Archive for June, 2015

Lockdown in Livingston

June 30th, 2015 No comments

Christie Kicks off Presidential Campaign In Tightly Controlled Bubble

National Media Isolated From Over 1,000 Protesters

No Differences or Dissent Tolerated

Police Enforce Private Politics – By Invite Only

Fear and Loathing – and we’re not even on the campaign trail yet!

Livingston HS - police checkpoint blocks those without invitations from entering event. (6/30/15)

Livingston HS – police checkpoint blocks those without invitations from entering event. (6/30/15)

Livingston NJ High school grounds were in tight lockdown by multiple local, Essex County, and State Police police forces today, as Gov. Christie manufactured another Town Hall bubble, this time for the national media.

Police checkpoints and barricades kept protesters from getting within 300 yards of the High School, a “designated protest zone” that was not within earshot or the view shed on the national media.

[I objected and asked police their legal basis for doing this and all they said was that the State Police were in charge and they can do whatever they want. Police described the line as a “de-escalation zone” as if protest were some form of warfare or violence. Sick.]

In a classic Christie move to control the visual image, the media were safely ensconced far from protesters, behind the HS building in their own special bubble.

Is this the kind of repressive “strength” and “leadership” Christie would bring to the National Security Surveillance State?

Fox News gets front row special parking accommodations

Fox News gets front row special parking accommodations

sheltered from protesters, the media could talk among themselves and rehash conventional wisdom and transcribe Christie campaign message.

sheltered from protesters, the media could talk among themselves and rehash conventional wisdom and transcribe Christie campaign message.

Without the voice of the protesters and little local knowledge, the national press corps  had no idea of the hypocrisy of the Gov. holding the event at a public high school, after his systematic assault on public education and educators.

But several NJ press corps were out among the protesters – they understand exactly what the Gov. was doing and made sure that the protesters were included in the story –

[Update – I told you so, see Bergen Record:  Hundreds of protesters rally outside Christie announcement  and Star Ledger:  Protesters at Christie announcement: ‘Christie for president … hell no!’ and even the local Patch:WATCH: Protesters Boo Christie On Arrival To Presidential Announcement ~~~ end update]

The teachers union was the best represented, although I saw a handful of neglected Sandy victims, labor, consumer, and environmental protesters.

It was a very disappointing showing from the environmental community, given the Governor’s atrocious record on climate change and the environment – and with the Pope’s encyclical out there to force the issue, it was another huge missed opportunity.

But they’ve been silent or in collaboration with the Gov. for 5 years now, so I was not surprised by the BIG NO SHOW (with the exception of a handful of Sierra Club folks).

Here’s some scenes – and those teachers do make the best signs!







Time to pay the piper

Time to pay the piper

Don't forget the thousands of Sandy families still homeless (Bus for Progress was there!)

Don’t forget the thousands of Sandy families still homeless (Bus for Progress was there!)


This man won't sit down and shut up

This man won’t sit down and shut up

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NJ Climate Activists Need To Get Real And Militant

June 29th, 2015 No comments

Raise the Bar – Stop Praising Symbolic Gestures

Climate & Clean energy Coaltion kicks off in Trenton - 6/25/15 - I had serious reservation about posting this photo, but decided truth was superior to propaganda

Climate & Clean Energy Coalition kicks off in Trenton – 6/25/15 – I had serious reservation about posting this photo and writing this post, but decided truth was superior to propaganda

We don’t have time to fool around. We have to get militant, very fast.” ~~~ Chris Hedges

I can see the train wreck coming.

Given the cast of characters, it will be a rehash of RGGI with emissions caps 45% above current emissions and all sorts of loopholes and gaps, as we noted at the time:

RGGI’s regional emission reduction goals are modest – 10% by year 2019 – and NJ’s burden is even lighter. NJ’s 22.9 million ton emission share amounts to a 1% reduction from current in state power plant emissions. The RGGI emissions inventory and “caps” do NOT consider emissions from energy imports from coal plants. RGGI does not address 60-70% of the problem from other major green house gas emissions sectors, such as transportation and buildings. So RGGI is only a small part of major efforts that will be required to meet the Corzine GWRA emissions reduction goals.

