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Obama CEO Summit Explains EPA Regulatory Retreat

December 12th, 2010 No comments
Obama in Harrisburg, Pa. during campaign (4/19/080. Are we "on track for change" yet?

Obama in Harrisburg, Pa. during campaign (4/19/08). Are we “on track for change” yet?

[Update 2 – 12/23/10 – here’s another example, Wall Street JournalEPA Puts Some Greenhouse-Gas Rules on Hold]

Update 1: 12/20/10 – We see another major EPA fold on the horizon. EPA Administrator Lisa Jackson wrote a letter to incoming House Energy and Commerce Chairman Fred Upton (R-Mich.) on EPA’s pending regulations implementing Clean Water Act Section 316 cooling towers – read Jackson’s letter – and see our views here]

Growing more republican every day, last Thursday, the New York Times reported that the Obama EPA was walking away from major regulations, just at the critical moment when EPA needed to ramp up regulations to address global warming in light of Republican intransigence and global warming denial in Congress.

E.P.A. Delays Tougher Rules on Emissions

The Obama administration is retreating on long-delayed environmental regulations  new rules governing smog and toxic emissions from industrial boilers as it adjusts to a changed political dynamic in Washington with a more muscular Republican opposition. …

The delays represent a marked departure from the first two years of the Obama presidency, when the E.P.A. moved quickly to reverse one Bush environmental policy after another. Administration officials now face the question of whether in their zeal to undo the Bush agenda they reached too far and provoked an unmanageable political backlash.

Environmental advocates are furious. They fear a similar delay on the approaching start of one of the most far-reaching regulatory programs in American environmental history, the effort to curb emissions of carbon dioxide and other greenhouse gases.

But in a striking turnabout, the National Association of Manufacturers and the American Petroleum Institute which have been anything but friendly to Mr. Obama are praising his administration.

“Clearly, the agency has heard the calls from manufacturers” said Keith McCoy, vice president for energy and natural resources at the manufacturers’ group. “We hope this week’s announcements signal that the E.P.A. is slowing down on overly burdensome and unnecessary rules that will crush economic growth and job creation.”

Today, the Wall Street Journal reports the larger political context and industry agenda:

Obama to Convene CEO Summit

WASHINGTON – President Barack Obama will convene a one-day summit of corporate chief executives Wednesday as part of a renewed White House effort to build support among business leaders for his economic agenda.

… Presidential adviser Valerie Jarrett said, as would ideas for “a balanced approach to regulations “to promote economic growth and give business regulatory certainty and predictability while providing safety for the American people,” she said. …

The agenda Wednesday reflects concerns expressed in a “Roadmap for Growth” sent to the White House last week by the Business Roundtable. About 80 chief executives in Washington for a Roundtable meeting showed renewed optimism that Mr. Obama was serious about tackling their concerns, Ms. Schneider said.

In addition to promoting wildly destructive growth in energy demand, here’s some of what the “Roadmap for Growth” says about environmental regulations (I urge you to read the whole thing):

Unfortunately, over the past year-and-a-half, the EPA has indicated that it will propose a series of new, tighter regulations on the emissions of sulfur dioxide, nitrogen dioxide, ozone, particulate matter, mercury, GHGs and coal ash, as well as tighter regulation of chemicals under the Toxic Substances Control Act.

This avalanche of new, more stringent regulations will create additional costs for both existing and new facilities and increase uncertainty. In particular, the EPA’s proposal to regulate GHGs under the Clean Air Act threatens to impose additional costs on U.S. manufacturers while doing little to reduce global GHG emissions. The economic impacts on areas that do not meet EPA air standards will be significant, constraining economic activity and job growth. To meet its proposed ozone standard, for example, the EPA estimates that compliance costs will range from $19-90 billion.

As the U.S. manufacturing sector continues to struggle and shed jobs, the EPA’s actions will impose additional expenses on U.S. manufacturers, adversely affecting American workers and placing U.S. companies at a competitive disadvantage to foreign firms. EPA’s regulatory agenda needs to be reassessed. Proposed regulations should be more carefully calibrated to ensure that they are cost-effective, achievable, rooted in the best science, coordinated with available technology and do not unreasonably impair our economic growth or energy security.

