WolfeNotes.com

EPA Decision is “Pending”

Environmental Justice, Energy, And Renewable Power Issues At Stake

On May 27, 2025, I filed a Title V Petition to challenge the NJ DEP issuance of a Clean Air Act Title V permit to the Passaic Valley Sewerage Authority (PVSC) for a new fossil fueled power plant in Newark NJ.

According to the EPA Title V Petition database, the petition was accepted:

The petition makes controversial arguments that will, among other things:

• test the enforceability of NJ DEP Commissioner LaTourette’s Administrative Order that mandates “environmental justice reviews” of certain permit applications and whether that Order can be applied retroactively

• test the scope of the Clean Air Act with respect to EPA powers to authorize renewable energy requirements in Title V permits

• probe the depths to which Trump’s Executive Orders on energy emergency, environmental justice, deregulation and DEI are being implemented by the EPA career bureaucracy and enforced by Trump’s political appointees

• shed light on strategies for State level regulatory tactics to avoid Trump EPA rollbacks

We’ll keep you posted on the outcome.

Trump’s New Due Process Amounts To “Yelling At The Jailers”

A New History – A New Tradition

When a Supreme Court dissent begins like this, you know you’re in for a ride:

In matters of life and death, it is best to proceed with caution.

Reminds one of another famous opening line by Camus:

Mother died today. Or maybe yesterday; I can’t be sure.

Or perhaps more apt, Kafka’s opening:

Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested.

The remainder of the dissent did not disappoint.

Perhaps the most stunning text was the exposition on the mechanics of Trump’s new Due Process doctrine.

Here’s what now satisfies Due Process according to the legal briefs and practices of the Trump Department of Justice and Homeland Security:

Short of the noncitizens “yelling at any of the jailers that they were afraid to go to South Sudan” (as the District Court put it), id., at 13, DHS did not offer the noncitizens an opportunity to assert a claim under the Convention.

Yelling at the jailers (presumably from the jail cell in Gitmo or some other foreign Gulag) – that’ll do. How “meaningful” an opportunity is that!

But there was also important legal and historical analysis from that dissent regarding what I’ll call Trump’s “Dirty Hands” doctrine (TM).

The dissent summarized the history of what is known as the “Clean Hands” doctrine and compared that historical doctrine to what the Trump administration actually did and legally defended.

In doing so, the dissent effectively documents the emergence of Trump’s “Dirty Hands” doctrine, which the majority right wing “history and tradition” Justices just endorsed (by a 6-3 vote).

Read it and weep:

For centuries, courts have “close[d] the doors” of equity to those “tainted with inequitableness or bad faith relative to the matter in which [they] see[k] relief.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806, 814 (1945); see generally T. Anenson, Announcing the “Clean Hands” Doctrine, 51 U. C. D. L. Rev, 1827 (2018)  (reviewing this doctrine’s long history) [Note: my link]. That principle, “rooted in the historical concept of [the] court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith,” ensures that courts do not become “‘abettor[s] of inequity.’” Precision Instrument, 324 U. S., at 814.

Here, in violation of an unambiguous TRO, the Government flew four noncitizens to Guantanamo Bay, and from there deported them to El Salvador. Then, in violation of the very preliminary injunction from which it now seeks relief, the Government removed six class members to South Sudan with less than 16 hours’ notice and no opportunity to be heard. The Government’s assertion that these deportations could be reconciled with the injunction is wholly without merit. Notice at 5:45 p.m. for a 9:35 a.m. deportation, provided to a detainee without access to an attorney, plainly does not “‘affor[d]’” that noncitizen with “‘a reasonable time’” to seek relief. A. A. R. P. v. Trump, 605 U. S.___, ___ (2025) (per curiam) (slip op., at 4).

Even if the Government’s overnight notice had been adequate, moreover, DHS also did not provide the required “meaningful opportunity . . . to raise a fear of return” under the Convention. ECF Doc. 64, at 46. The affected class members lacked any opportunity to research South Sudan, to determine whether they would face risks of torture or death there, or to speak to anyone about their concerns. Instead, they were left in their cells overnight with no chance to raise a claim and deported the next morning.