It will be a rehash of the toothless Global Warming Response Act, which we also noted at the time:

Contrary to media coverage and political spin, simply put, the law amounts to little more than aspirational goals and a misleading sham. Here’s why.

It will be a 80% renewable energy goal that is a mere aspiration without the required increase in the Renewable Portfolio Standards to enforce the goal. The current bill has been gutted, as Bil Potter wrote:

But before the bill was released from committee, key requirements were stripped away. Most important, in its current form there is no increase in the “Renewable Portfolio Standards” (RPS). The RPS mandates the minimum percentage of electricity sold in New Jersey that must come from renewable sources — primarily solar and wind. Without a steady and predictable increase in the RPS, the solar industry goes from boom to bust, whatever the long-term goals are for the state.

I really support your efforts and I really don’t want to say “I told you so” when a new Democratic Governor signs a toothless package of bills in 2018.

So here are some real, short term, and feasible demands that activists should be making, instead of symbolic gestures like Legislative and municipal or county resolutions.

[A far more serious and better tactic and organizing tool is a “Vow of Resistance” like the NY fracktivists used, putting the politicians on notice that people are prepared to put their bodies on the line and engage in civil disobedience.]

Demands are going to have to come from the bottom up, because Trenton lobbyists will not get outside their comfort zones or push Democratic friends.

1. Eliminate the current $50 million cap on liability for spills

2. Put teeth in the Global Warming Response Act by requiring that environmental permits demonstrate compliance with the 80% emission reduction goal over the design life of the project. This would include permit renewals as a ratchet down provision for existing facilities, forcing retrofits (or purchase of carbon offsets if not technologically feasible);

3. Put teeth and close loopholes in current environmental permitting requirements by mandating that the cumulative and lifecycle impacts of a project be considered, including greenhouse gas emissions (link to enforceable standards in #2 above) and public health impacts (like the public health science basis for the NY State fracking moratorium)

4. Closing the gaping loophole in NJ environmental law by requiring an Environmental Impact Statement for major projects, along the lines of SEQRA in New York State.

[Update: technically, the NY DEC selection of the “No Action” alternative in the fracking EIS is the legal basis and regulatory tool that implemented the ban on fracking in NY.

It is a freaking amazing coucnicence that I wrote this post this morning, before the NY DEP SEQRA Final decision document was just issued today.

I am proud to note that I attended and testified at the first NYS DEC  SEQRA herring on fracking, see:

5. Restore the renewable portfolio standard increases in the pending 80% renewable energy bill (link above)

6. Eliminate the current 2% cap on solar net metering (like the 80% renewable bill, that bill’s already been gutted too and it hasn’t even passed yet).

7. Close the loopholes in the Highlands Act for pipelines, which are exempted from buffer restrictions(see Section 32 b.(1))

8. Amend the Pinelands Act to prohibit new pipelines and mandate energy efficiency.

9. Put teeth in “green building” codes.

10. Establish a new carbon tax to put a price on carbon and capture the social costs of carbon and use the revenues to finance mass transit infrastructure.

11. Constitutionally dedicate the current Societal Benefits Charge that goes to the Clean Energy Fund.

These are merely stop gap short term tactics that rely on traditional regulatory barriers – offered off the top of my head.

I’m sure there are many more that could be listed (like DEP air permit review requirements – like consideration of GHG emissions and risk assessments tied to real public health standards).

There are other economic regulatory reforms that could be put in place at BPU, like eliminate the cost test from the Off Shore Wind Act, which fails to consider social costs of carbon or environmental benefits.

Nationally, a similar set of demands could be focused on FERC and the National Gas Act.

Real solutions lie in demands to leave fossil in the ground and impose moratoria on fossil fuel extraction, pipelines, trains, ports, and related infrastructure.

Like Chris Hedges said:

We don’t have time to fool around. We have to get militant, very fast.” 

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I Just Stepped Into Another Pile of “Green” Bullshit

June 29th, 2015 No comments

Curiosity Kills The Green Cat

Seems Like Every “Green” Rock I Turn Over I Find Bullshit

This morning, I checked in to see what was shaking in the Legislature today and noticed that the Senate Economic Growth Committee was meeting to hear a bill, S3010 the “Grow NJ Assistance Act”.

