WolfeNotes.com

Reading the various news stories on the open space funding debate got me to thinking about how contrasts in the views of the various players are quite revealing.

The dominant view that seems to be carrying the day – and it’s a worldview that is not just limited to the open space funding issue – is that of the corporate business community.

Some call that a Neoliberal, anti-tax, anti-government, reactionary, austerity worldview – promoting a hyper-individualist competitive “race to the bottom”.

But don’t accept my labels, let’s listen to the words of the NJ Chamber of Commerce, who oppose the “slimmed down scheme”, the most recent open space funding compromise: (NJ Spotlight)

Nevertheless, the new slimmed-down scheme still drew sharp criticism from business groups and others.

“We’re in a fiscal crisis right now, but probably it is only going to get worse,’’ said Michael Egenton, a senior vice president of the New Jersey State Chamber of Commerce, said at a public hearing Monday that allowed the measure to move forward.

The Chamber’s comment prompted this sharp rebuke in the Spotlight comments section, by yours truly:

Mr. Egenton’s so called “fiscal crisis” has not stopped the Gov. from giving corporations over $2 billion in tax breaks.

Business leaders not only completely lack any vision about the factors that attract a quality work force and business climate, but their greed and self interest is unbounded.

Education, vibrant cities, arts, and accessible high quality natural resources are the factors people and families consider in where they choose to work and live.

People and small businesses look for good paying jobs with benefits and security and opportunity and their middle class incomes drive economic demand.

In contrast, all the business community advocates is an accelerating race to the bottom: slashing environmental regulations, defunding open space and infrastructure, corporate welfare, tax cuts for the wealthy, privatized two-tiered segregated education systems and urban centers, and poverty wages.

Notice how that comment transcends the fiscal austerity argument, and situates the open space funding debate in a far broader ideological, political, and policy context.

From this broader critical perspective, the business community’s fiscal argument is tied to ideological beliefs, corporate greed and power, corporate policy agenda, and hypocrisy.

From this critical perspective, other policy issues and concerns are brought into the debate: education; urban revitalization; housing;  segregation; environmental justice; infrastructure; labor; arts; politics; and the need for a just and equitable distribution of wealth (i.e.to stimulate what economists refer to as “effective demand”, a Keynesian concept that supports a democratic bottom up demand driven approach to economics).

Politically, this kind of critique facilitates recognition of common interests, the need for collective action, and the imperative to form coalitions with other groups with shared interests that are harmed by the same corporate Neoliberal austerity worldview.

But the elitist proponents of open space make far narrower and less adversarial and less political arguments.

Compare my rhetoric and analysis above with the softer “bipartisan” “mainstream” and narrower voice of the “Keep It Green” folks (but I do hear a faint echo in Dr. Hughes’ comment):

“Right now, we are on track to become the first state in the union to run out of open space. I love New Jersey being first in a lot of things, but that’s not where we want to be.” That was former Gov. Christine Todd Whitman speaking at a New Jersey Conservation Foundation event a few years ago.

Former Gov. James Florio agreed with Whitman, adding that it is incorrect to believe that the state must choose between a healthy economy and a healthy environment. “We’re not going to have one without the other,” he stated.

“Knowledge-based, post-industrial businesses tend to locate in high-quality environments,” noted Dr. James Hughes, dean of Rutgers’ Bloustein School of Planning and Public Policy. “To the degree that investments in open space and farmland preservation produces a higher quality environment, it’s going to make New Jersey that much more attractive for these industries of the future.”

Maybe – just maybe – the Keep It Green coalition is not able to move the Assembly due to the narrowness of their vision – and the appearance of a selfish and elite perspective.

I would have thought they would have learned something politically – if not policy and programmatically – from the  recent failure of the sales tax diversion.

Apparently not.

DEP Digs In Even Deeper in Fenimore Landfill Fiasco

What Has Become of the Legacy Landfill Law?

Didn’t DEP learn that allowing old closed landfills to reopen and accept more waste in order to generate funds is a very bad idea?  

[Update below]

You really can’t make this stuff up. Follow the latest foolishness in the Fenimore Fiasco.

The huge – almost unprecedented – controversy surrounding Fenimore landfill in Roxbury Township has gotten tons of media attention, emergency legislation, and significant DEP resources.