The Government thus openly flouted two court orders, including the one from which it now seeks relief. Even if the orders in question had been mistaken, the Government had a duty to obey them until they were “‘reversed by orderly and proper proceedings.’” Maness, 419 U. S., at 459 (quoting United States v. Mine Workers, 330 U. S. 258, 293 (1947)). That principle is a bedrock of the rule of law. The Government’s misconduct threatens it to its core.

So too does this Court’s decision to grant the Government equitable relief. This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. See Trump v. J. G. G., 604 U. S. ___ (2025) (per curiam). Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.

Torture memo John Yoo’s cruel twisted worldview is now Supreme Court doctrine and Trump practice.

The Murphy DEP just threw DEI, environmental justice, and climate programs under the Trump bus (see yesterday’s post).

Governor Murphy and his DEP Commissioner LaTourette have repeatedly touted their commitments to both climate and environmental justice.

In no DEP program area are these alleged commitments more aggressively expressed than in funding urban parks, which provide open space; trees, shade, and greenery; and reduced urban heat island effects, particularly to over burdened environmental justice communities who lack parks and tree canopy cover.

Here’s the typical Murphy DEP press release spin:

• MURPHY ADMINISTRATION ANNOUNCES 2025 GREEN ACRES AND URBAN PARKS FUNDING ROUND

New Jersey established itself a leader in protecting open space and enhancing recreational opportunities with the creation of the Green Acres Program in 1961,” said Environmental Protection Commissioner Shawn M. LaTourette. “Through this program, New Jersey has an ever-growing network of open space and recreational facilities that has improved the quality of life for millions of people. The DEP urges local governments and eligible nonprofits to apply for Green Acres funding to further expand recreational and open space access statewide, especially in communities long overburdened by environmental stressors.”

But, directly contradicting this spin, the reality is that the biggest budget cut in DEP’s FY’26 budget is for URBAN PARKS.

(source: NJ DEP response to legislative questions)

That proposed $8 million cut must be restored and funds for urban Parks increased significantly.

This information needs to be provided to the people of NJ.

The Governor and DEP Commissioner are hypocrites and gaslighters.

Environmental groups have become cheerleaders:

Cowardly Cave To Trump Threats To Withhold Federal Funds

Capitulation Invites Across the Board Cuts In Federal Funds For NJ

In a case with huge implications for future federal funding of NJ’s climate and “Diversity, Equity, and Inclusion” (DEI) programs, including “environmental justice” programs, the Murphy DEP voted to approve a Resolution that eliminated climate and DEI programs at the Delaware River Basin Commission (DRBC) that are funded by the Trump US Army Corps of Engineers (USACE).

NJ Spotlight reports on that and more in a must read story, see:

• Delaware estuary now under pressure from Trump administration

The Trump “pressure” is far broader than just the Delaware watershed.

In April, the Trump USACE threatened to withhold federal funds for DRBC climate and DEI programs:

the Commission must not use federal funds awarded through the Corps to support policies or programs that advance the principles of “diversity, equity and inclusion” or the concept of “climate change”

The DRBC, virtually verbatim, caved to that threat and on June 11 quietly adopted a Resolution that says:

2. In recognition of policies of the current federal administration, from this point forward and for as long as these policies remain in effect, federal funds awarded hereafter to the Commission through the United States Army Corps of Engineers shall not be used directly or indirectly to support programs or policies that advance the principles of “diversity, equity, and inclusion” or the concept of “climate change.”

Profiles in cowardice. Denial of climate science.

Let that sink in: The Murphy DEP voted in FAVOR of climate denial and an illegal and racist Trump attack on DEI programs.

The DEP gets a lot of USACOE money, particularly at the shore. Did the USACE send there same letter to the DEP?

That capitulation invites the Trump “dismantling of the administrative state” to defund all federally funded climate, environmental justice and DEI programs in NJ – that could be hundreds of millions of dollars are at stake.

Trump EPA Administrator Zeldin has pledged to do that across the board – in addition to clawing back billions of dollars in DEI and climate and infrastructure grants.

Instead of capitulating to these illegal Trump threats, illegal Trump Executive Orders, and illegal Trump impoundments of Congressionally appropriated funding, the Murphy Administration should be suing Trump, not throwing climate and DEI programs under the bus.

