Flathead River (Montana)

June 20th, 2021 No comments

We turned 64 here

To paraphrase my friend Neil Young: “64 and there’s so much more”

8H1A1091 (1)

Old Man (1972 – Neil Young – Listen):

Old man, look at my life

Twenty four and there’s so much more

Live alone in a paradise

That makes me think of two

Love lost, such a cost

Give me things that don’t get lost

Like a coin that won’t get tossed

Rolling home to you

Old man, take a look at my life, I’m a lot like you

I need someone to love me the whole day through

Ah, one look in my eyes and you can tell that’s true

And I’m still searching for a Heart of Gold.

Just a Coyote.

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Murphy DEP’s Proposed Clean Air Plan Ignores The Climate Emergency And NJ’s Environmental Justice Law

June 15th, 2021 No comments

DEP Plan Required To Ratchet Down On Pollution To Attain Federal EPA Clean Air Act Ozone Standards

An Example Of Gaslighting: Rhetoric Versus Regulation

Screen Shot 2021-06-15 at 11.33.41 AM

[Update below]

The Murphy DEP just proposed revisions to NJ’s federal Clean Air Act mandated State Implementation Plan (SIP), see:

The Ozone SIP has huge implications for public health, environmental justice, reducing greenhouse gas emissions, and conversion of NJ’s transportation sector to zero emission electric vehicles. 

The “mobile source” powers even provide back door land use leverage to restrict or effectively block traffic intensive land uses, like warehouses (e.g.  just think if DEP mandated that new warehouses not only had to be net zero emissions, but also had to have 100% electric trucks. Solar ready? that’s political cover, not science based policy).

The SIP revisions were required by US EPA in order to demonstrate how NJ would come into compliance with federal EPA’s ground level ozone standards – technically the entire state of NJ is in “non-attainment” status for ozone and the problem is serious and getting worse. According to DEP’s SIP revision:

The purpose of this State Implementation Plan (SIP) revision is to address the requirements of the Clean Air Act (CAA) regarding New Jersey’s plan for attaining the 2008, 75 ppb 8-hour ozone National Ambient Air Quality Standard (NAAQS) in its Northern New Jersey multi-state nonattainment area by its attainment date of July 20, 2021. This nonattainment area was reclassified from moderate to serious by the United States Environmental Protection Agency (USEPA) effective on September 23, 2019.

It is not clear, but I suspect that a more restrictive plan is required to meet the lower existing 70 ppb standard -which scientists have criticized as inadequately protective:

  • On December 23, 2020, the [Trump] U.S. Environmental Protection Agency (EPA) acted to retain, without revision the primary and secondary ozone National Ambient Air Quality Standards (NAAQS). The standards, established in 2015 by the Obama-Biden Administration, are set at 70 parts per billion (ppb), in terms of a 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations.

A huge coalition of scientists, environmental groups criticized the Trump EPA for retaining that 70 ppl Obama EPA standard: (WaPo)

“There is powerful, overwhelming evidence that shows that this standard is not adequate to protect the health of Americans,” the group said in a statement. “EPA’s proposal violates the core purpose of these standards under the Clean Air Act: to protect public health with an adequate margin of safety.”

Curious, those same groups were silent when the Obama EPA withdrew and later adopted that “inadequate” standard (something we wrote about at the time (Obama’s first term) and later during Trump’s EPA.)

Regardless, there is no doubt that ground level ozone is a significant threat to public health. NJ has failed to attain the ozone standard for decades.

Ozone pollution disproportionately impacts urban “environmental justice” communities and is exacerbated by increasing temperatures driven by the climate emergency (i.e. see: “urban heat island” effect). Many ozone precursors are volatile organic compounds that are hazardous air pollutants (HAPs) that cause serious public health impacts and risks, like cancer. Many pollution sources have localized “hot spot” and “cumulative impact” environmental justice concerns . Many ozone precursor pollutants also contribute to global warming and their effects are magnified by global warming.

DEP’s own Climate Science Report (July 2020) noted the interactions between ozone and climate and EJ:

Increases in temperature expected as a result of climate change could intensify air pollution as well as respiratory and cardiovascular health concerns. Such impacts are of particular concern for already overburdened environmental justice communities.

