkins’ LNG model can be found in this draft unpublished paper, (which has not undergone peer review and therefore does not warrant the favorable news coverage it received by NJ Spotlight):

• Analysis of energy market and greenhouse gas emissions impacts of pending US liquefied natural gas export terminals”

Hitting the link and opening the model’s spreadsheet, you find the following dubious assumptions and results:

• increasing LNG exports by 11.1 billion cubic feet per day (Bcf/d) results in a US domestic price increase of 9 – 15% (keep in mind that NJ Spotlight reported price decreases)
• that domestic price increase will reduce US demand by 3.5 – 4.3 Bcf/d
• higher domestic gas prices will increase US natural gas production by 8 – 8.8 Bcf/d
• combining these factors in US energy markets results in a range of greenhouse gas emissions from a reduction of 50 million metric tons (MMT) to an increase of 110 MMT (using the 100 year warming potential of methane, not the far more potent 20 year timeframe mandated by NJ law)

The model then examines impacts on world energy markets and again the results are highly suspect and the huge range of outputs is not reliable:

• increase in US LNG exports would reduce world prices by 4 – 6% (the folks in Germany might differ with that conclusion. Here’s the typical European headline: “Electricity & gas hit record prices in 2022″
• lower world prices increase natural gas consumption by 3.5 to 4.1 Bcf/d
• increased use of natural gas displaces coal and reduced GHG emissions
• based on these world market conditions, greenhouse gas emissions range from a reduction of 70 MMT/yr to an increase of 60 MMT/yr (again using warming potential 100)

And here is the final conclusion of US domestic and world impacts:

summing the full range of plausible effects across the US and there rest of the world, I estimate the net change in annual global GHG emissions circa 2035 – 2040 ranging from a decline of 120 MMT/yr to an increase of 170 MMT/yr

That’s a range of 290 MMT/year! (that’s some “confidence interval” eh?)

Jenkins then dismisses the impact of using the more powerful 20 year methane warming timeframe: it “does not have a significant effect”. (keep in mind that NJ law requires that BPU and DEP use the more potent 20 year timeframe).

What Jenkins finds not significant is that his modeled range of emissions INCREASES from -170 to +240 MMT/year  (instead of -120 to +170 MMT/yr).

We didn’t examine them, but will assume that the other 3 models (see above) have similar flaws.

How can such widely ranging (and thus uncertain and unreliable) modeled outputs be cited as evidence to support a claim that the legislation would REDUCE both prices and greenhouse gas emissions?

I emailed professor Jenkins to ask him to support his assumptions and results with real world data.

I’ll let you know if I get a reply.

[Update – just opened my email and here is Professor Jenkins’ reply:

Dear Bill,

The overall emissions impact of the proposed permitting reform act are highly uncertain and span a wide range. Several different analysts and modeling groups have assessed the potential impact of specific sections of the bill. As you have seen, I have looked into the potential impact of expanding LNG terminals. My analysis is an extreme upper bound on the impact of the legislation, as I explain in the research note. Third Way’s Clean Energy Program put out a composite memothat combined several different analyses to present a range of possible aggregate impacts. That is what the NJ Spotlight article refers to. I did not contribute to the writing of that memo, but I am comfortable that my work on LNG has been presented accurately.

Regarding choice of GWP: my work includes both, and the results are not significantly different. There is no “right” choice of GWP to use, as both are oversimplifications of the impacts of different GHGs on climate change. Methane is much more of a flow problem, where the instantaneous peak warming impact and potential to trigger irreversible tipping points in the earth-climate system are the primary concern, but once emissions are reduced, warming is reduced immediately. In contrast, CO2 emissions are effectively permanent and are thus a stock problem: reducing cumulative CO2 emissions is the single most important determinant of long-term climate damages and equilibrium warming. There’s no right answer here, and choice of GWP often reflects implicit normative or ethical judgements (which are not always applied consistently: for example, using GWP 20 implies a very high discount rate as it disregards warming impacts beyond 20 years; while applying a high discount rate would similarly discount long-term climate damages that are the primary rationale for treating climate change with urgency).

