Our Love To NoLa, As Barry Approaches

July 12th, 2019 No comments

Climate Chaos Just Beginning

A photo expression of our love to NoLa, as tropical storm Barry approaches (and the climate deniers again lie to the public):

Primarily, it takes a whole lot of denial: (from the New Orleans Museum of Art)



And architecture and street life, unencumbered by liberal false modesty:




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Murphy DEP Failing To Respond To Toxic Algae Crisis

July 9th, 2019 No comments

DEP Must Adopt Stricter Water Quality Protections

But DEP Hasn’t Even Restored Christie Rollbacks Yet

A Modest Action Agenda

[Update below]

NJ’s largest recreational lake, Lake Hopatcong – among several others – is closed due to a toxic algae bloom, see:

The algae bloom is caused by a combination of climate change, excessive nutrient & sediment pollution loads, and failed DEP regulatory policies.

DEP lacks adequate regulations governing land use, development, stormwater, water quality, septic systems, agriculture, and forestry.

Worse, DEP lacks any strategy, comprehensive plan, or enforceable regulations to address climate change, that we know will impact water resources (i.e. DEP rules mandating greenhouse gas emissions reductions or methods to adapt to climate change).

The Christie DEP not only denied climate change, but actually rolled back DEP regulations that were designed to protect water quality, including Highlands septic density, stormwater management, flood hazard, and stream buffer protections.

After the Legislature vetoed the Christie DEP septic density rollback, the Murphy DEP effectively revoked that already invalidated rule, but has yet to address other significant Christie DEP rollbacks.

Before we get the lame attempts at suggesting weak “reforms” (e.g. stormwater utilities) from the usual lame suspects (e.g. Highlands Coalition), we thought we’d lay out a serious reform package.

So, here’s a short to do list for DEP to respond to the current crisis and prevent or reduce the likelihood of future disasters.

1. “Benchmark” other State Lake Management – Water Quality Programs

One of the strongest lake water quality management programs in the country is Lake Tahoe.

NY DEC is also planning major new regulatory protections for Lake George.

DEP should review these models and adopt the strictest water quality and land use standards out there.

2.  Restore and Fund DEP’s Lakes Management Program

DEP used to have a stand alone Lakes Management Program that provided a priority focus on lakes. The program monitored water quality, provided science to support DEP planning and regulatory programs, and provided funding for water quality controls.

That program was basically eliminated and folded into the voluntary Watershed Planning Program.

DEP needs to restore and fund that program.

3. Impose a Moratorium On Logging

DEP is currently conducting several logging projects in NJ forests, including Highlands forests.

Despite the fact that logging has significant negative environmental impacts, logging projects are not subject to DEP regulations governing freshwater wetlands, stream buffers, stormwater, Flood Hazard Act and Highlands Act protections (e.g. steep slopes, vernal ponds, buffers, et al).

DEP must close those loopholes.

For example, NY State DEC is planning to adopt stricter regulations to protect Lake George water quality. The first time on the list of new regulations is logging:

  • Regs already require conservation plans, but approved by outside parties.
  • New regulation will require LGPC or delegated municipality to approve logging plans before activity occurs
  • Logging regulations not well understood or followed: Enforcement more common than compliance
  • Maintain existing standards, achieve improved results: Less violations, better practices on the land

DEP should impose a moratorium on all proposed and current logging projects until new rules are in place to protect water quality and address climate change.

4. Restore and Expand Stream Buffer Protections

Vegetated lands adjacent to streams, i.e. “stream buffers”, reduce the volume of and filter stormwater runoff, protect water quality, reduce flooding, and provide excellent habitat for wildlife.

The Christie DEP weakened existing protections of those buffers, by reducing the width where disturbance and development were prohibited from 300 o 150 feet, and by making a series of complex technical regulatory changes that served to protect water quality.

DEP must repeal those Christie DEP rollbacks and expand and strengthen stream buffer protections (as well as related protections for vernal pools and steep slopes.)

5. Repeal and Strengthen Stormwater Management regulations

The Christie DEP rolled back existing stormwater management rules.

The Murphy DEP, instead of repealing and strengthening those rollbacks, recently adopted new stormwater management rules that further weaken protections.

This must be reversed.