But when it comes to putting that science and press release rhetoric into enforceable regulations, DEP takes a walk.

Remarkably, none of this is even mentioned – never mind addressed – in the DEP’s SIP.

The climate  and EJ issues, however, ARE included in the SIP, but only in rhetoric, not in regulation – a critical distinction.

But these issues are implicit and DEP evasively alludes to these issues, but ultimately dismisses them as “Another complexity”:

Another complexity involves the nonlinear relationship between NOx and VOC levels and ozone formation. Areas, such as the majority of the landscape in the OTR, that have extensive forests that produce high levels of isoprene and other VOCs during the summer month achieve the best ozone reduction through reductions in regional NOx, but dense urban areas such as New York City that lack natural VOC production can be VOC limited, and in some cases NOx reductions increase ozone levels due to less NOx being available to destroy already formed ozone through titration.

Serious consideration of climate and environmental justice would force radical changes in DEP’s air quality planning and regulatory programs – from everything from the location of air monitoring stations to the scientific methods for risk assessment and air quality modeling.

But despite the passage of recent environmental justice legislation and the 2007 Global Warming Response Act, DEP has not even begun to make these kind of changes, as this SIP reveals.

In addition to neglecting climate and environmental justice, quite honestly, I could not understand the specific regulatory mandates DEP was planning in order to reduce pollution levels necessary to attain the EPA standards (unless all that is implicit in the models). Let’s hope EPA holds NJ’s feet to the fire on that and makes critical issues transparent.

So, here’s some background on the DEP plan and suggestions on how to pierce the regulatory jargon and spin to read this complex document.

The core elements of the DEP SIP plan are called “Control Measures” (see Chapter 3) – they are regulatory mandates on industry that require specific reductions in emissions of chemical pollutants that cause or contribute to the formation of ground level ozone.

In accordance with Section 172(c)(1) of the CAA (or 42 U.S.C. §7502(c)(1)) states are required to implement all RACM as expeditiously as practicable as part of their effort to attain the NAAQS.

But even in Chapter 3, keep an eye out for DEP weasel words, like this:

State Voluntary Mobile Measures

Emission reduction estimates in this section are not being relied on to meet any required SIP milestones but support the States goal of ozone attainment.

The SIP also must include an “Attainment Demonstration” (see Chapter 6) that provides the data and modeling on exactly how the mandatory reductions will attain the ozone standards. 

NJ based petro-chemical, pharmaceutical, and energy Industries have long strongly opposed DEP regulatory mandates to ratchet down on pollution, often blaming “mobile sources” (cars and trucks) for the problem.  DEP has long deferred to these self serving industry arguments and delayed the necessary ratchet down on pollution controls on both industrial and mobile sources required to achieve the ozone standards and protect public health.

Historically, to mask these failures and avoid accountability – going back to the Whitman “open for business” administration – DEP and NJ industry have claimed that out of state pollution is the major cause of the problem.

The Murphy DEP continues to assert this lame excuse:

The transport of ozone from sources upwind of the nonattainment area continues to contribute significantly to the poor ozone air quality in the Northern NJ-NY-CT nonattainment area, particularly at monitors located in Connecticut. […]

Modeling Studies Confirm That Emissions From New Jersey Sources Do Not Significantly Contribute to the Remaining Nonattainment Area Ozone Levels

The results of recent ozone source apportionment modeling and zero-out ozone sensitivity modeling demonstrate that New Jersey actions by themselves, regardless of stringency, are insufficient to achieve attainment levels of ozone in the nonattainment area.

The DEP also has engaged in a lot of finger pointing, by blaming EPA and other states. The Murphy DEP continues this bureaucratic game – an incredible hypocrisy given NJ’s proposed major increase in transportation related emissions (new roads (and ports and airports) like the Turnpike and GS parkway expansions, create more vehicle miles travelled, and more pollution from mobile sources): Here’s DEP finger pointing:

Mobile Source Rules: Upwind states should adopt mobile source measures similar to those in New Jersey such as the California Low Emission Vehicle Program. The USEPA must also do its part to address mobile source emissions that contribute the largest portion of total NOx emissions within the nonattainment area as well as the region.

