DEP Order Emphasizes “Collaboration” With Polluters And Will Produce More Voluntary Pennies On The Dollar NRD Settlements
DEP Order Is Non-Binding And Does Not Resolve Legal Vulnerabilities
“There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said. ~~~ NJ Law Journal (April 2, 2015)
We need to set the context, before getting to today’s news from the Murphy DEP, soliciting members for a new Natural Resource Restoration Advisory Council.
Over 21 years ago, Gov. McGreevey’s DEP Commissioner Brad Campbell – who I served as a policy advisor – issued an Administrative Order that announced a new, greatly expanded, and aggressive Natural Resource Damage litigation strategy, policy, and program at over 4,000 hazardous waste sites, see:
- NJDEP Policy Directive 2003-07: Natural Resource Damages
http://www.nj.gov/dep/commissioner/policy/pdir2003-07.htm
Ooops! Sorry, you can’t see that, because the current DEP Commissioner has killed the link and erased that history.
Now, why would he want to do that?
Answer: so he can spin the public because the press and public have no context to understand why his own NRD Order is seriously flawed and his new Natural Resource Restoration Council will be lame.
But he forgot to kill the press releases that announced that 2003 Campbell initiative, see:
NEWARK —Working to recover compensation on behalf of the citizens of New Jersey for the lost use of natural resources caused by industrial pollution, Department of Environmental Protection (DEP) Commissioner Bradley M. Campbell today announced a large-scale directive to address more than 4,000 potential claims for natural resource damages statewide. In addition, Commissioner Campbell today ordered 66 responsible parties to assess and restore natural resource injuries to the Passaic River caused by 18 contaminated sites within its watershed.
Since Commissioner Campbell’s 2003 NRD Order and the filing of hundreds of NRD lawsuits against corporate polluters, the DEP’s NRD program has come under severe political and legal attacks.
Since then, multiple corporate lawsuits – including some litigated by current DEP Commissioner LaTourette representing corporate polluters – have blocked DEP recovery of natural resource damages.
Specifically, LaTourette represented Essex Chemical in a successful lawsuit, see:
But the Essex Chemical case was not LaTourette’s only corporate polluters’ rodeo – check this one out:
The ethics were so blatant, I filed a complaint with the State Ethics Commission, see:
But it gets even worse.
The DEP NRD program’s denouement was Governor Christie’s notorious 3 cents on the dollar $225 million settlement of DEP’s $8.9 billion lawsuit claim against corporate polluter Exxon Byway refinery.
In an unprecedented move, former Commissioner Campbell took to the Op-Ed page of The NY Times to blast that corrupt deal, which itself generated harsh news coverage and a scathing editorial by The NY Times, see:
The primary reason for DEP losing multiple NRD lawsuits was DEP’s failure to adopt enforceable NRD regulation, particularly standards and methods to quantify and economically value natural resource injuries that formed the scientific basis for the lawsuits, see NJ Law Journal:
The $225 million pollution settlement between New Jersey and Exxon Mobil Corp. has been criticized as inadequate, given the state’s $8.9 billion damages claim, but some lawyers and environmentalists have questioned whether the state’s valuation of the case would have withstood judicial scrutiny. […]
But some lawyers and environmental advocates said the state’s failure to adopt a methodology for calculating damages for harm to natural resources through the formal rule-making process—as it committed to do more than a decade ago when it settled another suit—weakened its negotiating position and led to a lower settlement in not just the Exxon case but in other natural resource damage suits it has brought.
And here’s the heart of the matter, where the NJ Law Journal article gave me, quite literally, the money quote:
Wolfe said the lack of valuation rules leaves the state vulnerable to challenges on the amount of damages.
The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said.
Exxon’s lawyers are “sharp enough to know this” and to assume the state knows it is legally vulnerable, Wolfe said.
“There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said.
It’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar”, Wolfe said.
For details and links to the documents, see:
The Exxon NRD settlement scandal prompted NJ Senate Environment Committee Chairman Bob Smith to establish a legislative Natural Resource Damage Task Force. The mission of the Task Force was to recommend standards and methodologies for quantifying and monetizing natural resource injuries.
Smith’s charge to the Task Force was to develop recommendations to the Legislature to enact science based enforceable standards and reliable methods to measure and quantify natural resource injuries and the economic value of natural resource damages. As NJ Spotlight reported:
The state is seeking ways to shore up how it assesses damages to natural resources when polluters contaminate New Jersey’s waters, wildlife, and land.
By establishing clear and objective standards, the state would have an easier time of prying the money needed to restore drinking-water supplies, habitats, and other natural resources from the companies whose spills and other actions harmed them, environmental advocates say.
To that end, Sen. Bob Smith, the Democratic chairman of the Senate Environment and Energy Committee, said he plans to set up a stakeholder process to try to come up with a workable mechanism that would set such standards.
Based on these recommendations, Chairman Smith pledged to propose legislation.
Senator Smith’s lame attempt to establish standards for natural resource damages was killed by corporate power, see:
And the DEP still has not adopted NRD regulations – mandated under an 2004 judicially approved settlement – that would define, economically value, and set standards and methods for the NRD program, see:
So, here we are.
This is the backdrop for today’s new NRD Order by Murphy Commissioner LaTourette, a lawyer with dirty corporate hands in the NRD litigation arena, who should have been sanction by the State Ethics Commission, or fired already and should at least have the common sense to recuse from all NRD issues.
None of these problems have been solved. In conclusion:
- The DEP Commissioner’s 2023 NRD Order is not enforceable because it was not authorized by Legislation and has not been promulgated pursuant to notice and comment rulemaking. (BTW, virtually all the DEP external Advisory Councils were created by Legislation, so this Commissioner’s unilateral Order is an over-reach).
2. The new Natural Resource Advisory Council will have no teeth and will make recommendations to a fatally flawed program.
3. The provisions of the Order itself reveal that it applies only prospectively and to none of the thousands of sites DEP initiated NRD litigation way back in 2003 (see paragraphs 16 and 17).
But this post is already too long, so tomorrow we break down LaTourette’s Order and explain the prescription of failure by the new Natural Resource Restoration Advisory Council.