The recent continuing “in your face” campaign of strenuous protests by scores of Roxbury residents and the local group REACT have prompted Gov. Christie’s personal involvement.

Residents are outraged not only by the rotten egg smell in their town, but by how they have been treated by the DEP and completely shut out of State decisions regarding cleanup of the mess DEP made. Star Ledger reports:

“The second area of concern is with numerous aspects of the basic DEP decision-making process: the lack of transparency throughout this entire process; how this area was designated a brownfield; how Fenimore Landfill was approved to be reopened in violation of the State’s current rules and regulations; how a former felon was permitted to operate the landfill; the poorly considered decision to dump Sandy debris there; the DEP’s failure to keep the public adequately informed of the issues; and a suspicious refusal to provide soil samples of the area.”

Last summer, in one of the most aggressive, rapid, and successful legislative campaigns in NJ environmental history, well organized, well informed, and angry local activists successfully garnered rare emergency legislation, see  N.J.S.A. 13:1-125.1, known as the Legacy Landfill Law, enacted on June 26, 2013.  (see P.L. 2013, c. 69).

The bill that Gov. Christie signed into law was sponsored by Senate Environment Committee Chairman Bob Smith. Keep that in mind as we tell the story of the latest outrage in this outrageous story.

Recently, the Legislature again stepped into the fray – but this time, instead of passing emergency legislation giving DEP power to fix the problem, this time the environmental committee chairs from both Houses  (Senator Bob Smith and Assemblywoman Grace Spencer) wrote Governor Christie to demand an investigation by the Attorney General into the DEP’s handling of the Fenimore fiasco, see:

• Legislators Want AG to Investigate How State “Grossly Mismanaged” Fenimore Landfill

Given this ugly history and controversial context, the latest DEP move has me scratching my head – I am absolutely dumbfounded as to how something like this could possibly happen. Let me now explain – you really can’t make this stuff up.

As we noted, the local residents’  group REACT was the force behind passage of the “Legacy Landfill” law last June. That law requires DEP to take action, including adoption of new regulations required to implement the law.

DEP finally got around to forming a “Stakeholder” group to develop those regulations to implement the law 9 months later in March 2014.

There have been significant recent changes to how DEP develops regulations.

Specifically, Gov. Christie mandated, among other things, that DEP form “Stakeholder” groups before proposing any new regulations, under Executive Order #2.

The policy objectives of the Stakeholder process are to provide “regulatory relief” and “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”  – here is the applicable language from EO #2:

1. For immediate relief from regulatory burdens, State agencies shall:

a. Engage in the “advance notice of rules” by soliciting the advice and views of knowledgeable persons from outside of New Jersey State government, including the private sector and academia, in advance of any rulemaking to provide valuable insights on the proposed rules, and to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.

DEP Commissioner Bob Martin has decided that his DEP “Stakeholder” meetings required under EO #2 are to be conducted “by invitation only”.

Virtually every one of dozens of DEP Stakeholder groups are dominated by regulated industries, many with no environmental or public interest representative at all – none (you can take a look for yourself here).

So, who did DEP invited to the “Legacy Landfill” law Stakeholder rule development meetings?

Sometime in March 2014, DEP wrote this invitation letter:

So, I was curious – who did DEP invite?

I went to DEP’s website to find out. But there are no  attendees; agenda’s; meeting recordings/notes/minutes; technical support documents; and consensus or going forward rule development plans posted there.

Shockingly, after finding no information on the “Stakeholder” page of DEP’s website, I reached out to ask and neither the local group REACT or the law’s sponsors Chairman Bob Smith knew anything about these “by invitation only” DEP “Stakeholder” meetings.

How can something like that happen? Who did DEP invite? Landfill owners and operators? Christie Crony & Roxbury Mayor Rilee?

This is simply stunning arrogance and/or gross incompetence –

If something like this doesn’t spur legislative oversight hearings, then virtually nothing will.

BTW, to top it off, DEP’s invitation letter was sent by email, with this OPRA exemption warning:

This E-Mail and its contents may be Privileged & Confidential due to the Attorney-Client Privilege, Attorney Work Product, Deliberative Process or under the New Jersey Open Public Records Act.

