WolfeNotes.com

Yesterday, the Star Ledger ran an excellent editorial on the “Regional Green House Gas Initiative” (RGGI) “Too many flaws in greenhouse gas bill“

I agree with much of the reasoning, and especially applaud the conclusion:

“Unfortunately, the proposed RGGI law being rushed through Trenton’s lame-duck legislative session reflects a miserable New Jersey political tradition. Every special interest imaginable has reached in to grab a share of the money or other benefits….

Gov. Jon Corzine’s administration is anxious to pass an RGGI bill so New Jersey can show its commitment to the regional consortium. But the current bill carries too much baggage”.

However, it is important that one key fact be clarified, because it sets the context for the entire RGGI discussion.

Public policy is about balancing of interests, so the alleged benefits of RGGI in terms of actual emissions reduction must be clearly understood.

So I must take exception to one fundamental factual claim repeated in this editorial. Due to the complexity involved, this claim tends to mislead the public about the alleged benefits of RGGI:

“The RGGI requires that power plant emissions be cut 10 percent by 2020.”
This claim is at best misleading. It is especially confusing because the public assumes that the RGGI 10% goal gets half of the the 20% emission reduction goal of the Global Warming Response Act. This is simply a false assumption that is unfortunately perpetuated by the misleading claim.

There are 3 essential elements of that RGGi claim that must be considered discretely:
a) the RGGI baseline emissions year
b) what emissions are in the baseline emissions inventory and what are not
c) the timetables

(I am leaving out the enforceability of the goal)

Taking each element of the claim under consideration, RGGI might more accurately be described generally as an:

“attempt to reduce the rate of increase in regional emissions from power plants”.

OR, if numbers are reported, RGGI could be described as:

“a plan to reduce actual and expected 2005 regional emissions by 10% between the years 2015 and 2019″.

OR if NJ’s goals under RGGI are described:

“a regional plan that would reduce NJ’s current in state emissions from certain power pants by 1% by the year 2019.”

The essential confusion stems from the fact that the RGGI baseline emissions inventory is flawed.

RGGI only included emissions from in state power plants larger than 25 megawatt capacity. Smaller in state emission sources were not included nor were those of out of state power plant emissions that occur due to large imports of electric power from mid-western coal plants.

RGGI inventory included actual current emissions plus those that were expected to occur. As a result, when the RGGI program agreement was fleshed out during 2004 – 2006, the emissions inventory was larger than actual emissions. Because emissions have gone down since then (contrary to projections) the baseline is even larger than current actual emissions.

This has been described as a “cushion”.

But what this means is that – for NJ – that the 10% emission reduction goal is in reality a 1% goal. See: Emissions proposal misses point

Because the Corzine Global Warming Response Act calls for a 20% reduction from total emissions by 2020, the RGGI goal must be placed in context.

RGGI does not govern all emissions. RGGI applies only to certain emissions in the electric power sector. But other sectors, like transportation and buildings, account for more than 2/3 of total emissions. This means the RGGI 1% emissions reduction is for less than 1/3 of the total.

So, we’ve got a long way to go to get there and RGGI is a very small step along that road.

Because RGGI calls for a 9% INCREASE in current power plant emissions and excludes emissions from electric imports, I think it is a step BACKWARDS along that road.

All this confusion could be easily avoided and real issues clarified if BPU had released the long awaited Corzine Energy Master Plan and DEP released the emissions inventory
BTW, DEP conducted an emissions inventory way back in 1997 under the Whitman Administration, a fact that has been completely ignored.
What ever became of that emissions inventory?

How does it compare to the new emissions inventory mandated by the 2007 Global Warming Response Act? (anyone remember the 60’s band “Ten Year’s After’? )

*[Updated below]

I was baffled by yesterday’s Bergen Record story that reported that NJ Senator Frank Lautenberg and activists had declared victory on chemical plant safety legislation:

“New Jersey activists and officials declared victory Thursday in a fight to prevent the federal government from superseding state rules on chemical plant security.

The new law does allow Homeland Security to override state rules if there’s “an actual conflict” with federal measures. (See: “Chemical plant measure hailed as victory”
http://www.northjersey.com/page.php?qstr=eXJpcnk3ZjczN2Y3dnFlZUVFeXkzJmZnYmVsN2Y3dnFlZUVFeXk3MjM4NjE5JnlyaXJ5N2Y3MTdmN3ZxZWVFRXl5Mg

Now wait a minute – how could a law that expressly provides for federal pre-emption possibly be described as a victory?

So, I did some digging and here’s what I found:

Keep in mind that we are talking about chemical plants that could kill over 100,000 people.