Always wary of what Trenton might do in the name of economic growth, and noting that the sponsor was Sen. Sarlo, I hit the link and scanned the bill to see what that was all about.

As I quickly scrolled thru and read the definitions in the bill, a provision of existing law caught my eye:

“Minimum environmental and sustainability standards” means standards established by the authority in accordance with the green building manual prepared by the Commissioner of Community Affairs pursuant to section 1 of P.L.2007, c.132 (C.52:27D-130.6), regarding the use of renewable energy, energy-efficient technology, and non-renewable resources in order to reduce environmental degradation and encourage long-term cost reduction.

So wow, NJ has “minimum sustainability standards” and green building standards! Who knew?

I had to check that out.

And low and behold, a less than 5 minute Google of the law, it’s legislative history, the interim Guidance, and the current “green building manual” turned up the typical pattern of Trenton bullshit.

Here’s the all too typical pattern I’ve seen so many times before – sequentially – which is rarely called out by the press or environmental lobbyists.

And keep in mind that this occurred during a time when the Democrats controlled both houses of the Legislature and there was a so called pro-environmental Democratic Governor (Jon Corzine) who “got it” on climate change (Corzine later signed the toothless Global Warming Response Act), and a self proclaimed aggressive technocrat DEP Commissioner (Lisa Jackson).

The Trenton Green Shuffle

1. The introduced version of the bill has teeth – it mandates that a State Agency, DCA, adopt standards that are regulatory and enforceable and part of the NJ Uniform Construction Code:

Requires promulgation of green building subcode under State Uniform Construction Code.

I didn’t do a search of media clips, but no doubt the bill got good press and was given exaggerated praise by environmental groups. The positive headline and the quote is what they’re all looking for, e.g. “Democrats Seek Green Sustainable Buildings – Environmentalists praise step towards fighting climate change“.

2. The bill is referred to the Economic Growth Committee, not the environmental committee.

3. No doubt as a result of opposition by the Builders Association, the introduced version of the bill is gutted behind the scenes by a Senate Committee substitute

The substitute bill has no teeth – the mandate in the introduced version for DCA to promulgate enforceable regulatory standards has turned into a request to please publish a voluntary Guidance Manual when you can find the time:

Authorizes DCA Commissioner to prepare and make available to the public a green building manual.

Again, without having checked out the press, I’d bet that there were no press reports that the bill was gutted and no angry denunciations of the sell out.

4. The Governor signs the gutted bill into law.

I’d bet if you went back and checked it out, the Gov.’s signing statement failed to note the difference between regulatory standards in the UCC and the Guidance manual – and you just might find a signing statement and press releases by the Gov. and or sponsors that exaggerates the significance of this toothless exercise that has no impact on actual practice.

5. State government regulators hide behind Rutgers and let the same cast of characters there (former DEP employees) draft “Interim Guidelines”.

The same old cast of characters (Judy, Jeanne, Athena & Mike) form a Committee to draft the Guidance Manual authorized – but not mandated – by the law.

Of course there is delay and little transparency and public participation in the Committee’s deliberations.

Because the law lacks teeth, so do the “Interim Guidelines” – but the lay reader would not know that, because the Guidelines are chock full of “green” rhetoric and what look like references to real technical standards.

This too is a standard ploy – they always dress up a toothless voluntary guide with bullshit –

The weaker the Guide is, the more bullshit required to hide that fact.

6. The Christie Administration assumes office.

They go one step even deeper into bullshit. They avoid any possibility of even the appearance of or implied technical standards or regulatory teeth.

They take a toothless but technical jargon loaded Interim Guidance Manual and turn into into a totally empty shell website with merely the most basic elementary narratives.

But the website looks impressive though, doesn’t it?

So there it is folks, another day in “green” sustainability bullshit.

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Legislators Urged To Block Christie DEP Flood Hazard Rule Rollbacks

June 26th, 2015 No comments

Radical New Mitigation Scheme Not Authorized by Legislature

Elimination of Flooding, stream buffer and water quality protections inconsistent with legislative intent

Conservation, Coastal, and Watershed Groups Are AWOL – Why?