This behind the scenes industry lobbying and bureaucratic finger pointing largely explain why NJ has failed to attain federal EPA ozone standards.

The Murphy DEP has even gone so far as to echo the polluters’ discredited economic attacks and blame public health protection and environmental regulations for economic growth concerns. I’ve heard this Big Lie spouted by the Chamber of Commerce and NJ BIA for decades, so its disturbing to find it in the DEP’s own SIP:

New Jersey does not yet meet the federal ozone NAAQS. Therefore, the federal Clean Air Act requires new sources of NOx (e.g., power plants) and VOCs (e.g., gasoline refineries) to offset their NOx and VOC emissions by buying emissions “credits” that are sold by other facilities. Emissions offset credits can be costly and time-consuming to obtain, which is an added burden on new businesses or existing businesses that want to expand. Some upwind neighbors contribute significantly to New Jersey’s ozone problem, but they do not have to comply with the “offset” requirements that sources in New Jersey do if those states meet the ozone standard. Thus, a company that wants to build a facility in the Northeast might find states upwind of New Jersey more economically attractive.

Amazingly, not one NJ environmental group, public health group, or environmental justice group requested that DEP hold a public hearing on this SIP revision, which has tremendous implications for air quality, public health, and climate justice.

As I’ve written many times, the Foundations do not fund this essential regulatory work and therefore NJ environmental groups no longer do it.

Just as remarkably, DEP used this ENGO failure to cancel the scheduled public hearing on the proposed SIP revisions. Just what the corporate polluters wanted, as they remain below the radar. Here’s is DEP’s public notice:

Take notice that the New Jersey Department of Environmental Protection (NJDEP) will not be holding a public hearing on July 13, 2021, or on another date, because a public hearing was not requested.

So, let me just highlight the major flaws in the SIP revision. Keep in mind that the core regulatory requirements that actually require that pollution emissions are reduced are established in the  “Control Measures” (Chapter 3)  and “Attainment Demonstration” (Chapter 6).

It is critically important to keep this in mind because the DEP Ozone SIP plan does include a lot of rhetoric – which has no regulatory meaning and is not enforceable – about climate change and environmental justice. Basically, DEP inserted the text of a press release in a regulatory plan – but it was done in a way that is not enforceable (or subject to EPA oversight).

This distinction between rhetoric and binding regulations exposes the Murphy DEP Ozone SIP as a highly misleading fraud.

Similarly, it is critically important to distinguish actual regulatory controls with plans to develop future regulatory controls.

It is also critical to distinguish quantified pollution emissions reductions with rhetorical assertions and aspirational goals.

The Murphy DEP plan is largely written in the future tense and does not quantify emissions reductions associated with either future proposals or rhetorical program assertions (unless all that is implicit in the models). Here is a perfect example of that:

New Jersey is in the process of preparing the following rules to address NOx and VOCs. […]

The Murphy DEP plan includes a lengthy Executive Summary that rhetorically describes various air pollution related programs and State funding for those programs.

But there is a huge difference between air pollution related programs and program funding and actual biding, quantified, and enforceable regulations on pollution reductions.

Finally, it is important to distinguish taking credit for prior accomplishments with current and binding future regulatory actions.

The Murphy DEP SIP is loaded with descriptions of prior actions, but very thin on current and binding future regulatory mandates.

For all these reasons, the headline correctly notes that the DEP SIP “ignores” climate and environmental justice – because it does so rhetorically and not with science and binding regulation.

The essential distinction that must be kept in mind while reading the document is between an enforceable regulatory standard and a press release.

So, with that context in mind, here are the major flaws.

1. DEP’s Ozone SIP Revision Ignores Climate Emergency

The DEP SIP (see Chapters 3 and 6) does not include a discussion of the relationships between ozone and GHG emissions or the climate emergency.

The DEP SIP does not include enforceable mandatory pollution emissions reductions regarding greenhouse gases and NJ’s aspirational 80% GHG reduction goal in the Global Warming Response Act.