Regarding elasticity of supply and demand estimates, these parameters are uncertain but derived from economics literature based in empirical analysis of past responses to price changes. The fact that supply and demand respond to changes in price and vice versa is well established empirically. Considering the multiple reactions of both supply and demand to changes in US LNG exports is important to capture the full picture of potential climate impacts, and that is what I’ve done in my analysis. As parameters are uncertain on several fronts, I present a wide range of possible outcomes and leave it to the reader to determine which scenarios they find most plausible (as this is a subjective decision under deep uncertainty in any case and not my decision to make).

Jesse

DEP’s “Special Environmental Justice Conditions” For PVSC Newark Gas Plant Are Illegal

The Murphy DEP recently proposed a draft permit to approve the Passaic Valley Sewerage Commission’s (PVSC) proposed new natural gas power plant at their Newark regional wastewater treatment facility.

The draft air pollution control permit includes “special environmental justice conditions”, including conditions that would require the PVSC to install 5 MW of solar panels and 5MW of battery storage capacity.

While DEP mandated that minuscule solar capacity relying on dubious legal authority, they completely ignored regulation of emissions of 310,000 tons per year of greenhouse gas emissions!

Yesterday, I posted a rambling analysis and lengthy post about all that was wrong with that draft permit.

Today, I just want to make one point absolutely clear.

The DEP has no authority to mandate that in order to obtain an air permit (or any other DEP permit) that the permit applicant install solar panels and battery storage.

There is no law passed by the Legislature that authorizes DEP to do this (of course there never will be such a law until DEP and climate activists admit the truth, instead of defending toothless laws like the Global Warming Response Act).

There is no DEP regulation that authorizes DEP to do this and provides the technical rationale and scientific basis to justify it.

As I wrote in comments to DEP, the DEP can’t just pull requirements out of their hat.

[And the DEP “EJ Stressor Guidance” Document is not enforceable, see:

• Murphy DEP Environmental Justice Stressor Guidance Document Is An Exercise In Gaslighting And Manipulation]

Although I strongly support solar – and for 40 years have advocated expansive interpretations of DEP’s regulatory authority – this is an outrageously lawless overreach by DEP.

It will harm and discredit DEP and climate efforts worse than DEP’s similar over-reach in proposing The BIG MAP during the McGreevey administration.

Similarly, the DEP Commissioner can not unilaterally  issue an “Administrative Order” to mandate regulatory “environmental justice reviews” by DEP that generate the so called technical basis for imposing these illegal “special environmental justice conditions” in permits.

If this wasn’t so serious and harmful to issues I care so deeply about, it would be funny.

A first year law student could tell you that this is blatantly illegal.

I really find it difficult to believe that DEP would be allowed to act so lawlessly and outrageously, particularly given the fact that DEP Commissioner LaTourette is a former corporate lawyer who clearly knows better.

This only empowers the climate deniers and right wing Federalist Society ideologues who seek to “dismantle the administrative state”.

What the hell were Governor Murphy and Attorney General Platkin thinking? Did they think that 5MW of solar and battery storage would mitigate the harms and provide political cover?

It really shows how political DEP has become under the Murphy administration and how far they have strayed from science and law, in favor of  “the narrative”.

This DEP political stunt will fail and go down in flames, while much needed real substantive reforms to current laws and DEP regulations will be ignored and undermined by the debacle now underway.

Shame on LaTourette and Co. for this unforced and cynical error.

This is a huge setback for environmental justice and climate programs.

[End Note: I friendly reader sent me an email saying the only thing that counts is what Commissioner LaTourette can get away with. I sent this reply:

He won’t get away with this one.

If that permit were allowed to stand, that would mean that DEP could mandate solar installations at thousands of facilities with air permits.

NO WAY the business community will let that happen.