Based on a close following of her NJ experience, during the Senate confirmation process, we tried to warn folks that Lisa Jackson had no spine and would bow to political winds (see: WHY LISA JACKSON SHOULD NOT RUN EPA – Disastrous Record in New Jersey Bodes Ill for Reforming EPA

Lisa Jackson testifies to US Senate Environment Committee during EPA confirmation hearing (1/14/09)

Lisa Jackson testifies to US Senate Environment Committee during EPA confirmation hearing (1/14/09)

I hate to say I told you so, but here is the money quote:

DEP employees describe Ms. Jackson as employing a highly politicized approach to decision-making that resulted in suppression of scientific information, issuance of gag orders and threats against professional staff members who dared to voice concerns. These reports raise troubling questions about her fitness to run an agency of much greater size and complexity…

“In our experience, Lisa Jackson is cut out of the same professional cloth as the current administrator, Stephen Johnson “ a pliant technocrat who will follow orders,” Ruch added. “If past is prologue, one cannot reasonably expect meaningful change if she is appointed to lead EPA.”

The one area where Ms. Jackson claims national leadership is the state climate change program but PEER contends that examination of her record yields paltry results:

  • DEP failed to meet its first major statutory milestone in implementing the emission reduction goals of the highly touted Global Warming Response Act. A June 30th legal deadline for producing a plan identifying the legislative and regulatory measures necessary to reduce greenhouse gas emissions still has not been met. At the same time, Ms. Jackson supported and Gov. Jon Corzine signed “The Permit Extension Act” which exempts thousands of projects from any new energy conservation, efficiency or requirements for solar heating or renewable energy;
  • New Jersey missed the historic first auction of greenhouse gas pollution allowances under the Regional Greenhouse Gas Initiative, or RGGI, this September because DEP was unable to adopt regulations to implement the pollution trading program that underpinned the auction; and
  • Jackson proposed a cap-and-trade program to reduce carbon dioxide emissions that will do little to combat global warming because it sets emissions caps above current levels and contains numerous complex offsets and loopholes that undercut its effectiveness.

“Given what actually transpired in New Jersey, putting Ms. Jackson in a key position for guiding a national global warming effort would be imprudent”

More recently, we also predicted that Jackson’s EPA would yield to White House pressure and fold on the coal ash impoundment issue (see:  EPA Caves on Coal Ash Regulation)

We predicted Jackson’s political style and EPA’s failure to reform political attacks on scientific integrity (see:  News You Won’t Get From The Hometown Cheerleaders

We reminded folks that despite opposing drilling while NJ DEP Commissioner, Jackson quietly went along with Obama’s disasterous decision to expand off shore oil drilling, just weeks before the BP Gulf blowout. We wrote:

Lisa Jackson’s January 25, 2007 testimony to US Senate Energy and Natural Resources Committee (@ page 18)- opposed off shore drilling based on based on Virginia location and proximity to NJ beaches – did she give Obama the same advice?:

“I would like to reaffirm the State of New Jersey’s opposition to oil and gas lease sales for areas off the coast of New Jersey, as well as the opening of the mid-Atlantic to offshore oil and gas development. Such an action would leave New Jersey vulnerable to damage caused by drilling related incidents in nearby waters. While I can only speak for New Jersey, other northeast states, including Delaware and Connecticut, have been just as vocal in their opposition to drilling in the  Outer Continental Shelf.

Our coast helps drive our tourism economy, which brings in more than $36 billion a year. In fact, one out of every six jobs in New Jersey is related to the Coastal Zone, making coastal revenues our state’s largest economic sector . $4.5 billion comes from commercial and recreational fishing and aquaculture alone.”

We warned about EPA’s Retreat from Environmental Justice .

We wrote about EPA’s whistleblower disclosure on EPA’s cave in to White House and gas industry pressure on gulf dispersants.

We focused on  fatal flaws of EPA’ approach to regulation of green house gas emission sources in the “Greenhouse Gas Tailoring Rule” ( See: EPA Proposed Global Warming Rule Would Protect Polluters by Locking in Loopholes

The upcoming CEO meeting and EPA regulatory policy retreat mirror Obama betrayals of his base across a wide range of issues. We were never fooled otherwise.