Here’s how DEP rhetorically addresses climate: (emphases mine):


In addition to the above legislation, Governor Murphy signed Executive Order Number 100 (EO 100) on January 27, 2020 that initiated a targeted regulatory reform effort that will modernize New Jersey environmental laws. EO 100 is referred to as Protecting Against Climate Threats (NJ PACT). NJ PACT will usher in systemic change, modernizing air quality and environmental land use regulations, that will enable governments, businesses and residents to effectively respond to current climate threats and reduce future climate damages.

As a national leader in environmental protection, over the next two years, the NJDEP will create a regulatory roadmap to reduce emissions, build resilience, and adapt to a changing climate. This includes the enactment of new air pollution regulations that achieve critically needed reductions in carbon dioxide and short-lived climate pollutants (e.g., methane and black carbon) including technology-forcing measures that pave the way for a clean-energy economy. A number of the new air pollution regulations promulgated pursuant to the NJ PACT to address carbon dioxide and SLCPs will also have the co-benefit of reductions of emissions of ozone precursors.

And notice how DEP just again quietly delayed the implementation date of the climate PACT regulations by 2 years! (BTW, if you hit that link, notice that DEP has taken down all the PACT Stakeholder meeting information, including the specific lists of regulations that DEP pledged to revise to address climate. This makes it impossible for the public to see what rules must be revised and allows DEP to spoon feed single rules to manipulate perception of DEP progress. So, when they put up their monitoring/reporting rule, it makes it look like they’re doing a lot when they’re not).

2. DEP’s Ozone SIP Revision Ignores Environmental Justice

Environmental justice is given similar rhetorical treatment – where aspiration goals, programs and funding are described, but there are no quantified and mandatory actual pollution emissions reductions, especially in environmental justice communities (which are not part of DEP’s air quality monitoring, modeling, or risk assessment programs):

Finally, on February 16, 2021, Governor Murphy announced an investment of more than $100 million in clean, equitable transportation projects that will improve air quality and reduce the effects of climate change while moving New Jersey towards 100 percent clean energy by 2050 . Leveraging proceeds from RGGI and the Volkswagen Mitigation Trust Funds will bring electrification programs, equitable mobility projects, and electric charging infrastructure to New Jersey’s environmental justice communities.

There is no doubt the these are complex issues and that DEP has historically implemented a fairly rigorous air quality program.

But that was longs ago and DEP continues to rest on those laurels instead of making the radical changes demanded by the climate emergency and environmental justice.

And the Foundations, environmental groups, and media have totally abandoned this field, so there is no accountability – the entire DEP air quality planning and regulatory program has devolved to cheerleading for political rhetoric.

[End Note:

The DEP SIP also includes a pollution emissions inventory (for ozone precursors, but the thresholds are high for including an emission source).

But among all the data tables and pie and bar charts, you can not find the names and locations of individual corporate polluters or industrial facilities (aside from the consent decrees at mostly refineries).

The manner in which DEP presents the emissions inventory data provides cover for corporate polluters.

It is totally useless for citizens seeking to identify. pollution sources in their communities.

This too must change.


I have written many times about very similar failures in the NJ DEP’s air toxics regulatory program and explained why the recent NJ environmental justice law will not fix them, so I thought I’d put all those posts together here for the curious reader/activist or intrepid journalist, see:

end update]

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US EPA Touts Water Quality Improvements In Long Island Sound As A Result Of Nutrient Reduction TMDL

May 26th, 2021 No comments

After 8 Years of Denial By Christie DEP, Murphy DEP STILL Has Not Developed A TMDL For Barnegat Bay

Strict Regulation Works 

EPA Region II issued a press release today touting significant improvements in water quality in Long Island Sound. The improvements are a result of huge reductions in nitrogen pollution, which were driven primarily from a Clean Water Act mandated “Total Maximum Daily Load” (TMDL).

The States of New York DEC and Connecticut DEP adopted the TMDL, which was approved by EPA in December of 2000.