6. Repeal and Strengthen Flood Hazard Act Regulatory Protections

The Christie DEP rolled back existing Flood Hazard Act “stream encroachment” regulatory protections.

The Murphy DEP must repeal those rollbacks and strengthen current requirements.

7. Enforce “Total maximum Daily Load” Requirements

Under the Clean Water Act, when a waterbody fails to meet water quality standards, it is legally considered “impaired” and must undergo additional stricter requirements under a cleanup plan known as a “Total Maximum Daily Laod” (TMDL).

A TMDL establishes a science based enforceable numeric pollution diet, including daily limits on pollutant loads, both from point sources and non-point runoff.

DEP has failed miserably in the design, implementation, and enforcement of the TMDL program, particularly at lakes.

On an emergency basis, DEP can revoke and strengthen all the weak Lake TMDL’s, particularly for nutrient and sediment pollution.

8. Mandate Septic Management Districts and Septic Maintenance

A significant source of nutrient pollution in lake watersheds is overdevelopment and failing septic systems.

Septic systems must be properly designed, maintained, and regularly pumped out in order to be effective.

The location of septic systems with respect to proximity to surface waters is also important.

DEP regulates all of the above, but current regulations are far to weak and do not mandate septic pump-out or restrict proximity to streams and wetlands.

DEP can adopt emergency rules to strengthen all these existing weak septic programs.

9. Enforce Regulatory Requirements To Leverage Investments in Environmental Infrastructure

DEP enforcement of land use and water quality regulations is weak, and it has eroded over the last decade, especially after 8 years of the Christie administration.

DEP does not enforce what are known as “narrative water quality standards” or water quality standards for wetlands.

Furthermore, DEP enforcement against public entities is almost non-existent, due to the politics of local control and the concern about increasing local property taxes and/or user fees.

Finally, DEP enforcement is completely divorced from the Environmental Infrastructure Trust Program, which finances improvements.

DEP should integrate enforcement with NJ EIT, in a way that forces investments in necessary water quality infrastructure upgrades.

10. Mandate Consideration of Climate Change In DEP Regulatory Requirements & Local Land Use

Climate change is projected to increase temperature and rainfall frequencies and intensities.

Those projections reveal that current DEP and local land use controls are severely deficient.

Current DEP regulations  fail to even consider climate change.

As a first step, DEP can mandate the use of the 500 year design storm as a surrogate for increased storm intensity.

There are many other technical improvements to address climate that are beyond the scope of this brief note.

11. Mandate Water Quality Retrofit Of Existing Development

Existing development is causing the excessive nutrient loads that are driving the toxic algae blooms.

Yet DEP water quality regulations do not apply to existing development.

That must change and retrofit requirements but be mandated.

12. Regulate Agricultural Non-Point Source Pollution

Agriculture is a major source of non-point source water pollution (from application of fertilizers, pesticides, and herbicides and sediment runoff), but is exempt from DEP water quality regulations.

That must change.

This is a serious reform agenda.

We strongly urge the Murphy DEP to act on it and environmental groups and the public to support it.

[Update – I want to provide another example of gross mismanagement by DEP.

DEP adopted a “Lake Hopatcong Water Level Management Plan” back in 2011.

Here is how that plan evaluated water quality issues.

First, on page 10, note that DEP considers water quality solely from the perspective of “high productivity” exclusively in terms of supporting fisheries:

The ability of the lake to support these predators owes to its high productivity resulting in a strong forage base of fish such as alewife. These forage fish have little difficulty adjusting to the water level in the lake as it is raised or lowered. Lake Hopatcong is designated as FW2 Trout-Maintenance in the New Jersey Surface Water Quality Standards (N.J.A.C. 7:9B). This designation means that water quality in the lake is good enough year-round to support trout, though reproduction of trout in the lake does not occur probably due to the lack of suitable substrate.

Second, note that – over the objection of local advisory committee members – DEP limited the plan to “quantity issues only” and eutrophication was not even considered as a water quality issue. Absurdly, DEP claimed there would be no impact on phosphorus concentrations from withdrawing over 1 billion gallons of water!:

Water Quality

Some CAC members questioned whether the effects of a lowered water level in the Lake has water quality or ecological impacts in the Lake. These members requested that studies to be performed to quantify these effects. Readers should understand that the Lake Hopatcong Water Level Management Plan is intended to address quantity issues only.

