This Is Why DEP Will Not Deny The Newark Power Plant Air Permit
The Only Way Out Is For PVSC To Withdraw The Permit Application
Expect The Long-standing DEP Shuffle: Delay It To Death
I need to explain the reasons and implications of why DEP can’t deny the PVSC Newark power plant permit.
The Governor and DEP are in a box.
They both have made commitments and promises on EJ that they can not deliver on. Those promises have raised public expectations. Yet the Governor’s Executive Orders and the DEP Commissioner’s Administrative Orders are not enforceable and have no more legal weight than a press release.
The activists in Newark are not going away. And the media has begun to report on the project and is following the issue.
The DEP air permit regulations are fatally flawed and do not provide a legally defensible basis to deny the PVSC permit application. Despite these flaws, the DEP has not revised permit regulations to walk the talk on EJ.
If DEP were to deny the air permit, then PVSC could easily legally appeal and win (that might take years, but they would win). But PVSC is a public sector entity, so they might be reluctant to get into litigation with the State.
One would think that a “free pass” on legal challenge from PVSC might lead DEP to deny the permit and use political pressure to block PVSC from appealing that decision.
But, here’s why that won’t happen.
DEP won’t deny the permit – even if they knew PVSC would not appeal – because to do so would provide a regulatory basis and precedent that could then be used against other permits.
Corporate industrial polluters would never let DEP get away with that. This corporate power is why the DEP air permit rules are so weak to begin with.
For the same regulatory reasons, this is why the EJ law if fatally flawed: because it didn’t require than DEP fix these existing fatally flawed air permit regulations and review methods (this would include everything from how to define “State of the art”, to air quality and emission standards, to air quality monitoring and modeling, to cumulative impacts, to community based health risk assessment (known as “stressors” in the EJ law).
Instead of that heavy lift – which corporate polluters would vigorously oppose and block in the legislature – the EJ law created a parallel DEP review process with vague narrative standards that can not be enforced by DEP.
This novel parallel EJ process explains why DEP has delayed and been unable to propose EJ rules.
So, just like the PennEast pipeline, DEP must find some other means to kill this project (assuming they want to, which is a questionable assumption).
My best guess is that DEP will pull their longstanding standard operating procedure when dealing with public controversy and huge regulatory stakes: they will delay any permit decision in hopes that PVSC will just abandon the project or withdraw the permit application.
Just like the PennEast pipeline.