Where is the Governor and the NJ State legislative oversight of this disaster?

Why aren’t they circling the wagons, woking with the NJ Congressional delegation, and holding public hearings on this attack? See another letter below:

———- Original Message ———-

From: Bill WOLFE <>

To: “Grogan, Susan [PINELANDS]” <Susan.Grogan@pinelands.nj.gov>, Mark Lohbauer <mlohbauer@jgscgroup.com>, “ben.spinelli@highlands.nj.gov” <ben.spinelli@highlands.nj.gov>, “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>

Cc: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, “senmckeon@njleg.org” <senmckeon@njleg.org>, “senzwicker@njleg.org” <senzwicker@njleg.org>, “senscutari@njleg.org” <senscutari@njleg.org>, “sitka@comcast.net” <sitka@comcast.net>, Julia Somers <julia@njhighlandscoalition.org>, Ruga Elliott <elliott@njhighlandscoalition.org>, domalley <domalley@environmentnewjersey.org>, Anjuli Ramos <anjuli.ramos@sierraclub.org>, “Taylor McFarland, NJ Sierra Club” <taylor.mcfarland@sierraclub.org>, “ed.potosnak@njlcv.org” <ed.potosnak@njlcv.org>, Ken Dolsky <kdolsky@optonline.net>, Matthew Smith <msmith@fwwatch.org>, “dpringle1988@gmail.com” <dpringle1988@gmail.com>, “agnesmarsala@gmail.com” <agnesmarsala@gmail.com>, “agoldsmith@cleanwater.org” <agoldsmith@cleanwater.org>, Margo Pellegrino <outriggerone@me.com>, “jonhurdle@gmail.com” <jonhurdle@gmail.com>, “ferencem@njspotlightnews.org” <ferencem@njspotlightnews.org>, “McAlpin, John” <McAlpinJ@njspotlight.com>, “warrenm@njspotlightnews.org” <warrenm@njspotlightnews.org>, “John Mooney, NJ Spotlight News” <njspotlightinfo@e.njspotlightnews.org>, “srodas@njadvancemedia.com” <srodas@njadvancemedia.com>, “david@njglobe.com” <david@njglobe.com>, Jeff Pillets <jeffpillets@icloud.com>, “wparry@ap.org” <wparry@ap.org>, “fkummer@inquirer.com” <fkummer@inquirer.com>, “kirkmoore@verizon.net” <kirkmoore@verizon.net>, “tim@littoralsociety.org” <tim@littoralsociety.org>, “zipf@cleanoceanaction.org” <zipf@cleanoceanaction.org>, Jason Howell <jason@pinelandsalliance.org>, Jaclyn Rhoads <jaclyn@pinelandsalliance.org>

Date: 06/23/2025 9:44 AM EDT

Subject: DRBC & Murphy DEP take a walk on DEI & Climate

Dear Pinelands Commission, Highlands Council, and DEP Commissioner LaTourette:

I was appalled to just now learn that on June 11 the DRBC voted to delete DEI and climate related work from USACoE funded projects and programs, as directed by illegal Executive Orders of Trump that mandate that all federal funds, programs, policies, and regulations “align” with his personal policies expressed in Executive Orders. (see the Resolution):

https://www.nj.gov/drbc/library/documents/ResForMinutes061125_FedFunds.pdf

Apparently, the NJ representative voted in favor of this Resolution.

Instead of quietly supporting the Trump’s irresponsible and illegal attacks on climate and DEI policies and programs via illegal impoundments of Congressionally appropriated funds, the NJ Attorney General should be suing the Trump Administration for this lawless behavior, as many other States are (including NJ in some limited cases).

The DEP is Governor Murphy’s representative on the DRBC. The Governor’s Office and DEP have proven quite adept at issuing press releases, particularly with respect to commitments to climate and environmental justice policies and programs. The Governor and DEP should be issuing press releases to inform the public about these abuses of authority and the grave impacts they will have on programs to protect human health and the environment, not staying silent and voting in support of them, while throwing the Delaware watershed under the Trump bus.

This kind of cowardly capitulation invites additional across the board federal funding impoundments, including federal funding from EPA, Agriculture, Interior, and Energy.