Just curious: this letter and process came from DEP’s “”Manager of Constituent Relations”. Wonder what it takes to get fired at DEP?

 [Update – 6/22/14  – I just read this post this morning and realized that in my focus on how DEP excluded REACT, I overlooked a significant policy issue.

DEP is taking the opportunity to develop rules that would vastly expand the scope of the “Legacy Landfill” law in a way that seems intended to repeat the Fenimore Fiasco.

Specifically, the Legacy Landfill law applies only to landfills that “ceased operations” prior to 1982 – here is the law’s definition:

But the DEP letter describes a landfill initiative that is far broader than “Legacy Landfills”, but all “closed landfills”

The Department is re-opening the Solid Waste rules in order to implement requirements and controls established for legacy landfills and closed sanitary landfill facilities that accept the placement of new materials.

So, the DEP is contemplating rules for many more landfills than just legacy landfills –

Worse, it seems that the intent is not limited to merely cleaning up pollution from legacy landfills, but to allow new disposal activity  (i.e. “accept placement of new materials”) at previously closed landfills!

Didn’t DEP learn that allowing old closed landfills to reopen and accept more waste in order to generate funds is a very bad idea?  – end update]

The regulatory game is rigged – by and for the polluters and corporations. Period.

Regulatory agencies like the EPA, DEP, and Pinelands Commission do NOT consider or regulate greenhouse gas (GHG) emissions during current environmental permit reviews of major GHG emission sources, like power plants, industrial facilities, pipelines, roads, and new development.

GHG emissions are not regulated under current environmental permit reviews – by EPA or DEP.

The same fatal gap exist with respect to considering the economic impacts of what the economists call “market failure” – “externalities” and “public goods” – that have been quantified in what is known as “the social costs of carbon” (SCC).

NJ DEP has had authority to regulate GHG emissions since 2005, when DEP adopted regulations that defined GHG’s as “air contaminants” (i.e. regulated “pollutants”) under the State Air Pollution Control Act. But DEP has done nothing with this power for almost 10 years now.

EPA’s recent rules on GHG emissions from power plants may soon change that, but only with respect to emissions from power plants. Other sectors and major GHG generating activities and emission sources that require various environmental permits remain unregulated.

And EPA’s application of the “social costs of carbon” (SCC) was limited to the economic impact evaluation, not as a regulatory basis.

For example, the failure to consider GHG emissions was exposed as a egregious flaw in environmental reviews of the South Jersey Gas Co, pipeline to repower the BL England plant.

GHG emissions from the fracked gas distributed by the pipeline, GHG emissions from the pipeline itself, and GHG emissions from burning the gas at the BL England plant itself were not considered and/or regulated by BPU, or by the DEP air quality analysis, or by the Pinelands Commission’s review.

Recently, I learned of a Massachusetts State law that does consider and enable regulation of GHG emissions. The Massachusetts law:

incorporates climate change impacts into environmental review procedures … legislation directs agencies to “consider reasonably foreseeable climate change impacts, including additional greenhouse gas emissions, and effects, such as predicted sea level rise. 

NJ has nothing like that Massachusetts law and I’ve seen no evidence that anyone is interested in passing similar legislation in NJ.

So, given this huge failure by federal and state regulators to consider SCC or regulate greenhouse gas emissions during environmental permit reviews, while just now working on an unrelated water quality issue, I was disgusted to read how both EPA and DEP allow major polluters to use increases in GHG emissions.

But the GHG emissions and “SCC” are not considered so that EPA or DEP can regulate and reduce them and use economic harm as a basis to regulate, but rather just the opposite: as a reason to oppose the imposition of new water quality protections.

According to an analysis requested by EPA and prepared by the “NJ Dischargers Group” (a group of sewage treatment plants), new nutrient pollution controls required to protect NJ’s rivers would increase emissions of greenhouse gases:

So there it is – see the table above. It is obvious and in plain sight – a huge structural bias in regulatory review policies. And note how the polluters quantified the GHG emissions in pounds to make them seem larger.