As a result, according to EPA:

Levels of contaminants in the water, sediments, and wildlife have declined over time. Nitrogen pollution is declining. By 2014, wastewater treatment facilities achieved 94 percent of the nitrogen reduction goal established in the 2000 Dissolved Oxygen Total Maximum Daily Load (TMDL), which means 108,000 fewer pounds of nitrogen were discharged into the Sound every day. Eelgrass (Zostera marina), a rooted underwater plant with ribbon-like strands that forms meadows ecologically important for fish and shellfish, increased by 4.5 percent between 2009 and 2012, and 29 percent between 2002 and 2012 (Tiner et al. 2013). Additional actions to control nitrogen runoff from streets, landscaping, and farms, along with further wastewater treatment facility (WWTF) upgrades, are underway to reach defined reduction goals by 2017, with further improvements to water quality expected.

A Tale Of Two Bays

The water quality and ecological health of NJ’s Barnegat Bay stands in sharp contrast to NY and Connecticut’s Long Island Sound, as does the regulatory responses from EPA and the State environmental agencies.

In contrast, the NJ DEP has dragged its feet for over a decade on a TMDL for Barnegat Bay.

EPA has failed to enforce the Clean Water Act in NJ and effectively oversee NJ DEP’s failure to comply with the Clean Water Act.

Almost 9 years ago, Rutger Professor Mike Kennish testified to the NJ Legislature that Barnegat Bay was suffering an “insidious ecological decline”, and warned that DEP “must seriously ramp things up” and adopt a TMDL to dramatically and quickly reduce nutrient pollution to the Bay, see:

Despite this warning, the Christie DEP avoided triggering a TMDL for Barnegat Bay, see:

After 8 years of Christie DEP denial, and 4 years into the Murphy DEP, DEP STILL has not triggered a TMDL for Barnegat Bay and is still studying the problem (see DEP:

Note the “action” DEP is proposing is not “action” at all, it’s more study. Note also the “targeted” scope, which represents a piecemeal effort that should be comprehensive in scope, like the Long Island Sound TMDL (and similarly successful Chesapeake Bay TMDL). See:

Here’s DEP’s lame “action” for there than decade long Barnegat Bay TMDL “development”:

  • Action: Continue the development of a targeted nutrient Total Maximum Daily Load

Strict regulation works. Water quality and ecological health improve.

But in 2021, DEP is still “continuing to develop” a TMDL that should have been adopted away back in 2000, like the Long Island Sound TMDL.

So, instead reductions in pollution, improvements in water quality, increasing dissolved oxygen levels, and increasing eelgrass and shellfish habitat (that EPA touts were the direct result of the Long Island Sound TMDL), Barnegat Bay still is suffering from more pollution, declining water quality, shrinking eelgrass, proliferating harmful algae blooms, and the Bay is on the verge of ecological collapse.

But DEP has not begun to implement a TMDL.

This is totally unacceptable.

In light of this stark contrast between LI Sound and Barnegat Bay, I urged intrepid NJ Spotlight reporter Jon Hurdle to ask EPA and DEP some tough questions in this email:

Jon – See EPA press release below.

EPA, NY, & Conn began the Long Island Sound TMDL cleanup plan back in 2000 – as a result:

“By 2014, wastewater treatment facilities achieved 94 percent of the nitrogen reduction goal established in the 2000 Dissolved Oxygen Total Maximum Daily Load (TMDL)”


In comparison,  after 8 years of denial by Christie DEP, NJ DEP STILL has not begun implementation of the TMDL for Barnegat Bay. DEP still “studying”! See “Phase II – Moving Science Into Action”


Why not call EPA Region II and ask them why they have not required DEP to comply with Clean Water Act TMDL requirements for the impaired Barnegat Bay? And why EPA has not yet adopted the nutrient criteria (water quality standards) that they promised over a decade ago?

Call and ask DEP when they will implement the TMDL and see water quality IMPROVEMENTS like in Long Island Sound. Instead, we get more HAB’s.


We’l keep you posted on Jon’s reply – but I’m not holding my breath.

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PSE&G Seeks Amendments To the NJ State Plan to Accommodate Wind Port At Delaware River Nuclear Complex

May 24th, 2021 No comments

State Officials Must Leverage Their Regulatory Power To Secure Public Benefits 

Source: “Japanese Nuclear Accident And US Response” – NEI, Public hearing on (4/7/11 – Trenton)

Source: “Japanese Nuclear Accident And US Response” – NEI, Public hearing on (4/7/11 – Trenton)

I just got an email from the State Planning Commission staff regarding a petition by PSE&G to amend the State Plan map to allow their proposed wind port at the location of the current PSE&G nuclear plant complex on the Delaware River.