First, for the legal eagles out there, here is the actual text of the law, from Lautenberg’s Office – basically, the language leaves the door open to industry legal challenges of State laws and allows latitude in how the Bush administration interprets the law.

There are several other flat out prohibitions in the bill, but preemption is not expressly prohibited, thereby leaving ambiguity and wiggle room:

SEC. 534. Section 550 of the Department of Homeland Security Appropriations Act, 2007. (6 U.S.C. 12110) is amended by adding at the end the following:

“(h) This section shall not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to chemical facility security that is more stringent than a regulation, requirement, or standard of performance issued under this section, or otherwise impair any right or jurisdiction of any State with respect to chemical facilities within that State, unless there is an actual conflict between this section and the law of that State.” (emphasis supplied)

Second, because it may have been mistakenly reported that this language was opposed by the chemical industry, here is the chemical industry’s testimony. Note that the adopted language is completely consistent with the chemical industry’s position in support of “conflict preemption“:

“The discussion draft does contain a number of provisions that would be improvements over [existing laws]. Most important, it would confirm that the federal program would preempt state programs where the latter “conflicted with the purposes of this title” (p. 31). Such ‘conflict preemption’ is very important to facilities, and yet gives state and local government broad leeway to craft non-conflicting programs.”

See: “Chemical Security: The Implementation of the Chemical Facility Anti-Terrorism Standards and the Road Ahead.”
December 12 hearing transcript: http://homeland.house.gov/hearings/index.asp?ID=108

Last, it is widely agreed that the Bush Administration and so called Republican “conservatives” in Washington have shown contempt for State laws that conflict with their pro-business and anti-regulatory agendas.

Bush repeatedly has wielded executive power to impose this agenda to over-ride laws enacted by Congress, to skirt decisions of the Courts, and to ignore public opinion. Thus far, Democrats in Congress have been unable to stand up to and reverse the Bush agenda.

So it doesn’t take a lot of imagination to see how Bush would impose the chemical industry’s agenda.

Just last week, in perhaps the most egregious example, Bush killed a California clean air law – joined by 16 other states – designed to slash auto emissions. Shockingly, Bush administration officials defended the “California car” decision because it would conflict with a uniform national approach and conflict with new energy legislation signed by Bush that sets new national auto mileage standards. (see LA Times: “EPA chief is said to have ignored staff”
.http://www.latimes.com/news/local/la-me-epa21dec21,0,2062514.story?coll=la-home-center

Given this history, who could be surprised by or trust the Bush Administration?

One would have thought that the pre-emption issue would have been dealt with clearly, with an absolute prohibition on federal pre-emption of State laws.

Unfortunately, it appears that exactly the opposite has occurred.

Now that’s some victory.

(Note: for further reading, please refer to the December 12 House Committee hearing transcript linked above, and the testimony of Gerald Setley, vice president of the International Chemical Workers Council and the NJDEP:

1. “By law, those DHS [chemical safety] regulations expire in October 2009, and Congress is laying the groundwork for legislation next year to make the plant security rule permanent. Currently, DHS cannot mandate IST. Gerald Setley, vice president of the International Chemical Workers Council, called the existing chemical security program “woefully inadequate” and said major changes should include an IST requirement and explicit language allowing states to craft antiterrorism programs that go beyond the federal standards.

“House Examines Chemical Plant Security – Industry wants Congress to give DHS regulations a chance”
http://pubs.acs.org/cen/news/85/i51/8551notw3.html

For DEP’s admission of program weaknesses, note DEP’s own testimony:

2. “I must emphasize that the inherently safer technology requirement under the [NJDEP] Standards represents a practicability test; it is not mandatory that a covered facility implement IST, only that they evaluate..….But these measures alone are merely a starting point. Our knowledge of both the threat and the appropriate response is evolving daily. As we implement the “Best Practices” and work with facilities on site-by-site review of security vulnerabilities, we also have begun a public process to review what additional regulatory measures may be appropriate to harden potential targets, to reduce risk to surrounding communities, and to involve workers and communities in the process. ”
http://homeland.house.gov/hearings/index.asp?ID=108

3. For a critical assessment of NJ’s chemical safety program, see:

Chemical plant safety decisions privatized in NJ
http://blog.nj.com/njv_bill_wolfe/2007/12/chemical_plant_safety_decision.html

*[Update – based on comments and reflection, I failed to make a basic distinction and provide context at the outset of this post. In terms of why I was baffled by claims of “victory”, there are 2 distinct issues: 1) pre-emption and 2) the overall NJ and national chemical plant safety program.