[Update: Bergen Record: No end in sight for Ford cleanup in Ringwood – That’s not the change that Ramapough indians were promised at Lisa Jackson’s confirmation hearing

Ramapough family poisoned by Ford Ringwood site are recognized during Jackson confirmation hearing

Ramapough family poisoned by Ford Ringwood site are recognized during Jackson confirmation hearing

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NJ Legislators Look To Block Fracking to Protect Delaware River

December 10th, 2010 No comments

Legislature engages the fracking debate, as DEP undermines DRBC regional powers

Assemblywoam Wagner (D-Bergen) testifies to Assembly Environment Committee (12/9/10)
Assemblywoman Connie Wagner (D-Bergen) testifies to Assembly Committee (12/9/10)

[Update: 12/12/10NY Times reports: New York Governor Vetoes Fracking Bill  – just as I warned, NY policy is dominated by the gas industry. NY Governor Paterson joins NJ DEP Commissioner Martin in opposing DRBC regulation on the grounds of “duplication“:

The news comes on the heels of proposed new fracking regulations by the Delaware River Basin Commission, a regional regulatory agency that oversees the Delaware River watershed in New York, Pennsylvania, New Jersey and Delaware. Those proposed rules were promulgated by three of the four governors that make up the commission.

Governor Paterson objected, stating in a letter that they “could well conflict with the technical and regulatory protocols ultimately adopted in New York, causing confusion, duplication, redundant regulatory fee assessments, differing regulations in different locations and possible mismanagement.” – ed update]

The Assembly Environment Committee met yesteday to discuss a bill (A 3314) that would prohibit the Christie Administration from supporting any withdrawal of Delaware River water to support gas well fracking in neighboring upriver states of Pennsylvania and New York.

This bill prohibits any New Jersey member of the Delaware River Basin Commission from supporting or voting to support the issuance, by the commission or any other entity, of any permit or other kind of approval to withdraw water for the purposes of hydraulic fracturing for natural gas exploration or production.

The move came the same day that the Delaware River Basin Commission (DRBC) publicly released loophole ridden draft regulations to protect the river from fracking operations.

Earlier this week, DEP Commissioner Martin issued a press release and a letter urging the DRBC to strictly regulate fracking to protect NJ’s water supply and the water quality of the Delaware River, which provides drinking water to over 3 million NJ residents.

But Martin is spinning, creating a false appearance of  supporting strong regulation, while caving in to the gas industry and promoting their economic interests over environmental and public health protection.

A close reading of the fine print reveals that Martin’s position is that DRBC basin-wide regulations should only be in place until Pennsylvania and New York adopt their own state level regulations, after which DRBC would defer to state regulators.

“New Jersey will continue to support firm DRBC regulations to protect the Delaware River until Pennsylvania and New York put regulations in place,” Commissioner Martin wrote. “New Jersey does not aim to unnecessarily delay another state’s development; we want only to ensure that any drilling proceeds in an environmentally safe manner.”

Martin is expressly undermining the regional compact and regional regulatory powers of DRBC, in favor of individual state level regulation.

That is a horrible policy, given the economic pressures and deep conflicts on interest in New York and Pennsylvania to develop economically lucrative natural gas supplies. The politically powerful gas industry has undue influence in both states, and a gold rush mentality is driving both states, particularly in light of the economic recession.

NJ must not allow our water supply to be held hostage to New York and Pennsylvania’s weak regulations and short sighted economic considerations of other states.

Instead, the Legislature must set the policy and DEP Commissioner Martin – as NJ’s representative on DRBC – must aggressively protect NJ’s interests through his powers as a member of the DRBC.

Unfortunately, the DRBC itself has caved on this critical issue of State control over drilling – including lifting their own moratorium and reversing prior positions.

This is a deeply irresponsible political capitulation to the powerful gas industry. It is an act of political cowardice under the guise of avoiding “duplication”:

The provisions of this Article rely on the state oil and gas regulatory programs of Pennsylvania and New York where separate administration by the Commission would result in unnecessary duplication. The Article supersedes the Executive Director’s Determinations issued on May 19, 2009, June 14, 2010 and July 23, 2010.