DEP Air Permit Exposes Prior Misleading DEP Claims That Project Was A “Local Issue”

Potemkin Permit Based On A Regulatory House Of Cards

In Order To Kill The Permit And Block The Plant, EJ Activists Will Have To Admit That The EJ Law They Strongly Supported Is A Sham

It does not please me to make arguments and observations that essentially are adverse to environmental justice concerns. I was documenting and advocating EJ positions many years before EJ became a priority issue and NJ’s EJ law was enacted. However, I am bound by reality, not by what I’d like reality to be.

The Murphy DEP just proposed approval of an air pollution permit for a proposed new gas power plant at the Passaic Valley Sewerage Commission (PVSC) regional sewage treatment plant in Newark.

That proposed PVSC fossil power plant has become a huge battleground and test case for the Murphy Administration’s allegedly “historic” 2020 environmental justice law and the DEP’s highly touted “environmental justice regulations”, adopted in 2023.

During the course of the public debate, Murphy DEP Commissioner LaTourette made several false and misleading statements regarding the environmental justice law and his own “Administrative Order”. LaTourette also implied that the decision to approve the plant was a local issue, not DEP’s.

But DEP’s proposed draft permit approval exposes those DEP falsehoods.

And the fact that DEP has agreed to approve the plant, despite blatant environmental justice and climate issues, exposes the EJ law and Global Warming Response Act as toothless. 

Interestingly, all the Newark and EJ activists and organizations who championed the EJ law and strongly supported the DEP’s EJ regulations (read Gov. Murphy’s press release) – including Maria Lopez-Nuñez, Deputy Director of Organizing and Advocacy for the Ironbound Community Corp. ; Kim Gaddy, National Environmental Justice Director for Clean Water Action, Melissa Miles, Executive Director for the New Jersey Environmental Justice Alliance, Dr. Nicky Sheats, Ph.D., Director for the Center for the Urban Environment, John S. Watson Institute for Urban Policy and Research at Kean University, and New Jersey Progressive Equitable Energy Coalition Chairman Marcus Sibley – all now vehemently oppose the DEP’s draft permit to approve the facility.

The new PVSC gas plant would be the fourth power plant in Newark, which also hosts a regional garbage incinerator and garbage transfer stations, sewage treatment plants, ports, toxic waste sites, heavy traffic, and other major industrial pollution sources and therefore is a designated over-burdened “environmental justice community” under NJ’s environmental justice law.

I)  The DEP Has Proposed a Potemkin Permit And Built A Regulatory House Of Cards

The DEP’s regulatory response to this project is a mess, as is the strategy of environmental justice and climate activists.

For political reasons, Murphy DEP Commissioner LaTourette has created a regulatory house of cards in an effort to pacify the Newark Community, evade accountability, and divert attention from massive loopholes in NJ’s toothless EJ and Global Warming Response Act laws.

It is now obvious that that effort has failed.

But, ironically, in order for Newark environmental justice and climate activists to defeat this permit, they will have to honestly admit major flaws in the very laws that they have championed and worked so hard to enact and support.

This will be extremely difficult to do, because they have praised these laws, supported Commissioner LaTourette, and thereby misled the public for years.

Strategically, an honest attack on those laws and the kind of legal criticism necessary to kill this DEP permit might be perceived as phyrric victory: win the battle, but lose the war.

Regardless, let me be perfectly clear: The DEP’s “special conditions” are not only technically inadequate window dressing, they are illegal and unenforceable and they will be challenged in court and defeated if DEP adopts them in a final permit. Period.

[Full disclosure: I was wrong in my prediction that the “special EJ conditions” were just a bluff. I mistakenly assumed that lawyers at the Attorney General’s Office would never allow DEP to issue such a legally flawed draft permit and expose the State to legal embarrassment and certain lawsuit.

I predicted:

My guess is that DEP Commissioner LaTourette is not only gaslighting the public to avoid revealing those regulatory shams.

My guess is that he’s bluffing the PVSC Commissioners and attempting to generate public pressure on them to abandon the project.

In other words, LaTourette is putting a regulatory gun to the head of PVSC, but that gun is loaded with blanks.