Lake Hopatcong is currently listed as impaired for pH and Mercury. Mercury is the result of atmospheric deposition and altering the water level will not adversely affect concentrations of Mercury in fish tissue. Similarly, altering the water level will not affect its pH. Lake Hopatcong had previously been listed as impaired for Phosphorus. The Department has prepared a total maximum daily load for Phosphorus and the Lake Hopatcong Commission has prepared and is implementing a water quality restoration plan for the Lake. Reducing the water level in the Lake will not impact Phosphorus loads and concentrations in the Lake.

The exact impact of any water level fluctuation cannot be determined without detailed hydrography and substrate analysis. The biological effects of a lower lake level will depend on the severity, timing and duration of low water events. Shallow water areas are generally important for fish spawning, nursery and refuge. However, in large shallow lakes fluctuations in water level are common and the established community of fish and plants are well adapted. Fish in a lake environment will adjust to short duration changes water level by simply moving with the littoral, or near shore, zone as water levels fluctuate. The same is true of submerged aquatic plants which will grow in areas where light now penetrates to the bottom due to the lower water level.

“Well adapted” to toxic algae?

Shallow water, light, and water temperature has no impact of algae? (is that “high productivity”).


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Trump Jumps The Shark – Claims “Environmental Leadership”

July 8th, 2019 No comments

But Trump Has a Friend In “Partner” NJ Audubon


The media and the Internets are going wild right now, after in a speech earlier today, President Trump claimed “environmental leadership” (for real – no joke – you can even watch it on C-SPAN).

The NY Times reports:

for nearly an hour in the East Room on Monday afternoon, Mr. Trump sought to recast his administration’s record by describing what he called “America’s environmental leadership” under his command.

Other outlets are more honest and blunt:

The Biggest Lie in Trump’s Environmental Speech Today – And there were many to choose from

There were so many lies strung together in President Trump’s environmental speech from the White House on Monday, it’s a challenge to fact-check.

“I’m glad you finally let people know what we’re doing,” Trump said, taking the podium from his Environmental Protection Agency chief Andrew Wheeler, who was one of the string of speakers appearing Monday in an event billed as touting America’s environmental leadership. “We’re working hard, maybe harder than all previous administrations, maybe almost all of them.”

The audience laughed in response, as if in on the joke. (Since I was denied press credentials, I did not attend the East Room event and watched it on C-SPAN.)

So, we thought the time was right to remind folks that Trump has a “partner” and friend in NJ Audubon, who provide him with all the green cover money can buy.

Here’s NJ Audubon President and CEO Eric Stiles praising Trump: (A quote from NJ Audubon’s website)

“Trump National is demonstrating an outstanding commitment to sustaining native wildlife populations.” said Eric Stiles, President for New Jersey Audubon. “They are solidifying a symbiotic relationship with the surrounding community to foster environmental awareness and a conservation ethic while enhancing wildlife and natural systems in New Jersey.

Trump reciprocated the praise: (again from NJA website)

I take great pride that the … NJ Audubon recognizes and validates the environmental contribution we have made with the original design of our two world class golf courses in Bedminster. They currently provide for over 200 acres of habitat for indigenous and migratory grassland birds. With this partnership we look forward to their professional guidance in further improving and expanding the habitat at this wonderful property.” said course owner Donald J Trump.

After our criticism, NJ Audubon scrubbed the website of that Trump Partnership document, – which you can still find discussed in the NJA 2017 and 2016 annual reports – so I’m glad I took a screen shot of their “10 year agreement”


We think NJ Audubon has duped a lot of people who are unaware of this corruption.

Worse, in light of events since that original “partnership” was struck, why hasn’t NJ Audubon terminated, repudiated, and apologized for it?

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Murphy DEP Misleading The Public On Efforts to Tackle Climate Change

July 8th, 2019 No comments

No New Resources, Professional Staff, Or Regulatory Authority At DEP

Commissioner McCabe’s legislative testimony contradicts public & press statements

NJ DEP Commissioner McCabe is basically lying to the people of NJ regarding what DEP is actually doing to address climate change, and the NJ press corps in printing her lies without fact checking them (taking DEP press releases at face value and not understanding the significant substantive difference between a spun DEP press release and an official DEP regulatory document).