In the Gulf of Mexico, the federal Minerals Management Service engaged in lax regulatory oversight and instead acted an economic booster of BP and the oil and gas industry. Following similar “agency capture” politics, State level gas regulatory programs are even more dominated and controlled by the gas industry than federal MMS.

If enacted, the proposed Legislation would force Martin and the Christie Administration to back up their allegedly protective rhetoric with concrete actions through exercise of NJ’s considerable powers on the DRBC. NJ also can seek to convince fellow non gas state Delaware to frustrate Pennsyvania and New York’s threats to regional water supplies.

With perhaps 10,000 fracking wells using 5 million gallons of water each, that amounts to 50 BILLION gallons of water withdrawn from a basin where available water is spoken for. Recurrent droughts and migration of the salt line which could destroy Philadelphia and South Jersey water supply intakes highlight this emerging regional Water War.

DRBC is an inter-state compact designed to protect the Delaware River and assure an adequate high quality water supply, ecological health, fishing, and water related recreational opportunities in the Delaware River Basin.

At yesterday’s hearing, I joined Delaware Riverkeeper, Environment NJ and Food and Water Watch in testimony in support of the bill. (click on to listen).

cehmical adn gas lobbyists oppose A3314

chemical and gas lobbyists oppose A3314

Not surprisingly, lobbyists for the NJ Petroleum Council and Chemical Industry Council testified in opposition.

The Petroleum Council lobbyist stated that EPA found that fracking posed no risk to human health or the environment, which is as close to a flat out lie as you can get. EPA is now conducting a national study to document those risks.

Industry testimony made a flat out threat – citing conversations with Pennsylvania and New York colleagues – that any move to use DRBC to restrict gas drilling would spur retaliation that would destroy the DRBC compact.

Similarly, the Chemical Industry Council lobbyist misleadingly claimed that fracking had been in practice for more than 60 years with no harms to drinking water. This is another outright lie, because the horizontal high pressure chemical intensive fracking process is a recent engineering and technological development that is very different from historic vertical drilling practices.

I outlined the legislative and regulatory history that led to the corrupt Congressional exemption of fracking from federal environmental laws; an EPA whistleblower’s criticism of the EPA Report that Congress used to support those exemptions; the ongoing EPA national study on fracking; the numerous EPA noted deficiencies in NY State DEC’s draft “Supplemental Generic Environmental Impact Statement“; and recent political developments in New York State. (seee also” “On the Threshold of a Fracking Nightmare

I suggested amendments to strengthen the bill, as follows:

  • Amend Section 2 a at line 33 to include or any other DRBC approval“. The  objective is to expand the restriction to DRBC activities that are broader than individual project specific water withdrawals;
  • In light of yesterday’s DRBC releases of draft regulations, the bill also should prohibit voting to approve those regulations;
  • New Section 3 – “The Department of Environmental Protection shall not issue any approval pursuant to the Water Quality Planning Act (cite) for amendments to areawide wastewater or water quality management plans related to wastewater generated by fracking“.
  • New Section 4 – The Department of Environmental Protection shall not issue any approval pursuant to the Water Pollution Control Act (cite) or delegated federal Clean Water Act  (cite) NJPDES/NPDES permits to authorize the treatment of wastewater generated by fracking or the discharge of pollutants to NJ waters from treated fracking wastewaters.” 
  • New Section 5 – impose a temporary moratorium pending EPA study and adoption of national regulations under the Clean Water Act and Safe Drinking Water Act – No state agency or authority shall act to issue any state approval, permit, or financial support for any activity related to fracking unless and until the US EPA finalizes the national Hydraulic Hyrdofracturing Study and promulgates final regulations pursuant to the Clean Water Act and the Safe Driking Water Act that govern fracking.”
  • In addition to DRBC compact powers, there also are protections for downriver states under inter-state provisions of the Clean Water Act – I think they were used informally to coordinate water quality related activities with NY regarding the Ramapo and Walkill rivers, but this requires additional research.

