Murphy DEP Commissioner LaTourette Gaslights On Environmental Justice
DEP Delays Adopting Enforceable EJ Regulations
DEP Administrative Order Is Pure Window Dressing
Like the long delayed DEP “climate PACT” regulations, the DEP regulations to implement the seriously flawed NJ environmental justice law are similarly delayed.
Ironically, the issues are inter-related. Among many other major flaws in the EJ law, as I wrote:
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Greenhouse gas emissions are exempt. This ignores the climate emergency and the fact that EJ communities suffer disproportionately from climate impacts, especially from air pollution and extreme heat & urban heat island effects. This is an unforgivable missed opportunity to reduce GHG emissions as well at mitigate climate impacts in urban NJ.
Obviously, the Murphy administration is highly vulnerable to valid criticism for their failure to adopt those critical regulations, after almost 4 years in power.
This is criticism they are desperate to avoid, due to Gov. Murphy’s many exaggerated commitments on both climate and EJ policies, especially in the run-up to an election.
In response to these failures and delays, Murphy DEP Commissioner LaTourette issued ADMINISTRATIVE ORDER NO. 2021-25 on September 20, 2021 regarding implementation of the NJ environmental justice law.
Revealingly, that DEP Order is being spun by many, including one of NJ’s largest corporate law firms, as significant, e.g. this Orwellian titled piece:
EJ comes early? Are you kidding me?
The fact is that DEP has long delayed adopting EJ regulations, and this is by design, not just bureaucratic inertia.
Gee, I wonder why a corporate law firm would be spinning a story in favor of the Murphy DEP?
The corporate community (polluters & developers) – who this law firm represents – know they have dodged a bullet with this sham Order and their lawyers are essentially pissing on our legs and telling us it’s raining.
The Order by DEP Commissioner LaTourette – a former corporate lawyer – is a gaslighting joke.
The EJ bill signed by the Gov. was amended to eliminate any deadline on DEP adoption of regulations. The original version of the bill had a 180 day effective date. That deadline was eliminated and replaced by this open ended mandate (note there is no enforceable legal (statutory) deadline for DEP to act to adopt regulations). Section 5 of the law provides:
The department shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B 1 et seq.) rules and regulations to implement the provisions of this act.
In addition to delay, we need to highlight a fundamental of administrative law.
Just like an Executive Order issued by the Governor, an Administrative Order of the DEP Commissioner does not have the force and effect of law and can not establish binding requirements on the private sector.
That legal reality is the result of a concept called “due process”, where administrative agencies like DEP are required to go through formal procedures before imposing requirements on people and corporations. That process is called “public notice and comment rule-making” under the NJ Administrative Procedure Act.
An administrative Order is more like a press release or aspirational statement, than a binding regulation.
The DEP Administrative Order admits that:
WHEREAS, the Department cannot exercise the full extent of its authority under the Environmental Justice Law until these implementing regulations are duly promulgated;
Let that sink it – the DEP Order openly states that it can not be enforced until DEP adopts regulations.
As I previously noted, adoption of enforceable regulations is the core of the matter – and that the flaws in the legislation regarding those regulations destroyed any ability to actually achieve any real environmental justice benefits:
II) EJ Bill Fails To Change The Rules of the Regulatory Game
As I previously wrote, that bill completely fails to address DEP’s regulatory algorithms – things like how DEP conducts “risk assessment” and local air quality impacts. […]
In order to provide environmental justice, environmental laws, DEP regulations, Technical Manuals, Guidance Documents, permit review methods, public participation processes, and permit decision criteria and standards must be changed.
Again, the pending EJ bill fails to do this, thereby giving DEP a pass to continue the status quo business as usual.
Virtually everything in the DEP Order is allowed under current law – almost all of the elements are procedural in nature.
For example, the DEP Commissioner already has the authority and sometimes obligation (prior to the EJ law) to extend public comment periods, hold public hearings, respond to public comments, require permit applicants to respond to public comments, encourage informal engagement, etcetera.
THIS IS ALL CURRENT DEP PERMIT PRACTICE!
No new standards or requirements are established and the Order is not enforceable. Nothing will change as a result of this Order.
Don’t be fooled by gaslighting window dressing.
[End Note: DEP Commissioner LaTourette is a lawyer – who previously represented major corporate polluters – so he knows exactly what he is doing.
If he pulled a disingenuous, ineffective PR stunt like this while representing a corporate client, the partners in the firm would fire him.
It is conceivable that he could be subject to an unprofessional practice or ethics complaint before the NJ Bar Association for misleading legal statements and unprofessional and ethically suspect practice.
In my 35 years of DEP experience, on a legal matter of this policy significance, high public profile, and political sensitivity, there is no way that LaTourette issued that Order without prior consultation and approval of the Governor’s Office.
Which leads me to one of two conclusions, either:
a) the Gov. and his staff are incompetent and trust LaTourette, who duped them (this is highly unlikely, because the Attorney General’s Office’s sign-off is required on this); or
b) there are some very cynical, manipulative and dishonest people in this Administration, including the Governor.
It is also likely that LaTourette at least gave a heads up to the business community (NJ BIA, NJ CIC, Chamber of Commerce, NJ Builders Assc. NAIOP, etc) if not consulted with the on the Order.
I wonder if the environmental justice community got similar consultation, or whether LaTourette just bamboozled them knowing (based on years of prior experience) that they would fall in line and not criticize it, if not salute it.
I expect the press corps to be bamboozled by all this inside baseball – they never get in the weeds and take government officials statements at face value. ~~~ end]