Last night, DEP held the final public hearing on a radical proposal that would weaken protections from flooding and water pollution – for a general overview and first cut summary of all the flagrant rollbacks of the DEP proposal, see:

I attended and testified at the first public hearing which was held last week at the DEP building in Trenton.

I talked about the history of the Category One buffer program that the Christie DEP was repealing.

I explained why the developers hated it, and highlighted how it protected about 2,000 miles of streams with 300 foot wide buffers (do the math and figure out how many acres of ecologically sensitive land were protected at no cost to the taxpayers).

The C1 program killed numerous large corporate office park and housing developments, from Windy Acres in Clinton to Berwind in Hopewell, and many more across the State. It seems like Conservation groups don’t even understand how and why some of their land deals came about.

In fact, the Christie DEP’s own scientists recommended that the C1 program had a strong scientific basis and that it be expanded to 121 miles of new “exceptional value” streams

The C1 program, which prohibits buffer disturbance, would be repealed and the existing “stream encroachment permit” program standards on destruction of riparian buffer vegetation and disturbance would be weakened and effectively replaced by a mitigation scheme and scam oriented mitigation bank.

DEP research suggests that wetlands mitigation does not work, see:

Despite this failure, the DEP failed to provided a scientific basis for the new proposed stream bank./riparian mitigation scheme. Nor is such a scheme legally authorized in Legislation.

I am told that only 4 Sierra Club members and 3 residents testified in opposition to the proposal last night. There was a similar low turnout at the 1st hearing in Trenton.

There has been only one news story, a NJ Spotlight “he said she said” by Scott Gurian.

As usual, the subscription service to the legal community “Law360″ is competent and understands the rollbacks and published a story under this headline:

NJ DEP Looks To Ease Permitting In Flood Hazard Areas

The lack of opposition by environmental groups (other than Sierra, Clean Water Action, Stonybrook Watershed, and ANJEC) is deeply disturbing – no, the silence is disgusting.

The failure to publicly denounce this Christie DEP rollback is tacit support of the proposal.

Even worse. the silence might reflect economic self interests, because some conservation groups (like Audubon, ALS, & NJCF) and watershed groups that do stream bank and riparian restoration work could receive huge financial benefits from the radical new mitigation scheme.

That work could generate mitigation credits that would be bought, sold, and traded by a mitigation bank. Additionally, there will be a ton of new money invested in stream bank and riparian restoration work, including consulting work groups like Audubon do.

In an effort to get some public awareness of just how bad this rule proposal is, today I urged legislators to conduct oversight hearings to get the facts out to the public and the press.

If you read nothing else, just get the regulatory history I highlight in the first 5 bullets.

Senators should be very interested in this DEP rule, given their sponsorship and votes in favor of a bill to require DEP update flood hazard maps that passed yesterday  (Assembly version passed)and is now on Gov. Christie’s desk:

From: “Bill” <>
Sent: Friday, June 26, 2015 1:11:17 PM
Subject: Flood Hazard Act – DEP Rule proposal – request for Legislative oversight

Dear Senators –

As you may know, on June 1. 2015, DEP proposed sweeping new rules under the Flood Hazard Control Act, see:

The rules are designed, according to DEP, to “relieve regulatory burden” in accordance with Governor Christie’s Executive Orders #2 (regulatory relief) and #3  (reduction of burdensome Red Tape).

The proposal is a radical departure from almost two decades on regulatory policy and practice. It is fatally flawed and will increase flood risks and reduce water quality.

Among many other things, the proposal would

1) repeal and eliminate the “Category 1″ 300 foot stream buffer program incorporated in the DEP storm water management rules that were adopted during the McGreevey Administration;

2) systematically roll back regulatory protections enacted during the Corzine Administration, which incorporated and expanded the scope of the Category One stream buffers in the DEP Flood Hazard Act stream encroachment permit program;

3) create a radically new stream mitigation program and mitigation bank that would provide relief from current stream buffer protections.

The mitigation scheme lacks legislative authorization and is inconsistent with legislative intent under the Flood Hazard Act;

4) propose numerous new technical loopholes that would promote new development in flood hazard areas; reduce or eliminate current protections for stream buffer and riparian vegetation; reduce water quality; put more people and property in harms way; and reduce or eliminate DEP and/or public reviews; and

5) ignore climate change impacts and risks, which include increased frequency and severity of extreme weather,including rainfall and flooding events. Climate impacts magnify flood risks caused by hydrological changes caused by NJ’s high degree of development and imperious surfaces. The rule also ignores prior FEMA objections to DEP’s Emergency Flood Rule enacted in the wake of Sandy.