Thanks to sponsors Assemblywomen Wagner and Huttle, Assemblyman Gusciora, and Chairman McKeon for taking this issue on. Let’s see to it that they follow through.

We’ll keep you posted as this issue develops.

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Wild Day in Trenton Today

December 9th, 2010 2 comments

Today was a wild day in Trenton.

Maybe that bad press on the bear hunt is having a perverse effect – creating the need for government officials to do something positive for the environment.

Who knows – regardless of motives, it was a big day.

Just as the legislature moved final actions on a 7 bill package to protect Barnegat Bay developed over the last 2 years, Governor Christie issued a desperate press release to announce his own 10 point restoration plan.

The Christie plan includes the shutdown of Oyster Creek nuclear power plant in 10 years and abandonment of the draft cooling tower NJPDES permit issued by DEP last December. (see safety risks)

The Assembly heard a bill to impose a moratorium on NJ DRBC member support of the controversial gas well drilling practice known as fracking.

The Senate conducted oversight of DEP’s implementation of the privatized LSP site remediation program.

The Delaware River Basin Commission (DRBC) released draft regulations on fracking.

The Senate moved a fisherman backed bill to prohibit fees for a salt water registry mandated by federal law.

Any single one of these is a significant environmental story. All in own day is unique and exhausting.

Jeff Tittel was out of town, leaving the spin cycle to Chrisite cover man Dave Pringle and the depleted press corps.

I will provide more detailed summaries and analysis of all this tomorrow – just got home and am exhausted.

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More DEP Deals – By Invitation Only, Behind Closed Doors, No Records Kept

December 7th, 2010 3 comments

DEP just quietly announced another round of sham “”by invitation only” “stakeholder” meetings. The regulatory meetings will be held behind closed doors. According to DEP, no transcripts or official records will be kept about what is said during the meetings:

Room space is limited and we are asking that only the invitees attend.

This is not a public hearing, so no formal record of this meeting will be generated, beyond a recording of those attending.

Just in time for the holidays, the next set of regulatory rollbacks will focus on:

The policy context for these meetings was established by – all of which have been written about in depth here – the following:

Despite this context – which is explicitly extremely hostile to environmental regulations – and the DEP practice of “invitation only” “stakeholder” processes that are closed to observers, critics, and the press, environmentalists again have chosen to participate and thereby legitimize this sham.

As I was involved intimately in developing the Category One program that is under attack, I thought I’d lay out some recommendations of how the C1 program could be improved. (as predicted, DEP took these webpages down – down the memory hole:

While I was with NJ DEP, I ran a program where we sought nominations from citizens to increase protections for their local streams. We were very successful (if you’re interested in this initiative, I suggest you read this DEP webpage now, before the Ministry of Truth over there finds out that it still exists. Even they will figure out that it legitimizes their worst critic and exposes serious program weaknesses – when they do, they will take that page Down Orwell’s Memory Hole):

PUBLICLY IDENTIFIED WATERS FOR CATEGORY ONE

To date, DEP has received over 47 public nominations from individuals, groups and public entities for Category One designations. These public nominations include approximately 337 named rivers and streams equaling 7,655 linear waterbody miles and 23 reservoirs, lakes and ponds representing 6,593 surface acres. A map of the public nominations is available at www.nj.gov/dep/antisprawl/c1map.html.

DEP has not had the opportunity to fully evaluate all the public nominations for Category One but will seriously consider all public nominations over the upcoming months. DEP is continuing to accept public recommendations for Category One water designations. Public recommendations for Category One water designations should be sent at this time to Bill Wolfe.

View Map of PUBLICLY Identified Waters

The 10 recommendations below could be demands by my environmental colleagues to drive the agenda forward, and deflect from further rollbacks.

As some may know, the C1 program was weakened significantly by former DEP Commisioner Lisa Jackson, without criticism by environmentalists – we wrote:

The Facts:

1. Category One program – yes DEP did propose more than 900 miles of C1 upgrades. However, DEP adopted less than 600, eliminating over 300 miles due to opposition from powerful corporate developers.