My guess is that Commissioner LaTourette thinks that if the PVSC Commissioners are required to comply with the DEP’s “special conditions” and spend millions of dollars for a power plant they can not use, then they will realize that the economics don’t work and abandon the project.

But this stunt won’t work. PVSC has competent lawyers

(Note: and the precedent established if this permit is allowed to stand would be an incredible expansion of DEP’s regulator power. No way powerful corporate interest allow that to stand.)

II) The Architecture Of The DEP’s Regulatory House Of Cards 

The DEP draft air permit includes the “special environmental justice conditions” DEP developed in response to outrage by the Newark community.

Prior to issuing the draft permit, in response to that community outrage, DEP Commissioner LaTourette issued a unilateral “Administrative Order 2021-25” directing DEP staff to conduct an “environmental justice review” of the project. Commissioner LaTourette claimed:

AO 2021-25 will ensure meaningful community engagement, a more thorough and complete assessment of facility impacts to environmental and public health stressors, and the implementation of appropriate measures to avoid or minimize adverse impacts.

Note that this Order did NOT include the possibility of denying the permit. This is no accident. Commissioner LaTourette, a former corporate lawyer, knew all along that his Order was toothless and DEP lacked the legal authority to deny the permit. This manipulation and spin by LaTourette is unforgivable.

[Clarification: there are actually 4 reasons why the DEP can not deny this PVSC permit on EJ grounds: 1) the EJ law does not apply because the permit application was submitted prior to the adoption of DEP regulations; 2) even if the EJ law did apply, the EJ law does not authorize DEP to deny renewal or modifications of permits for existing operating facilities; and 3) the EJ “Stressor Guidance” document is NOT enforceable. Guidance documents – like Administrative Orders – are not binding, only DEP regulations and Technical Manuals are enforceable; 4) Administrative Orders are not enforceable on the regulated community in terms of a basis for establishing binding permit conditions.]

DEP’s implementation of AO 2021-24 imposed the PVSC permit’s Special EJ conditions, which allegedly are designed to ameliorate the new plant’s pollution and respond to community concerns.

The “special environmental justice conditions” of the draft permit merely limit the hours of operation of the facility to emergencies and mandate the installation of small solar panels (5 MW) and battery storage capacity (5 MW) (see page 19-23).

The Newark Community and EJ activists did not buy it and were not appeased. They turned out to oppose the DEP permit at a hearing on Wednesday (NJ Spotlight news):

Dozens of local residents and activists gathered at a community center in Newark’s Ironbound to urge state environmental officials to block controversial plans for a new natural gas power plant in the neighborhood. […]

Many pointed what they said was the apparent hypocrisy of Gov. Phil Murphy’s administration allowing a new natural gas power plant to be built, despite the governor’s goal of transitioning New Jersey to 100% renewable energy. […]

“Here we have one of the areas of the state with the highest percentage of people of color, one of the areas of the state with the highest percentage of low-income people, and one of the areas of the state that is already the most overburdened,” Smith said. “And this is exactly where PVSC proposes to build its new gas plant and its exactly where DEP proposes to permit that new gas plant.”

III)  Honesty Is The Best Policy: Kill The Permit And Work To Strengthen The Laws

Like I previously noted, in order to kill this permit, the opponents must admit that the EJ law and DEP Commissioner that they’ve been praising for years now is sham.

So here are my comments I just submitted, which provide an analysis that can kill the permit.

Maybe the lawyers at EarthJustice will read them and respond accordingly:

Dear Mr. Ratzman:

Please accept the following public comments on the subject draft air permit. I am responding to the question you posed as hearing officer, as quoted in today’s NJ Spotlight:

“If anyone demonstrates to the department the facility would not comply with any of the applicable air pollution control laws and rules, the department’s proposed decision to approve this permit or the requirements imposed in the draft permit may be changed.”

Based on that story, there appears to be a misunderstanding about the intent and effect of the EJ conditions. They were not designed to and can not mandate emissions reductions. Basically, all they did was limit total hours of operation and restrict when the new gas units can be operated. This could prevent and reduce potential future increases in emissions.

