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DEP Seeks To Narrow The “Compelling Public Interest” Loophole

DEP Makes A Basic Legal Error: Scope Of Regulation Contradicts Statute

To prepare for the public hearings on Murphy DEP’s proposed “Environmental Justice (EJ)” regulations, the NJ EJ activists have issued “talking points” to assist the public. (July 27 in Newark is final traditional public hearing. The written comment period is open until September 4, 2022).

Not surprisingly, those talking points are crap.

The activists just fail to understand that the flaws they criticize are created by the EJ law that they supported!

Activists highlight just one of the major flaws in the EJ statute that I’ve been writing about, the “compelling public interest” loophole.

The confused activists conclude:

If you remove the economic factors exclusion and make the compelling public interest clause broad in its application – you essentially create an enormous loophole that renders this landmark EJ bill a complete failure

They got one thing right: the “landmark EJ bill” is in fact “a complete failure.”

Here’s how the EJ activists describe that loophole: (emphases mine)

Compelling Public Interest

The law states that new permits for covered facilities in overburdened communities that contribute to the existing or new disproportionate pollution shall be denied. There is an exception for a compelling public interest in the host community when the facility primarily serves an environmental, safety, or public health purpose. This exception excludes economic considerations. This means that industry cannot use economic arguments to push through permits that contribute to pollution in overburdened communities. This part of the rule is very important because industries could use economic arguments to justify any permit application and essentially create a loophole in the rule.

I warned about the same loophole, when it mattered (i.e. before the bill was passed and before the Gov. signed it):

the DEP permit denial authority is destroyed by an “exception” – a huge loophole provision that allows DEP to waive the mandatory permit denial and issue the permit if a polluter claims that there is a “compelling public interest” for the industry or facility seeking the permit, even if there are disproportionate and unjust impacts.

But the EJ activists still supported the bill with that loophole.

So now, they flat out LIE about the compelling public interest loophole in the law that they supported.

The law does NOT “exclude economic considerations”.

The law does NOT require that “the primary purpose of the facility must be to serve an essential environmental, health, or safety need of the host overburdened community for which there is no reasonable alternative to siting within the overburdened community.”

That text is from the DEP proposed rule, not from the statute.

Here’s the text of the DEP regulatory proposal:

“1. The proposed new facility will primarily serve an essential environmental, health, or safety needs of the individuals in an overburdened community;

2. The proposed new facility is necessary to serve the essential environmental, health, or safety needs of the individuals in an overburdened community; and

3. There are no feasible alternatives that can be sited outside the overburdened community to serve the essential environmental, health, or safety needs of the individuals in an overburdened community.”

But compare that to the text from the law:

“except that where the department determines that a new facility will serve a compelling public interest in the community where it is to be located, the department may grant a permit that imposes conditions on the construction and operation of the facility to protect public health”

The law does not limit the scope of the compelling public interest.

It does not limit that interest to “essential environmental, health, or safety needs”, or “that no feasible alternatives can be sited outside the community.”

Just like DEP can not expand the scope of a legislative provision in regulations, DEP can not narrow one either.

Immediate grounds for a victorious NJ BIA/Chamber of Commerce/NJBA/NAIOP lawsuit.

Dennis Toft already has the briefs drafted and Ray Cantor has the press release ready to go.

Be warned: this is what happens when you negotiate a bad deal and compromise on essential principles, and then provide political cover for the politicians who sold you out.

[End Note: DEP Commissioner LaTourette, who signed off on the rule proposal, is a former corporate lawyer. So, I assume he is competent. If so, he may be sabotaging his own regulation to avoid accountability for a pro-economic development policy and mask flaws in the EJ law, and blame the business community.

Or he could just be incompetent, because this is a glaring and egregious basic legal error.