I realize that that’s an extraordinary claim. Extraordinary claims require significant supporting evidence, which we provide below. And we’re not just parsing words and splitting hairs here. We’re talking about blatant contradictions. Word.

NJ Gov. Murphy repeatedly has pledged to make battling climate change a top priority of his administration.

In an attempt to implement the Gov.’s commitments, last October, at a Monmouth University Summit, Murphy DEP Commissioner McCabe spoke and DEP issued a press release:


(18/P086) TRENTON – During a summit today at Monmouth University in West Long Branch, Commissioner Catherine R. McCabe announced that the New Jersey Department of Environmental Protection is launching work on a comprehensive plan to make coastal areas more resilient to the impacts of severe storms and sea-level rise.

The Coastal Resilience Plan will become a blueprint for protection of property, lives, infrastructure and natural environments by guiding policies, regulations, resources and funding.

“Our coast is an ecological and economic treasure, integral to our identity as a state,” Commissioner McCabe said during the Coastal Resilience Summit attended by coastal researchers, municipal officials and other stakeholders. “Faced with the realities of global warming and sea-level rise, it is imperative that we put in place a cohesive, integrated plan that safeguards this treasure.”

Importantly, note that McCabe’s “cohesive, integrated plan” was limited in scope to “resilience” policy in the coastal zone and did not address emissions mitigation.

More recently, last week at Stockton , DEP Commissioner McCabe recognized a far broader need for a “strategic plan for climate change”:

NJDEP Commissioner Expresses Need for Strategic Plan for Climate Change

ATLANTIC CITY, N.J. – New Jersey Department of Environmental Protection Commissioner Catherine McCabe told an audience at Stockton University that the state is in need of a strategic plan for climate change addressing mitigation and resiliency across the entire state.

The commissioner’s talk was part of the 2019 State of New Jersey Beaches forum at Stockton University Atlantic City held on July 1.

“We know there are issues of vulnerability for people and the economy,” McCabe said in a press release from the university. “We think about this a lot at the DEP.”

Aside from the fact that the legislature mandated that DEP develop such a plan 12 years ago, remarkably, McCabe casually dramatically expanded the scope of her original commitment, which was limited to coastal resilience and did not address statewide (inland) resilience and emissions mitigation.

Regardless of what the evolving specific DEP policy commitments are, the Gov.’s statements, public remarks by DEP Commissioner McCabe, and DEP press releases strongly suggest that the Murphy DEP has made significant commitments of resources, professional staff, and regulatory policy changes to address both climate “mitigation” (i.e. reduction of greenhouse gas emissions) and “adaptation” (aka “resilience”) to the impacts of climate change.

But that is all completely false – according to DEP Commissioner McCabe’s own written testimony in response to specific questions posed by the Legislature.

I’ve previously written about the fact that the 2007 Global Warming Response Act mandated the DEP develop a Statewide plan to achieve deep greenhouse gas emissions reductions:

b. No later than June 30, 2008, the department, and any other State agencies, as appropriate, shall prepare a report recommending the measures necessary to reduce greenhouse gas emissions to achieve the 2020 limit. The report shall include specific recommendations for legislative and regulatory action that will be necessary to achieve the 2020 limit.

For all the details, see:

I’ve also noted how current DEP regulations fail to address climate change, see:

So, if Gov. Murphy and DEP Commissioner McCabe are serious about addressing climate change, they must make significant changes at DEP, including an increase in budgeted resources and professional staff and comprehensive regulatory changes to DEP programs.

But, according to DEP Commissioner McCabe’s own written testimony to the legislature, NONE of that is happening (read the excerpt below).

Instead, DEP is merely shuffling the bureaucratic cards – by transferring existing staff and existing resources to a new bureaucratic entity known as the “Office of Climate Resilience” (also note that this new Office is limited in scope to “resilience” (i.e. adaptation) and not emission mitigation).

McCabe has simply bureaucratically restored what DEP Commissioner Campbell created 17 years ago! That Office, created by Campbell in 2002, was abolished by Gov. Christie’s DEP Commissioner Martin in 2010.

So, let’s get back to our analysis.

During this year’s budget process, the Legislature, through the professionals in the Office of Legislative Services (OLS) specifically asked Commissioner McCabe about the new DEP “Office of Climate Resilience”.

