Hiding Behind Lawyers to Hide Coastal Zone Impacts Isn’t A Good Management Strategy

It just makes people think that you are trying to hide something, which, apparently, the Markell Administration is doing. Today’s NJ brings us another story of the ongoing issues surrounding the PBF refinery at Delaware City. In the main, it looks like the refinery is expanding its operations outside of its permitted area (staging and unloading rail cars outside of the boundary of the plant; a planned barge shipment of oil over to a NJ plant), and taxpayers aren’t being allowed to see whether or not there are violations of the state’s Coastal Zonal Act here.

O’Mara ruled that the loading operation was part of a pre-existing activity covered by Coastal Zone grandfathering. But environmental groups argued that it will be used to pass-through crude oil to another refinery from a rail yard built outside the boundary of Delaware City’s allowable activities.

O’Mara also said that he viewed the sprawling rail-unloading center as a transportation facility, similar to a plant road, that would not require Coastal Zone approval.

Markell and other state officials refused to release Department of Justice correspondence on the issue, arguing they didn’t have to make it public because they considered it to be confidential correspondence between attorney and client.

Both of these rulings rather stretch the imagination. But more importantly, it makes the Markell Administration look like they will do whatever it takes to make sure that PBF can do whatever it likes on that site — no matter the pollution risk. It would be interesting to ask just what PBF could do at this site that they would say NO to. Hiding behind attorney-client privilege sends the signal that thy do have something that they do not want taxpayers to see. If anyone remembers the battle against the LNG plant in NJ, you’ll recall that there were no attorney-client privilege there. They talked to anyone who would listen about the justification in defending their case in terms of the CZA as well as in terms of defending longstanding boundaries. Now, they’re clearly in a defensive crouch, and while crouching they seem to be working at weakening exactly what the CZA is meant to protect.

It would be great to get a look at the warning prepared by the State’s Attorneys of CZ violations that the NJ claims exists. Because even if the state is going to work at undermining the regulatory box that the CZA creates to try to preserve coastal resources, that document could certainly be a starting point to get PBF to take certain actions to mitigate against those potential impacts. The State working to shield PBF (the way it looks like they are doing now — with little transparency) invites Delaware taxpayers to wonder what would happen in the event that there would be a spill or other pollution damage there. Arkansas and the Fed DOJ are suing EXXONMobil for cleanup costs and recovery of other penalties in that spill. The recent bill that eliminates the cap on spill liability here makes sure that it is possible to recover court awarded damages as a result of any spill. But the best oil spill (or pollution damage) is the one that didn’t happen, and my experience is that states that are looking to protect jobs (and profits) aren’t especially good incentivizing dirty industries to avoid this kind of pollution at any cost.

The Markell Administration at one time opposed the deepening of the Delaware River navigation channel on environmental grounds and even joined a lawsuit to oppose it. They abandoned the lawsuit later and then embraced the project on economic grounds — but what the PBF plant is doing TODAY and plans to do in shipping crude from their facility to NJ is massively dirtier and massively more environmentally risky than any additional dredging of the main channel ever would be. And yet the Markell Administration is working at enabling some of the dirtiest and riskiest work that could ever be done on our coastlines.

I don’t object to the refinery or its operation — I just think that they should be required to do their work as cleanly as possible and as safely as possible. That means requiring certain controls on that operation and it means letting the public see what is going on between DNREC and the operators of this plant.