Below is my first round of comments on the DEP proposal.

Given the above fatal flaws, I urge you to conduct legislative overnight hearings on they rule proposal BEFORE the DEP adopts the rule.

Should DEP adopt the rule, I would urge you to review and reject the proposal as inconsistent with Legislative intent” pursuant to your Constitutional legislative veto powers.

I am available to discuss at your convenience.


DEP Comments – Round 1

Dear DEP – below please find Part 1 of my written comments. These comments are in addition to my testimony at the public hearing. I reserve the right to revise and extend those comments until the close of comment period.

1. Delegation to local Soil Conservation Districts

Throughout the subject proposal, the Department would delegate certain powers, functions, and technical regulatory decisions, to local Soil Conservation Districts authorized by the Soil Erosion and Sediment Control Act.

The proposal states:

 “The Department is proposing to delete all standards and requirements related to acid producing soil deposits in the FHACA Rules, as well as to delete reference to acid producing soil deposits from the riparian zone special area in the CZM rules, and to instead rely on local Soil Conservation Districts to mitigate potential impacts resulting from exposure of such deposits, as required under the Standards for Soil Erosion and Sediment Control in New Jersey at N.J.A.C. 2:90.” e.g. See: N.J.A.C. 7:13-11.2(j)1)

The Department may not delegate these powers by law.

The Flood Hazard Act circumscribes the Department’s delegation powers, limiting them to certain qualified County governing bodies, and establishes delegation standards and a review process:

NJSA 58:16A-55.6. Delegation of power to approve or disapprove application to county governing body

The Department of Environmental Protection may delegate its power to approve or disapprove any application made to it pursuant to this act and its power to enforce any aspect of this act to a county governing body which agrees to accept such designation and in the department’s judgment is capable of utilizing the rules, regulations and standards adopted by the department for the administration of this program. The department shall review this delegation at least biannually and may revoke such delegation for failure to properly administer such delegated powers. The county governing body may charge the same fees promulgated by the commissioner pursuant to P.L. 1975, c. 232 (C. 13:1D-33), when such powers are delegated to it.”

The proposed delegation to local Soil Conservation Districts is not only not authorized by the Flood Hazard Act but is expressly inconsistent with the delegation provisions of the Act.

2. Deference to Local Soil Conservation Districts

The Department is proposing new requirements for a stormwater outfall structure. They include a new policy described by the Department as “Added deference to local Soil Conservation District for stability issues”.

This policy lacks any asserted legal and scientific basis and is unsound public policy, and is therefore ultra vires, as well as arbitrary, capricious and an abuse of discretion.

3. Mitigation scheme and creation of mitigation bank

The proposal includes a new SUBCHAPTER 13. RIPARIAN ZONE MITIGATION, which is sweepingly broad in scope and hugely significant in substance, both economically and environmentally.

A change in regulatory policy of this magnitude requires express statutory authorization by the Legislature.

The Flood Hazard Act (Act) does not authorize the Department to enact regulations that would create a mitigation scheme or a mitigation bank.

The Act lacks any provision for “mitigation” or a “mitigation bank”.

In contrast, the Act clearly establishes standards and authorizes the Department to enact regulations to enforce these legislative standards via a traditional regulatory permit program.

The Act does not specifically – or implicitly – authorize a mitigation program and mitigation bank – nor does any other authority the Department relies on as the legal basis for the proposal.

Because such a program is a radical departure from many years of DEP regulatory policy and practice, the Department’s proposal is ultra vires, not legislatively authorized, and contrary to law and the express framework and provisions of the Act.

The mitigation scheme and mitigation bank are also inconsistent with legislative intent.

The proposal must be withdrawn.

4. Request for Attorney General’s Opinion and OLS opinion

In my prior career with the Department, the Department’s Rulemkaking guidance required that the Attorney General and OLS conduct a legal review prior to proposal.