Here is the relevant excerpt from DEP Commissioner McCabe’s response to OLS questions:

17. The FY 2020 Budget-in Brief indicates that the department will establish a new Office of Climate Resilience. The office will work with communities to identify climate change impacts and build on the department’s comprehensive coastal resilience planning effort and its work constructing resilient structures along New Jersey’s coastline and in vulnerable locations.

  • Question: How much funding will be available for the Office of Climate Resilience? What is the expected staff size? How many staff members are expected to be hired? Have any positions been eliminated or any resources been shifted in order to accommodate for this new office? Is the Office of Climate Resilience a reorganization of existing staff and resources? How will the effectiveness of the office be measured?
  • Answer: The final funding level of the Office of Climate Resilience has not yet been determined. Funding will be from existing sources. Available sources that have funded the Office of Coastal and Land Use Planning in the past include federal Coastal Zone Management funds, CBT Watershed Management funds, and a limited amount of General Fund support provided through the Land Use and Water Resource Management programs.The Office of Climate Resilience will continue to support the Department’s obligations aspart of the National Coastal Zone Management Program, which has clearly defined deliverables. Additionally, the office will develop and implement the Coastal Resiliency Plan and provide support to municipalities for resiliency planning through technical assistance, grants and other online tools.
  • Question: Does the office plan on working with, and building upon, the efforts of the Office of Coastal and Land Use Planning, the Bureau of Flood Resilience, and the Division of Coastal Engineering? If so, in what capacity? Does the Office of Climate Resilience intend to enhance the mission of the existing offices in the department that are currently working on coastal resilience planning efforts? Are there new functions to be performed by the Office of Climate Resilience that are not being performed within the current organizational structure of the department?
  • Answer:
    Does the office plan on working with, and building upon, the efforts of the Office of Coastal and Land Use Planning, the Bureau of Flood Resilience, and the Division of Coastal Engineering? Yes.

If so, in what capacity? Almost all of the staff for the Office of Climate Resilience will come from the Office of Coastal and Land Use Planning so the work of that office will be rolled into the Office of Climate Resilience. There will be close collaboration between the Office of Climate Resilience and the Bureau of Flood Resilience and the Division of Coastal Engineering, especially in the development of a Coastal Resiliency Plan.

Does the Office of Climate Resilience intend to enhance the mission of the existing offices in the department that are currently working on coastal resilience planning efforts? The Office of Climate Resilience will reside in the Office of the Commissioner and play a cross- cutting role in working with all the DEP offices. This shift will allow for the elevation of the mission to the Office of the Commissioner to support Governor Murphy’s priorities.

So, let’s recap what DEP Commissioner McCabe told the legislature, in writing:

  • No new resources to climate change
  • No new staff to climate change.
  • No policy or regulatory commitments to implement any new DEP climate policies
  • No policy commitments regarding emissions mitigation (merely “resilience”)
  • Status quo policy (“close collaboration”) on over-emphasis of engineering approaches to the coast – in contrast to a science based policy of “strategic retreat”

Commissioner McCabe’s written legislative response to specific questions completely contradicts her public statements and press releases.

And it’s not just McCabe’s written testimony to the legislature.

As I’ve written, it is DEP’s current policy regarding the application of air pollution control regulations to greenhouse gas emissions. In case you missed that complex post, here is the DEP regulatory policy, expressed in a response to a public comment on flaws in the BL England power plant air pollution control permit issued by DEP:

“State of the art” in pollution control (SOTA) far too narrow

The DEP regulations define “state of the art” in pollution control (SOTA) very narrowly. According to DEP response to public comment:

Comment: … The commenters stated that regulated GHG emissions could be reduced or eliminated by energy efficiency, reduction in energy demand, demand management, and/or renewable energy; none of these “pollution control” methods were considered.

Response: Pursuant to N.J.A.C. 7:27-22.2, New Jersey Title V Operating Permit Requirements apply to a facility as defined in N.J.A.C 7:27-22.1. At N.J.A.C. 7:27-22.1, a facility consists of “the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons.” Thus, requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority to review an operating permit application. Also, the NJDEP cannot redefine a project to include renewable energy.