The NJ HDG analysis, again to magnify GHG emissions, even went so far as to highlight “emergent” issues, something they  virtually never do:

Another environmental consideration pertaining to greenhouse gas emission is that carbon- starved denitrification processes have greater potential to release intermediate NxO instead of nitrogen gas. These intermediate NxO gasses have a significantly greater adverse impact from a “greenhouse gas” perspective compared to carbon dioxide (on the order of 200 times that of carbon dioxide). This is an emerging issue in wastewater treatment, and more research is needed to accurately quantify the amount of NxO that could be generated via denitrification.

Given that acknowledgment by the polluters themselves, do you think EPA is in a hurry to regulate GHG emissions from wastewater treatment plants or NxO gasses?   Hell no.

GHG emissions can not be considered and used as a basis to modify or deny any environmental permit.

But EPA and DEP are willing to consider GHG emissions as a reason to forego, weaken or delay long over due water quality protections.

The regulatory game is rigged by and for the polluters and corporations. Period.

Alexauken Creek, West Amwell – Category 1 stream – downed trees provide habitat.

Recently, however, new laws continue to limit the availability of development in green spaces. More water bodies are now designated as Category One (C1), which have buffers of as much as 300 feet from the water, effectively eliminating those areas from being developed. In 2004, with the stroke of a pen the state preserved hundreds of thousands of acres in the Highlands region, rendering much of the area off-limits to building and hundreds of thousands of acres more subject to further planning requirements before development may occur.   ~~~~ Read the entire whine

Reading that MAKES ME SMILE! (listen) – and I used to be glad to go to work.

Ah, but that was then and this is now.

Does anyone still remember what the Category 1 program was?

The Christie DEP failed to honor the Gov.’s 2009 campaign promise to designate additional C1 waters and has not designated a single new C1 stream, despite Commissioner Martin’s own scientific staff recommendations to designate 121 new river miles.

The Highlands are magnificent, but that didn’t stop Gov. Christie from appointing cronies to dismantle the Regional Master Plan adopted pursuant to the Highlands Act and firing the Executive Director.

There has been very little sustained or critical press coverage of these betrayals (*none on the C1 issue), very little and ineffective criticism from Highlands advocates, and no legislative oversight.

I’m not smiling anymore – but it was good while it lasted.

*With the notable exception of Mike King in Phillipsburg, who has done great work, including litigation to enforce C1 buffers in local land use reviews.

View from High Point Wanaque Reservoir, Manhattan skyline

Cap Creates Huge Orphan Liability for Pollution Damages from Spills and Accidents at chemical facilities, refineries, pipelines, ports, and rail & truck transport

Cap shifts risks of accidents and the economic costs to the public and taxpayers, not the polluters

Proposed Legislative Fix Is Far Too Narrow in Scope

On November 26, 2004, the M/T ATHOS I (Athos) struck a large, submerged anchor while preparing to dock at a refinery in Paulsboro, New Jersey. The anchor punctured the vessel’s bottom, resulting in the discharge of nearly 265,000 gallons of crude oil into the Delaware River and nearby tributaries (National Oceanic and Atmospheric Administration [NOAA] 2006).

Although you would not know about it by reading the NJ media, last Monday (6/16/14) the Senate Environment Committee heard testimony on and released an important bill to eliminate the current $50 million liability cap on pollution discharges from off shore drilling platforms that enter NJ waters, see, S2172 (Smith, D-Middlesex).

The bill is limited in scope to drilling platforms and is a significantly scaled back version of a bill (S2108) originally introduced in the wake of the Gulf of Mexico oil well blowout. That bill would have applied to far more hazardous activities. It was heard in July 2010 and I wrote about it here:

• Gulf Blowout Prompts NJ Lawmakers to Seek Increase in Polluter Liability to $1 Billion

A far narrower compromise version of that bill passed both houses of the legislature by unanimous votes, but was pocket vetoed by Governor Christie in January 2012. The Governor did not even explain why he effectively vetoed the bill.

The saga of how that original bill got scaled back to the current version – the legislative history – shows how powerful the oil, gas, and chemical lobby is in Trenton and how they act with impunity to harm the public interest and maintain huge subsidies.