I urge the Pinelands Commission and the Highlands Council NOT to follow the cowardly and shameful retreat by the DRBC and DEP.

Please get out in front of this issue by adopting Resolutions that commit to climate and DEI programs now underway. And please accelerate and expand these limited programs.

Finally, I once again urge Legislative oversight AND PUBLIC hearings on the statewide impacts of Trump’s “dismantling of the administrative state” and ways to develop strategies to protect NJ’s interests.

Bill Wolfe

EPA and California Claim That The Market Is Better Than Regulatory Mandates

On Friday (June 20), the US Supreme Court issued another pro-fossil fuels decision in an industry challenge to EPA and California climate regulations – in this case the EPA electric vehicle waiver. (read the decision).

The case only involved the narrow and technical legal standing issue, not the merits of the EPA waiver (which is effectively moot because the Congress killed the EPA waiver.

No doubt the environmental group criticism and press coverage will blast the Court as again siding with the fossil industry. In fact, a scathing dissent by Justice JACKSON attacks the Court’s credibility:

Over time, such selectivity begets judicial overreach and erodes public trust in the impartiality of judicial decisionmaking.

Today’s ruling runs the risk of setting us down that path. … [The Court] rests its decision on a theory of standing that the Court has refused to apply in cases brought by less powerful plaintiffs. This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.

No doubt, true.

But I want to focus on a much broader and significant issue raised by the Court’s opinion based on arguments made in the briefs filed by EPA and California.

As an old school New Deal/Green Dealer, critic of “market failure”, and champion of government planning and regulatory policy intervention – from “industrial planning” to “technology forcing regulations” and technology assessment – I’ve been shocked by how, over the course of my career, the focus of environmental policy has shifted from regulatory approaches to Neoliberal market based approaches.

The corporate Neoliberal ascendance is not solely a function of political campaign finance corruption (e.g. Citizen’s United) and the corporate capture of government agencies.

Corporate funding of corrupt environmental groups also has provided political cover and helped pave the way for this fundamental ideological, political and policy shift.

While I’ve long criticized corporate Democrats and their market based policies  – from Clinton/Gore “reinvention”, to Cass Sunstein OIRA abuse of CBA, to Waxman-Markey cap and trade, to RGGI, to Lisa Jackson at EPA – I’ve not yet seen the regulatory stick totally surrendered – that is, until now.

Worse, not only has the regulatory stick been surrendered, but the market is said to do better than the regulatory mandates!

Here it is, right up front, in the framing of the legal issues by US Supreme Court Justice Kavanaugh in the fossil fuel industry’s challenge of the EPA California Car Waiver:

EPA and California dispute redressability. They suggest that, even if the regulations are invalidated, car manufacturers nonetheless would not manufacture more gasoline-powered cars. They posit that the California regulations no longer have any impact because, in a free market, consumer demand for and manufacturers’ supply of electric vehicles would still supposedly exceed what the California regulations mandate. […]

Specifically, California suggested that because of supposed “surging consumer demand” for electric vehicles, invalidating the fleet-wide emissions standards and electric-vehicle mandate would not cause vehicle manufacturers to make more gasoline-powered vehicles. Id., at 14. Therefore, California argued that judicial invalidation of the California regulations was not likely to redress the fuel producers’ injuries. […]

EPA and California suggest that the automobile market has changed—apparently permanently in their view—and strong consumer demand for (and manufacturers’ supply of) electric vehicles means that automakers are unlikely to manufacture or sell any additional gasoline-powered cars even if the California regulations are invalidated.

Did you get that?

The regulations “no longer have any impact”.

Even with NO regulations, consumer demand alone would exceed the benefits of regulatory mandates!

Those are opportunistic, dangerous, stupid, and flat out wrong arguments for EPA and California to be making.

And EPA made them just prior to and they play right into the Trump regime’s dismantling.

Surely they will come back to bite EPA in the ass.

I’ve heard the same drivel spewed by NJ’s corporate funded climate activists, who regularly parrot corporate slogans and positions – that’s you Doug O’Malley, Ed Potasnak NJ LCV,  and Anjuli Ramos at NJ Sierra.

Shame.