This DEP interpretation of DEP rules contrasts with a far broader approach under EPA federal rules (and the even broader basis for the Obama EPA Clean Power Plan). Pollution control technology is generally understood and defined by EPA regulations:

“the term “control technology” is defined broadly to be consistent with section 112(d)(2) of the Clean Air Act to include measures, processes, methods, systems or techniques which reduce the volume of, or eliminate emissions of, HAP through process changes, substitution of materials or other modifications; enclose systems or processes to eliminate emissions; collect, capture or treat HAP when released from a process, stack, storage or fugitive emissions point; are design, equipment, work practice, or operational standards; or a combination of the above.

Finally, McCabe’s public statements also contradict DEP’s recent adoption of RGGI regulations that virtually mirror the Trump EPA regulatory approach (as opposed to the broader Obama EPA CPP).

I call bullshit on all that.

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Murphy DEP Just Adopted The Same Electric Power Plant Pollution Standards As Trump Repeal of Obama EPA Clean Power Plan

June 27th, 2019 No comments

Exactly Like Trump EPA Rollback, Murphy DEP Rule Ignores CO2 Emissions

Exactly Like Trump EPA Rollback, Murphy DEP Rule Based Exclusively On Efficiency

Trump EPA “Heat Rate Improvement” (HRI) Same Technical Efficiency Measure as DEP

This is remarkable hypocrisy

The Murphy DEP recently adopted 2 new rules as part of rejoining the Regional Greenhouse Gas Initiative (RGGI).

One rule deals with the allowance trading program and one rule deals with the allocation of RGGI money.

I finally got around to reviewing the second rule regarding allocation of RGGI money and was shocked by what I found buried at the end of that rule.

In that RGGI rule, the NJ DEP quietly adopted regulations that set specific numeric standards for electric power generating units, see –  7:27D-3.1 State-of-the-art electric generating facilities (page 14)

While these rules deal with eligibility for RGGI money and technically are not codified as air pollution control standards, here’s why I was so shocked.

First of all, it is absurd that fossil power plants are eligible for receiving RGGI money. RGGI is designed to reduce CO2 emissions, not subsidize them.

Second, this RGGI rule making provided an opportunity for NJ DEP to incorporate the Obama EPA Clean Power Plan (CPP) CO2 emission standards in NJ DEP regulations. The Murphy DEP did not do so.

Third, instead of adopting the Obama EPA CPP CO2 standards in NJ DEP rules, the Murphy DEP rejected regulation of CO2 emissions and instead adopted the same flawed approach as the Trump EPA, limiting the application of regulation to individual plant combustion efficiency, not CO2 emissions. 

As we all know given the massive media coverage, the Trump EPA recently repealed and revised the Obama EPA “Clean Power Plan” (CPP).

That grossly irresponsible move was blasted by, among many others, Murphy DEP Commissioner McCabe.

In a June 19, 2019 “Statement, McCabe condemned the Trump EPA rule as a “betrayal” (full “statement”):

“The Trump Administration’s so-called Affordable Clean Energy rule is a betrayal of America’s future generations. By encouraging more coal-fired power generation, this federal action flies in the face of the scientific evidence that burning fossil fuels is causing climate change and harming the health of our people. Instead of facing up to the urgent challenge of reducing carbon emissions, as New Jersey and many other states are doing, the Trump Administration is taking us backwards.”

McCabe is flat out lying here, as I will show below.

NJ is not regulating CO2 emissions from power plants.

DEP just had an opportunity to adopt the Obama EPA Clean Power Plant CO2 emission standards in NJ regulations but did not do so.

Instead, NJ DEP just adopted rules that are virtually the same as the Trump EPA rules.

Here is the argument in a nutshell, which is expanded upon and documented below by excerpts and links to the specific applicable EPA and DEP regulations.

I) The Obama EPA Clean Power Plan Was Based on and Set National CO2 Emission Standards

1. The Obama EPA CPP rule set national standards for CO2 emissions from new or expanded power plants that State’s were required to meet (existing power plants were also regulated, under a separate rule).

State’s were given flexibility in how to meet these national CO2 emission standards, not only at the individual power plant level but across the entire power sector.