Risks from accidents and spills at hundreds of industrial chemical facilities, refineries, ports, pipelines, ships & barges, railroads, and tanker trucks were carved out of that bill and ignored. Someone should ask the people of Paulsboro about that – or those on the Delaware who experienced the Athos spill (see photos above). See also:

• 25 Years After Bhopal Chemical Disaster:  NJ’s “Fatal Fifteen” Shows It Can Happen Here

Industry lobbyists effectively gutted the bill and legislators went along for the ride. And all of it was done under the radar and unreported by NJ media. see:

• Oil and Chemical Industry Lobbyists Quietly Killed the $1 Billion Liability bill

• Why the liability scheme is increasingly important

The liability scheme plays an important role in our overall environmental management framework.

Holding corporations legally liable for harms they cause provides incentives to prevent accidents, reduce risky behaviors, and deter illegal conduct. It also provides a means to force polluters to restore damages that they create and compensate the public for harms caused by their pollution. Last, liability can also punish reckless or illegal conduct.

As the lobbyists for corporate polluters exercise an effective veto power over passing new laws to close loopholes and strengthen our laws, and as they capture government agencies, and as our environmental laws and the government agencies that enforce those laws come under increasing attack – as regulatory protections are rolled back or not enforced – the liability scheme becomes increasingly important.

•  Drilling platforms are not the only risky activities that threaten NJ

According to the NJ Hazard Mitigation Plan (Section 5.19 Risk Assessment of Hazardous Substances):

If released or misused, hazardous substances can cause death, serious injury, long-lasting health effects, and damage to structures and other properties, as well as the environment. Many products containing hazardous substances are used and stored in homes and these products are shipped daily on highways, railroads, waterways, and pipelines.

Transportation of hazardous substances on highways involves tanker trucks or trailers, which are responsible for the greatest number of hazard substance release incidents. New Jersey is composed of over 39,213 miles of highway, many of which are used to transport hazardous substances (New Jersey Department of Transportation [NJDOT] 2013). These roads cross rivers and streams at many points; hazardous substance spills on roads have the potential to pollute watersheds that serve as domestic water supplies for parts of the State. Potential also exists for hazardous substance releases to occur along rail lines as collisions and derailments of train cars can result in large spills.

In addition to transport risks, NJ has hundreds of chemical facilities and refineries where a catastrophic accident or release of toxic chemicals could kill thousands of people living nearby and cause major environmental damage. See:

• 25 Years After Bhopal Chemical Disaster:  NJ’s “Fatal Fifteen” Shows It Can Happen Here

According to the plan, from 2008 – 2012 – just 4 years – there were 1,795 accidents involving releases of hazardous substances. While most were small in scale, that is an indicator that risks are significant and increasing in frequency, so a big accident is more likely.

These risks are greatly increasing, as more oil and gas pipelines are built, and hundreds of barges of Bakken crude oil ply the Hudson River and rails en route to NJ refineries.

Ironically, the proponents of the Pilgrim Gas line highlight the risks of shipping Bakken crude down the Hudson River to justify their allegedly less risky pipeline proposal.

In the event of a major accident, the current $50 million liability cap would not come close to paying for the damage done.

The cap does not provide adequate incentive for industries to make the maximum feasible investments in prevention – it actually encourages and subsidizes risky behaviors.

That liability cap shifts both the risks of accidents and the economic costs to the public and taxpayers, not the polluters.

• Where do we go from here?

At the close of my testimony at Monday’s hearing where I strongly urged that the original broad approach to eliminate the liability cap for all discharges under Spill Act be restored – including inland waters and facilities, not just off shore drilling platforms – Chairman Smith signaled an intent to introduce additional legislation to address those risk.

Let’s hope Smith moves expeditiously in drafting and moving that bill.

But, we’ve heard that commitment by Smith before. Back in July 2010, Smith pledged to amend the bill on the Senate floor, as I wrote then:

Chairman Smith announced a plan to release the bill and then amend the bill on the Senate floor on August 23 to address the inland liability issues. The bill was approved unanimously with that understanding.

The bill was amended on the floor alright, but not the Senate floor, but in the Assembly by fellow Democrat and “pro-environment leader”John McKeon (“Got water”, John?)

And it wasn’t strengthened. It was gutted.

The Assembly floor amendment sponsored by McKeon gutted the bill and limited it in scope to the drilling platform bill we have today.

So, I am not optimistic. But hey, Smith and McKeon are loved.