The legal issues raised by the EJ conditions are:

1) whether the federal Clean Air Act and the NJ State Air Pollution Control Act authorize the DEP to conduct an EJ review and impose enforceable EJ conditions. Those conditions were STATE-ONLY APPLICABLE REQUIREMENTS, thus the basis appears to be State law. However, the “State ONLY” conditions impact a federal permit subject to US EPA review and approval issues, thus it appears that there is joint federal and state law implicated; and

2) A related second issue is, if those laws do authorize DEP regulation of EJ issues, whether the DEP adopted air pollution control regulations to implement that authority. Any permit condition imposed by DEP must be authorized by a DEP regulation that’s on the books BEFORE the permit application is submitted and deemed complete by DEP. DEP may not retroactively impose regulatory requirements.

3) for the sake of argument, even if the EJ conditions were legislatively authorized and adopted in DEP implementing regulations, did the DEP provide a scientific basis and data for and a causal nexus between the conditions and a cognizable adverse impact?

I argue that the answer to these questions clearly is NO.

I predict that if DEP issues a final permit with the proposed EJ conditions, that the PVSC, joined by Amici major regulated industries (NJBIA, Chamber of Commerce, Petroleum Council, Chemistry Council, et al), will all sue DEP. This is a HUGE issue that would set a precedent that would allow a huge expansion in the scope and regulatory power of the DEP. No way the regulated community will let that happen. In fact, this is why the EJ law is written the way it was, e.g. it did NOT amend applicable law to expand the technical basis for DEP establishing permit conditions. The enviro’s and EJ activists got duped on this.

In terms of the Title VI Civil Rights claims raised by the EarthJustice lawyer, that too is a loser. In fact, federal courts recently struck down US 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).

There are Title VI Civil rights cases out of NJ (i.e. Camden) that make it virtually impossible to litigate that issue (e.g. in addition to showing disproportionate or disparate impact based on race, litigants must prove actual INTENT to discriminate based on race. That is almost impossible. (see:  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-second-door-on-plaintiffs-in-south-camden-environmental-justice-case-05-02-2002

Ironically, everyone seems to be missing a valid legal flaw in the DEP permit. Follow the logic:

1) CO2 (and other greenhouse gases) are “regulated pollutants” (“air contaminants”) and have been since 2004 under DEP air pollution control regulations. The Department has a mandatory duty to regulate and control “regulated pollutants”. In adopting those regulations, DEP has asserted joint legal authority to regulate under the NJ Air Pollution Control Act and the Global Warming Response Act.

2) In the draft permit, the DEP quantified CO2 equivalent emissions (310,000 tons), but failed to regulate them in any way (e.g. emission limits, pollution control technology, operating conditions, mitigation and offset, emissions fees, et al).

3) DEP’s failure to regulate CO2/GHG emissions violates applicable law and makes the permit “arbitrary and capricious” and an “abuse of discretion” due to “omission” and  “clear error” (see: NJ Administrative Procedure Act and NJ Air Pollution Control Act).

Finally, why would DEP propose the draft permit BEFORE the PVSC agreed to comply with the EJ conditions?

The DEP imposed those EJ conditions based on an “EJ review” conducted allegedly pursuant to the NJ State EJ law and DEP implementing regulations. However, both the EJ law and DEP regulations do not apply to the subject PVSC facility and permit due to the timing of the permit application, the passage of law, and the adoption of DEP regulations. DEP may not retroactively impose regulatory requirements.

The DEP then applied the EJ conditions in the subject air permit, compounding and repeating the legal errors.

I urge DEP to withdraw the draft permit and reconsider a new permit application with EJ teeth and regulation of CO2 and greenhouse gas emissions.

It does not please me to make arguments and observations that essentially are adverse to environmental justice concerns. I was documenting and advocating EJ positions many years before EJ became a priority issue and NJ’s EJ law was enacted. However, I am bound by reality, not by what I’d like reality to be.

Bill Wolfe

“You Humbug! – “You are a very bad man!”