The Trump EPA rule summarized State options provided by the Obama EPA rule (see Trump EPA rule (at page 10)

In the CPP, the [Obama] EPA determined that the BSER for CO2 emissions from existing fossil fuel-fired power plants was the combination of: (1) heat rate (e.g., efficiency) improvements to be conducted at individual power plants, in combination with (2, 3) two other sets of measures based on the shifting of generation at the fleet-wide level from one type of energy source to another. The EPA referred to these three sets of measures as “building blocks”:

  1. Improving heat rate at affected coal-fired steam generating units;
  2. Substituting increased generation from lower-emitting existing natural gas combined cycle units for decreased generation from higher-emitting affected steam generating units; and
  3. Substituting increased generation from new zero-emitting renewable energy generating capacity for decreased generation from affected fossil fuel-fired generating units.

While building block 1 relied on measures that could be applied directly to individual sources, building blocks 2 and 3 employed measures that were expressly designed to shift the balance of coal-, gas-, and renewable-generated power across the power grid.

The broad application of the Obama EPA rule beyond “individual sources” to “across the power grid” (or “beyond the fence line”) was the key legal basis for industry, State’s and Trump’s legal attack on the Obama EPA rule.

That is an important point to note in considering the same “individual source” “combustion efficiency” approach adopted by the Murphy DEP.

2. The Obama EPA CPP national CO2 emission standards were EPA’s determination of what is known as the “Best System of Emissions Reductions” (BSER).

3. Obama EPA CPP found that BSER for fossil power plants was calculated based on CO2 emissions per energy output produced, expressed as pounds (lb) per megawatt hour (MWh)

See Table 1 on page 64512 for the specific standards for CO2 emissions rates for specific types of fossil fueled power plants:

  • pulverized coal  – 1,400 lb/MWh)
  • modified or reconstructed steam generating units – 1,800 – 2,000 Lb/MWh
  • new gas plants – 1,000 b/MWH

The takeaway and fundamental points are that Obama EPA rule regulated and set national standards for CO2 emissions.

Combustion efficiency was one tool to contribute to meeting these national emission standards.

Read the Obama EPA Rule – Clean Power Plan (CPP) – “Best System of Emissions Reductions” (BSER)

In this action, the EPA is issuing final standards of performance to limit emissions of GHG pollution manifested as CO2 from newly constructed, modified, and reconstructed fossil fuel- fired electric utility steam generating units (i.e., utility boilers and integrated gasification combined cycle (IGCC) units) and from newly constructed and reconstructed stationary combustion turbines. Consistent with the requirements of CAA section 111(b), these standards reflect the degree of emission limitation achievable through the application of the best system of emission reduction (BSER) that the EPA has determined has been adequately demonstrated for each type of unit.

II) Trump EPA Rule Abandoned Regulation of CO2 Emissions and Is Based Solely On Combustion Efficiency

The Trump EPA rule repealed the Obama EPA CPP and replaced it with a rule called the Affordable Clean Energy (ACE) rule.

The fundamental basis for the Trump EPA ACE rule is based on combustion efficiency at the individual plant, not the entire power sector.

In contrast to the Obama EPA CPP rule, the Trump EPA rule is NOT based on CO2 emissions and does not set national CO2 emission standards.

The Trump ACE rule is based exclusively on combustion efficiency, described by the technical term “heat rate improvement”  (HRI).

Trump EPA Rule -Affordable Clean Energy (ACE)

the EPA is finalizing ACE, which consists of emission guidelines to inform states in the development, submittal, and implementation of state plans that establish standards of performance for CO2 from certain existing coal-fired EGUs within their jurisdictions. In these emission guidelines, the EPA has determined that the BSER for existing EGUs is based on HRI measures that can be applied to a designated facility….

As this preamble explains, in the case of ACE, the EPA has identified the BSER as a set of heat rate improvement measures. States will establish standards of performance for existing sources based on application of those heat rate improvement measures (considering source-specific factors, including remaining useful life). Each regulated source then must meet those standards using the measures they believe is appropriate (e.g., via the heat rate improvement measures identified by the EPA as the BSER, other heat rate improvement measures, or other approaches such as CCS or natural gas co-firing).

In addition to the distinction between regulating CO2 emissions versus combustion efficiency, another fundamental difference between the Obama EPA CPP and the Trump EPA ACE is the relationship between EPA and the States.

The Obama EPA set national CO2 emission standards that State’s were provided flexibility to achieve.

In contrast, the Trump EPA does not set a national standard and allows State’s to set their own.

Finally, and this is key legally, the Obama EPA CPP rule set national CO2 emission standards that applied to the energy sector as a whole.