With respect to the issue of pre-emption, I do not agree that the language adopted represents a victory. It may be the best pre-emptio language they could get (there are 3 different pre-emption legal frameworks and challenges that could be brought, and the “actual conflict” basis is the least threatening to NJ’s program), but that does not make it a victory.

Congress could have expressly prohibited pre-emption by DHS rules. Most other federal environmental laws do not even consider pre-emption of state laws, and instead explicitly allow state laws to be more stringent; mandate that state laws meet federal minimum standards; and allow for delegation of federal law to states. Courts consider state law pre-emption issues on a case-by-case basis, under US federal constitutional law (e.g. Supremacy clause and inter-state commerce clause challenges).

States do not need Congressional permission to regulate chemical plants because States have police power under State Constitutions which is recognized by the US constitution. SO this whole pre-emption issue is a chemical industry threat and was avoidable. It diverts attention from larger safety/risk issues.

Given all the flaws in the national and NJ chemical plant safety programs, to declare victory amounts to a Bush “Mission Accomplished” on the aircraft carrier flight deck with respect to Iraq war victory.

Magicians – like pick pockets, three card monty artists, and politicians – are able to pull off tricks because they are masters of deception and diversion: the left had diverts your attention while the right hand picks your pocket.

While no one expects the press to cover street level flim flam artists, we all do expect that they will expose (and certainly not cover for) the frauds and diversion of the politicians in Trenton.

So, with that expectation in mind, let’s examine just one recent episode that I view as part of a disturbing and expanding pattern (there are several more examples I will write about that fit this pattern).

Try this one out for size: At the same time Governor Corzine and DEP Commissioner Lisa Jackson were touting their leadership in reducing global warming green house gas emissions and commitments to clean air for Warren County residents, DEP quietly increased the capacity of the Warren County garbage incinerator by 22%.

Not only that, but DEP denied the request of the Warren County Environmental Commission to hold a public hearing on the unilateral DEP permit modification to approve the increase (a most convenient way to avoid critical public scrutiny from pesky environmental advocates and the press).

More burned garbage translates directly into more global warming emissions, more air pollution in Warren County, and less recycling – exactly the opposite of what the Governor and DEP Commissioner claim to be trying to achieve.

While ignoring the Warren County garbage incineration story (DEP does not issue press releases touting their hypocrisy), last week the Star Ledger editorial “Applying air pressure” bemoaned the plight of Warren County residents and applauded DEP for its leadership on clean air:

“Folks in Warren County on the border with Pennsylvania have long had to suffer with pollution from dirty coal-fired power plants just on the other side of the Delaware River…
Fortunately, New Jersey and some other states have taken matters into their own hands. Warren County residents should benefit.

New Jersey regulators a few days ago filed suit against Reliant Energy Mid-Atlantic Power Holdings, the company that owns a coal-fired power plant on the Delaware in Portland, Pa.

The lawsuit is simple: It says Reliant should install up-to-date pollution controls or shut down its dirty units. The reason is simple, too: Reliant did lots of work on the plant, increasing its ability to pump out power. But the company didn’t install new anti-pollution devices, as federal environmental law requires.”
http://www.nj.com/opinion/ledger/editorials/index.ssf?/base/news-2/1198474502279530.xml&coll=1

But it’s always a lot easier for DEP to point fingers at the Bush Administration and to file lawsuits against out of state polluters, than it is to take enforcement action right here at home in New Jersey.

The Jersey polluters have lobbyists and political power. Enforcement of pollution controls at NJ sources comes with a real economic price.

These realities tend to dampen the enthusiasm of the Trenton regulators, who frequently put economic and political interests above protection of public health and the environment.

It takes real leadership and commitment to enforce NJ’s environmental laws against NJ sources.

But going after the out of state pollution sources and the Bush administration are a free ride.

And the press needs to start recognizing this fundamental distinction and stop applauding the status quo.

We all lose when public relations displaces public policy.

Bill Wolfe debates his former boss DEP Commissioner Brad Campbell on Earth Day 2005. Campbell was adept at public relations

This morning the Star Ledger reports breaking news that:

“Firefighters are still battling a large blaze at the Griner tire facility in Cumberland County, which officials say was first reported late Saturday night.”

Tire pile fires poison air and water quality, and pose serious public health and safety threats.

This fire was totally preventable. It sheds light on another longstanding deficit and lax oversight by the Department of Environmental Protection (DEP).

Regulation of tire piles is not a local issue. According to DEP’s own records, there are at least 18 ” major” illegal tire piles in New Jersey, mostly in South Jersey.