The petition is a large document and can be found here , hit the link and scroll down to the bottom under the heading: Map Amendment/Amendments under Consideration/Lower Alloways Creek,  along with a supplemental document that OPA requested PSEG to provide. There is an extended public comment period which expires July 9 and another period before a planned September 21, 2021 SPC meeting agenda.

Because I saw rather large omissions in the application – and because this application provides an opportunity to leverage broader public policy goals, including: 1) environmental justice; 2) improvements to Delaware Bay aquatic life currently slaughtered by the nuclear power plants; 3) renewable energy and demand reduction; and 4) even a Duck Island State Park – I fired off this quick note to the State Planning Commission staff.

PSE&G has not been shy in leveraging huge concessions from BPU – including blackmail to demand billion dollar subsidies of their nuclear plants:

‘The board is being directed to pay a ransom,’ said Commissioner Bob Gordon.

They’ve dodged billion dollar compliance costs for cooling towers for the nuke plants and are killing billions of aquatic life in Delaware River and Bay (under a dirty deal supported by leading NJ conservationists).  

PSE&G received a billion dollar “stranded asset” bailout under the 1999 energy deregulation law:

PSE&G, New Jersey’s largest utility was left with more than $3 billion of such stranded assets last year as a result of deregulation, says Busch.

The “lion’s share” of this total consists of the company’s Salem, Hope Creek, Peach Bottom and Limerick nuclear power plants.

Of this, Busch tells CFO.com, state regulators allowed for the recovery of $2.9 billion, $400 million through rate increases and the rest from the utility being able to write off the remaining life of the facilities.

PSE&G transferred hundreds of millions of dollars of cleanup costs for toxic pollution at old coal gas sites to ratepayers:

“PSE&G has determined that the estimated cost to remediate all MGP sites to completion could range between $431 million and $499 million,” according to their filing.

AND after all these ripoffs, they will make billions on their new  off shore wind monopoly.

So, Enough! State officials should shake the PSE&G money tree and secure compensation for public interests.

I would think unwinding PSE&G’s recent sale of the Duck Island power plant to a warehouse developer and development of a new urban waterfront State Park on Duck Island would be a small concession:

HRP envisions redeveloping the sites as state-of-the-art industrial parks to serve the growing need for regional warehouse-distribution hubs in central and northern New Jersey.

With all the growing opposition to warehouses, how has PSE&G kept this under the radar?


Please accept the following initial comments on the subject PSEG application. I reserve my right to submit detailed comments after a more thorough review of the application.

1) the petition repeatedly states that the project is done in cooperation and/or with the support of the NJ EDA.

The applicant should be required to specify the basis for these claims and clearly describe all NJ EDA financial, legal, technical, regulatory, and related support.

2. Attachment B states: (emphasis mine)

“Successfully implementing the strategies will result in a drastic reduction in New Jersey’s demand for fossil fuels with associated air quality benefits”

The applicant should be required to provide the regulatory basis and data to support and quantify for these two claims. What does “drastic” mean? What “air quality benefits” are contemplated? Traditional criteria pollutants and/or greenhouse gas emissions? Please quantify.

I’ve reviewed the BPU EMP and have not seen any linkage (in  regulation) between implementation of off shore wind and quantitative enforceable reductions in energy demand. Same concern regarding alleged air quality benefits.

In fact, I read the BPU EMP as suggesting just the opposite by emphasizing the compatibility of off shore wind and natural gas and integrating off shore wind with natural gas powered generation.

Is the applicant claiming that there will be a 1 -1 reduction in fossil generation for every megawatt of off shore wind? If so, how will this demand reduction be enforced?

3) I saw no discussion of the potential impacts on the nuclear generation complex, particularly regarding climate change driven sea level rise, storm surge, and Delaware River flood elevations.

Perhaps those issues are addressed in the DEP permitting processes, but they should be addressed from a planning perspective as well.

4) I saw no discussion of the oversight and risk issues under the jurisdiction of the Nuclear Regulatory Commission.

That is a significant gap that must be addressed.