In contrast, the Trump EPA ACE rule applies at the individual facility level (measured as combustion efficiency HRI).

III) The Murphy DEP rule does not consider CO2 and is based solely on combustion efficiency

The Murphy DEP recently adopted 2 new rules as part of rejoining the Regional Greenhouse Gas Initiative (RGGI). One rule deal with the allowance trading program and one rule deals with allocation of RGGI money.

I finally got around to reviewing the second rule regarding allocation of RGGI money and was shocked by what I found buried at the end of that rule.

In that RGGI rule, the NJ DEP quietly adopted regulations that set specific numeric standards for electric power generating units, see –  7:27D-3.1 State-of-the-art electric generating facilities (page 14)

The promulgation of these new DEP regulations provided an opportunity for NJ DEP to adopt the prior Obama EPA CPP rules and CO2 emission standards.

NJ DEP could have simply adopted the Obama national CO2 emission standards as the minimum CO2 emissions standards to demonstrate “State of the Art” (SOTA) under NJ DEP air pollution regulations.

However, the Murphy DEP decided NOT to incorporate the Obama EPA CPP CO2 emission standards in NJ DEP SOTA or RGGI regulations.

Worse, instead of adopting the Obama EPA CPP national CO2 emissions standards as NJ SOTA, the DEP adopted new standards that ignore CO2 emissions and are based solely on combustion efficiency.

The NJ DEP combustion efficiency standards are exactly the same approach as the Trump EPA ACE rule. That approach ignores regulation of CO2 emissions and instead is restricted to improving the efficiency of fossil fuel combustion.

The NJ DEP rule also applies only to the individual power plant. Again, exactly like the Trump EPA rule.

Murphy DEP Commissioner McCabe may try to look aggressive by blasting the Trump EPA rules as a “betrayal”, but her own agency’s rules are based on exactly the same flawed approach (combustion efficiency) and also ignore CO2 greenhouse gas emissions.

This is remarkable hypocrisy.

Even more incredible is the fact that these DEP power plant combustion efficiency rules were adopted as part of the RGGI rules regarding allocation of RGGI auction proceeds. hose rules were mandated by the Global Warming Solutions Fund Act.

That is a stealth regulatory policy on a fundamental issue.

You can read the DEP rule by citing the link below and reviewing the excepted text of the rule.

Murphy DEP Rule – 7:27D-3.1 State-of-the-art electric generating facilities (SOTA)

(a) An electric generating unit is state of the art, for purposes of N.J.A.C. 7:27D-2.3(a)1i and ii, if it:


3. Demonstrates that the electric generating unit meets or exceeds the efficiency thresholds set forth in (b) below.

(b) An electric generating unit shall demonstrate that it meets or exceeds the efficiency thresholds set forth below:

1. If the useful thermal energy output from the electric generating unit is 16 percent or less of its total heat input, the heat rate shall meet one of the following efficiency thresholds:

  1. For an EGU less than or equal to 40 megawatts of capacity, a heat rate of 6,900 or less British thermal units (Btu) consumed per kilowatt hour of useful electricity output;
  2. For an EGU greater than 40 megawatts of capacity and less than or equal to 120 megawatts of capacity, a heat rate of 6,550 Btu or less consumed per kilowatt hour of useful electricity output;
  3. For an EGU greater than 120 megawatts of capacity and less than or equal to 240 megawatts of capacity, a heat rate of 6,400 Btu or less consumed per kilowatt hour of useful electricity output; or
  4. For an EGU greater than 240 megawatts of capacity, a heat rate of 5,750 Btu or less consumed per kilowatt hour of useful electricity output.

2. If the useful thermal energy output from the electric generating unit is greater than 16 percent of its total heat input, the overall thermal efficiency of the electric generating unit, considering both useful electricity output and useful thermal energy output, shall be at least 65 percent.

(c) The heat rate shall be determined at conditions representing the continuous power output rating that can be counted upon for 6,000 or more hours of operation per year at ISO conditions without exceeding normal gas turbine wear and maintenance.

(d) The heat input shall be determined at ISO conditions.

These standards could have been set, just like Obama EPA set them, as pounds of CO2 emissions per electrical output.

But DEP did not do that – they adopted the same combustion efficiency approach as the Trump EPA rollbacks.

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