This list includes the tire pile now on fire in Cumberland County (see Table E-3
http://www.nj.gov/dep/dshw/recycling/swmp/doc/section_e_06.doc

Read more…

The Star Ledger editorial today “A Right to Chemical Security” begs many questions and poorly serves readers.

As discussed below, the editorial’s focus on the federal pre-emption issue obfuscates the real issues and reinforces misunderstandings about New Jersey’s’ state level chemical plant security rules.

The editorial also fails to hold Governor Corzine accountable for a voluntary chemical plant safety policy that directly contradicts the mandatory policy he advocated as a US Senator and as a candidate for governor.

Let’s take those issues on one by one:

In appropriately arguing in favor of the need for legislation to prohibit the federal Department of Homeland Security from pre-empting state laws, the editorial misleads readers about the nature of New Jersey rules:

“Pre-emption also would permit chemical firms to avoid rules that force them to comprehensively review whether they can switch to less dangerous technology or materials. New Jersey has such rules; the federal government does not.”
[…]

“For some six years, New Jersey has had the toughest chemical security rules in the nation, requiring high-risk facilities to work with the Department of Environmental Protection and other agencies to protect chemical plants and to analyze the potential for using safer alternatives to current chemicals or processes.”

The state Department of Environmental Protection (DEP) does in fact have rules that do require that certain chemical plants evaluate so called “inherently safer technologies.” These evaluations do provide industry with the opportunity to “switch to less dangerous technology or materials”.

But those DEP rules do not require that the plants actually implement safer alternatives, nor to they give DEP any power to require safety improvements. The chemical industry’s own spokespersons have stated that the NJ rules have not cost the industry any additional money or triggered any additional safeguards than those contemplated under the industry’s own voluntary “Responsible Care” code of conduct. The Responsible Care program has been exposed as a public relations effort:

(see: Responsible? Care?: As bad news mounts and polls head south, chemical companies spend millions on ‘public perception’
http://www.chemicalindustryarchives.org/dirtysecrets/responsiblecare/1.asp

Under DEP rules, the chemical plant is unilaterally allowed to reject technologically feasible safer alternatives based on their cost, no matter what the risks are to the public.

The rules do not even require a cost benefit type of analysis. The evaluations are based on the industry’s own “Responsible Care” engineering and safety protocols. The industry uses its own guidelines and standards to identify alternatives and then is given a free hand to chose whether to make safety changes.

Placing complete control in the chemical industry’s hands is exactly what they asked for. This policy approach essentially privatizes chemical plant security decisions and puts the chemical industry in charge of public safety.

As the editorial advocates, of course Congress must not pre-empt New Jersey’s ability to enact stronger chemical safety laws. But the real issues are whether New Jersey’s laws are mandatory; whether they allow economic considerations to trump public safety; and whether they put the chemical industry in charge.

On December 28, 2006, the New York Times quoted Corzine admitting that he bowed to the chemical industry and adopted a voluntary, economically driven policy:

“As a United States senator, Jon S. Corzine was relentless in warning that the nation’s chemical plants, and the railways that carry their potentially dangerous cargo, are vulnerable to a devastating terror attack.
But in the 11 months since he was sworn in as New Jersey’s governor, Mr. Corzine has taken a far more measured approach to the issue, disappointing some of the chemical security experts who helped him form his proposals in the Senate.
[…]

“…advocates say that the Corzine administration has made little tangible progress on increasing security at the 15 New Jersey chemical plants, and that each plant poses a threat to 100,000 people or more. They accuse the governor of being too intent on appeasing the chemical industry, which provides more than 80,000 jobs in the state.
[…]

Richard Canas, director of the New Jersey Office of Homeland Security and Preparedness, said the Corzine administration has had difficulty convincing businesses that switching to safer technology is worth the price, which can run into tens of millions of dollars at a single plant. “To the extent that replacing technology is going to break the bank, they’re not willing to go that far,” Mr. Canas said. “It’s always money that impedes what you’d like to do.”
[…]

“…the governor said that he did not believe it was necessary to further strengthen state laws by mandating a switch to safer technology.

“I think people in the industry are worried that if we don’t get results we may use the super hammer,” he said, referring to such a mandate. “So we’ve gotten much better response because we’ve done this in a sensible, realistic manner.”

see: Corzine’s Chemical Security Stance Draws Scrutiny a Year Into His New Job”
http://www.nytimes.com/2006/12/28/nyregion/28homeland.html?_r=1&oref=slogin>

This is an insane policy. It puts the chemical industry in charge of public safety and allows the chemical industry’s profits to outweigh public safety.

The real story here is that Corzine’s program puts industry profits before the public’s right to safety.

And that is exactly the opposite of the policy he advocated as a US Senator and Gubernatorial candidate.