I recall that there were NJ legislative hearings and other investigations in the wake of the Fukushima disaster regarding Delaware river elevations and the height of the intakes at these nuclear plants. These risks are magnified by climate change. Obviously, that critical issue must be addressed, particularly in light of climate change. See: “Japanese Nuclear Accident And US Response” – NEI, Public hearing on (4/7/11 – Trenton)

5) How will the overall project address longstanding concerns regarding cooling tower issues and fish and aquatic life kills?

6) I saw no discussion of the issues related to “environmental justice”. Gov. Murphy has issued Executive Orders and there is recently enacted “environmental justice” statute.

The applicant must be required to address numerous environmental justice considerations of this comprehensive project.

Given that the concerns I raise are fundamental, I urge you to suggest that the applicant withdraw the current application and resubmit a revised application that addresses these concerns.

Finally, PSEG recently shut down the Duck Island power plant. I understand that the PSEG Duck Island property was sold to a warehouse developer. Perhaps the SPC could make inquiry into this issue, and perhaps leverage a large “deal” whereby that land sale and development proposal could be unwound and the property donated to the State to form the anchor of a new urban waterfront State Park.


Bill Wolfe

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“Green” Sycophants Provide False Praise To NJ Gov. Murphy For Killing Raritan Pipeline

May 23rd, 2021 No comments

Misplaced Focus On FERC Gives Murphy A Pass

FERC’s 2 Year Extension “does not change the state of play”

Critical pipeline decisions before Biden EPA, Congress, & federal Courts fly under the radar

[Update 1: This Harvard law piece provides context and can help explain the basics – note that Biden EPA has not repealed the Trump EPA rollback rule:

[Update 2 – I just learned that NJ AG Grewal joined 20 other States in suing the Trump EPA on this rule. Remarkably, this got ZERO media attention in NJ – I don’t think AG Grewal even issued a press releasee. See:

Will Biden AG settle these cases? Will Biden EPA repeal the Trump EPA rollback? Why the silence by the green groups and media?  end update]

Once again, New Jersey media is reporting three egregious falsehoods, while missing the real story:

1) that the Murphy NJ DEP “denied” critical permits for a controversial natural gas pipeline under Raritan Bay known as the Northeast Supply Enhancement Project (NSE);

2) that NJ DEP’s permit decision was the same as New York’s denial; and

3) that a recent FERC extension is significant.

Each one is factually false, and I went into great detail to explain exactly why the first two are false in this post.

Below, I explain why the third claim is false as well. And I mean factually false.

Here is the most recent example, in a May 21 story by NJ.com 

But after New Jersey and New York both rejected necessary permits for the project, first in 2019 and again in 2020, that federal deadline passed without the pipeline having been built. FERC’s decision this week gives Williams two more years, until May 3, 2023, to keep NESE alive and find ways to secure the state approvals.

It is unclear how Williams will convince the two states to approve its project. Last year, both states said in their rejection letters that no compelling public need for the pipeline had been demonstrated.

A Williams spokesperson said the company intends to refile for state permits in New Jersey and New York this year.

While misleading readers by claiming that “New Jersey and New York both rejected necessary permits”, the media also is diverting focus to the Federal Energy Regulatory Commission (FERC), instead of on NJ DEP and US EPA where it belongs.

The critical State regulatory decision a State regulatory power that is not federally preempted and the only thing that can really kill the pipeline – is State denial of the Clean Water  Act’s Section 401 “Water Quality Certification” (WQC) (and related State Coastal Zone Management Act approval, which NJ DEP regulations link to the same regulations on the WQC. So I use these 2 approvals interchangeably).

The basis for permit denial by both NY and NJ noted in the NJ.com story – obviously fed to the NJ.com reporter by Green sycophants – i.e. the “no compelling public need for the pipeline had been demonstrated” – is clearly federally pre-empted and can not withstand legal challenge. (and NJ DEP only made that finding because NY DEC had already denied the WQC and thus DEP claimed the application was moot).

NY State DEC denied the WQC on the merits. NY DEC also based their denial on climate issues.

The NJ DEP did not.