Worse, DEP revised the C1 methodology, which makes it far more difficult to protect endangered species, water supply, and to list any additional C1’s in the future. This change in methodology was needless, because NJ’s highest court upheld a challenge to the C1 rules by the NJ Builders Association. The needless DEP change resulted in the elimination of over 1,600 backlogged qualified “candidate C1 waters” pending upgrade that were listed in the March 2003 NJ Register. Bottom line: the net effect was a huge setback, which was covered up by greenscam.

This rollback in the C1 program occurred, despite a January 2007 warning letter signed by numerous groups, strongly urging DEP Commissioner NOT to make the regulatory change. That leter read:

Dear Commissioner Jackson:

In a late December meeting attended by many of our groups, the Department outlined its plan for a new process to guide the designation of Category One waterways. The meeting afforded only a cursory overview of what would represent a very fundamental change to clean water protections in New Jersey, but did provide an outline of the narrow set of water quality indicators that might serve as the basis for deciding future C1 upgrades. We have serious objections to the proposed designation process and fear that its implementation would strip New Jersey of the ability to adequately protect and maintain its high quality waterways. If enacted, this method would reverse tremendous advances in clean water protection in the state, contradict the commitments made by Governor Corzine, and leave New Jersey without the ability to adequately protect and maintain many of its most deserving waterways.

Signed: Jeff Tittel, Sierra Club, NJEF, ANJEC, Environment NJ, et al

By setting clear demands up front before going into the process, hopefully we can shape expectations and avoid a repeat of rollbacks, while holding parties accountable.

1) the Fish IBI (Index of Biological Integrity) should be used as one of the datasets in the “weight of evidence” basis for C1 designation.

2) the most recent DEP C1 methodology “improvements” weakend the method – those changes should be rescinded.

3) DEP never acted on upgrading numerous “C1 Candidate Waters” that DEP published in the March 2003 NJ Register.(Notice provided upon request).

4) recent changes to the C1Special Water Resource Protection Area Requirements” in the stormwater BMP Technical manual will weaken the implementation of C1 stream protections. They are substantive and should be implemented via rulemaking, with full public notice, public hearing, and written comment.

5) Lisa Jackson’s original 2008 AO should be restored (i.e NOT the 2009 Jackson AO, but the the original “demonstration of equivalent ecological functions” required to reduce buffer width to 150 feet).

[Update – correction – it was a 2007  Lisa Jackson Administrative Order – for analysis, see:

6) DEP should abandon the piecemeal segment specific C1 stretch designation approach and list entire C1 waters from their headwaters.

7) Current C1 rules (NJAC 7:8-5.5) do NOT include any hardship waiver provisions, yet the recently adopted stream encroachment rule allows them. The hardship provision for C1 buffers in the stream encroachment rules should be withdrawn.

8) under no circumstances should DEP allow buffer averaging.

9) “existing water quality” shall be defined as the ambient WQ that results from actual current discharges, NOT from far larger NJPDES permitted flows and loads. Any increases in discharge from existing discharges to permitted loads shall be subject to antidegradation reviews.

10) DEP should eliminate the grandfathering of existing NJPDES permitted discharges from C1 antidegradation review.

11) DEP should adopt a technical manual to implement protections for existing uses, specifically those uses that are not specifically protected by numeric water quality standards (e.g. the Milligan Farms NJPDES permit protections for bog/wood turtle case).

These are merely suggestions off the top of my head – I have written in depth in prior posts – hit the above links.

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Midnight Moonlight

December 6th, 2010 No comments

Amber

Amber

If you ever feel lonesome, and your down in San Antone,
Beg, steal, or borrow two nickels or a dime, and call me on the
phone.

I’ll meet you at Alamo mission, and we can say our prayers,
The Holy Ghost and the Virgin Mother will heal us as we kneel there.

In the moonlight, in the midnight, in the moonlight, midnight
moonlight.

If you ever feel sorrow for the deeds you have done,
With no hope for tomorrow in the setting of the sun.
And the ocean is howling of things that might have been,
And that last good morning sunrise will be the brightest you’ve ever
seen.

~~~ Midnight Moonlight by Peter Rowan (listen to “Old and in the Way” (1973) version)

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