On issues of significant regulatory policy change and/or significant economic and/or environmental implications, the AG and OLS would conduct heightened scrutiny pre-proposal review to ensure an adequate legal and technical bsis for the proposal.

I request that the AG’s Office and OLS conduct a thorough review and issue a written legal opinion with respect to the legal basis for the subject proposal, as well as the legal adequacy of the flaws identified in comments #1 – #3 above.

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Liberty State Park Screwed By Sweeney Sellout

June 26th, 2015 No comments

Sweeney Quietly Abandons His Clean “Repair” Bill

Sellout Promotes Commercialization of Liberty State Park

Will Gov. Christie Sign A Bill To Commercialize A National Icon?

Liberty State Park was sold out (again) during back room legislative maneuvers in yesterday’s hectic last minute budget session.

We need to rehash a little recent history in order to make this maneuver understandable.

Recall that last year, the Legislature rammed through a bill to consolidate the Hackensack Meadowlands Commission with the NJ Sports and Exposition Authority.

Despite the fact that Liberty State Park (LSP) is not located in the Meadowlands, that bill included a provision that would give the new Meadowlands Commission jurisdiction over Liberty State Park, including a new role in developing the park.

LSP supporters, who successfully have fought privatization and commercialization projects in the park for decades, cried foul and mounted an effort to urge Governor Christie to veto the bill.

We tried to explain why that effort was useless, given Gov. Christie’s own Parks Privatization policy and his DEP’s secret promotion of commercialization plans, including masking them via a $120,000 park development study conducted by the private planning group NJ Future and a New York City development firm.

After the Gov. signed the bill into law, in an embarrassing sequence, Democratic legislators initially denied knowledge of the LSP amendments, then they said they had no intent to commercialize or develop the Park, and then they promised to fix the problem.

Assembly Speaker Prieto then sponsored a bill he claimed would repair the damage that he claimed was inadvertently caused by the Meadowlands consolidation bill he sponsored.

I explained why Prieto’s bill would not solve the problem, which could only be solved by a “clean” bill that simply deleted LSP from the Meadowlands Consolidation law and eliminated any role for the new Meadowlands Commission at LSP, see:

Senator Sweeney stepped in to save the day.

Sweeney’s bill – the introduced version, that is  – proposed to solve the problem by simply deleting LSP from the Meadowlands Consolidation law and eliminating any role for the new Meadowlands Commission.

Under this bill, the entirety of the provision regarding Liberty State Park would be removed from the law, leaving the commission with no authority or responsibility with respect to the park. 

Sweeney got good press for this, see:

Bill seeks to lift control of Jersey City’s Liberty State Park from sports agency

a bill by Senate President Stephen Sweeney would return all development powers at the park to the Department of Environmental Protection, which oversees the state park system. Although Governor Christie would be likely to veto it, Sweeney’s bill could disrupt the administration’s goal of helping to finance private development at the park in Jersey City.

Park advocates welcomed the new legislation.

The Sierra C lub praised Sweeney in a May 21, 2105 press release:

Sweeney Bill Protects Liberty State Park

Senate President Stephen Sweeney is sponsoring bill S2866 that would remove jurisdiction of Liberty State Park from under the New Jersey Sports and Exposition Authority. This bill would delete the section that gave the power to NJSEA and return power to New Jersey DEP Division of Parks and Forestry. The bill would also require any leases or concessions to go through appropriate public review. The Christie Administration’s goal is for private development in the park. The Sierra Club supports this new bill to remove the park from private control. We support bill S2866 because it helps to protect Liberty State Park.

Well, Sweeney may have wanted to protect Liberty State Park back in May, but yesterday, he sold LSP out by amending his bill to reflect the sham Prieto bill.

Despite enormous public opposition and a ton of media coverage, the Legislature has now explicitly sold out Liberty State Park TWICE, and lied about it both times.

There must be a powerful deal in the works to drive these kind of corrupt legislative maneuvers.

The Prieto bill passed both houses and is on the Governor’s desk.

Will Gov. Christie, in the midst of a Presidential campaign, sign a bill that would promote privatization and commercialization of a national icon?

I thank Howard Moskowitz, Esq. for bringing this to my attention. I was focused on yesterday’s Clean Energy/Climate Coalition event.

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