Basically, NJ is relying on New York’s real and enforceable denial of the WQC. I explain that in detail in this post, with excerpts and links to the NY and NJ permit decision documents:

Giving Murphy & DEP credit for this is totally misguided. A focus on FERC is a diversion. And that is exactly Ed Potasnak’s (NJLCV) role.

Incredibly, even the NJ groups that are mis-focused on and criticizing FERC, know that FERC’s role and approvals are irrelevant, if the States deny the WQC.

Here is an excerpt of a May 20, 2021 press release issued by Clean Ocean Action that documents that: (emphasis mine)

Today, FERC Commissioner Rich Glick tweeted, “Today’s #Transco Order does not change the state of play. If NY&NJ do not change their minds & grant the project section 401 water quality certificates, @FERC cannot permit the enhancement project to proceed.” 

So the latest NJ.com story is totally wrong – FERC’s 2 year extension is irrelevant – or as even FERC admits “does not change the state of play”.

I suspect that the FERC 2 year extension is designed to keep the door open in the event that the Biden EPA does not repeal a Trump EPA regulation stripping state power, or if Congress enacts pending legislation to strip states of WQC power, or if federal courts rule against these State powers (or if the Biden Justice Department settles the lawsuits).

The power of States to kill pipelines by using this Clean Water Act power is extremely controversial and under attack.

As far as I know, the Democrats in Congress have not used their power under the Congressional Review Act to kill the Trump EPA WQC stripping rule. See this WaPo story:

EPA adopted the final rule on June 1, 2020.

It does not look like the Biden Executive Order on Trump regulations specifically directed EPA to repeal that horrible final Trump EPA rule see: Sec. 7.  Other Revocations. Or it may be implicit in other sections of the Order, perhaps the litigation provisions. I don’t know.

I also have not reviewed the Trump EPA rule in detail and don’t know how it will impact State WQC power. I don’t know if State power to consider climate change – like NY did – will stand challenge by the gas industry. But I do know that these issues are very important and that they are being virtually ignored by NJ media.

Instead of attacking FERC – on misleading grounds and for the umpteenth time  – why aren’t pipeline foes publicly demanding that the Biden EPA repeal this Trump rule that stripped (or limited) States of the only power they had to kill pipelines?

The Biden administration has already backed the gas industry in litigation before the US Supreme Court, see:

Why are pipeline foes ignoring this betrayal?

These are the real issues at the federal level.

But they are being ignored by media and the green crowd, who refuse to make aggressive demands of Biden EPA.

As long as the media and NJ groups continue to focus on FERC, ignore EPA, and flat out lie about DEP’s “denial” of permits, Gov. Murphy and DEP get a pass and we miss opportunities to organize and pressure Murphy and DEP for a real pipeline kill.

This false praise and diversion to FERC is especially damaging, because, as the pipeline comply Williams stated:

A Williams spokesperson said the company intends to refile for state permits in New Jersey and New York this year.

That means that activists should be organizing and building public pressure on Gov. Murphy to deny the WQC when the company reapplies for DEP permits. The refiled permits will come in under a Trump EPA rule that stripped state power, so even stronger State leadership will be required.

Climate and anti-pipeline activists could be focused on the same issue at other NJ pipelines pending DEP approvals, including the PennEast pipeline.

Instead, they are wasting time criticizing FERC, advancing a lie about the real basis for the DEP “permit denial”, and providing false praise of Murphy’s DEP. This destroys their ability to organize around that issue.

Because if people believe that DEP already denied the WQC, then the Williams company has a free pass to work on DEP behind the scene to seek WQC approval. And they will be coming in under new federal EPA regulations that limit state power.

That is a very dangerous strategy that relies completely on NY DEC and Gov. Cuomo to hold the line.

It lets Biden EPA off the hook – they should be repealing the Trump EPA rule. The Biden Executive Order on Trump regulatory review could include that, but I’m not positive. Regardless, that Order could be used to pressure the Biden EPA to repeal the Trump rule.

It also opens the door for Murphy to point fingers and escape accountability in the event that the pipeline ultimately is approved. Because if he already killed NJ DEP permits, he’ll be able to blame NY or some other federal issue (like Trump EPA pre-emption, or FERC, or a federal lawsuit, like they are doing right now on the PennEast pipeline).

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