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Media, Democrats, and Environmentalist Fail To Even Respond

What explains this capitulation?

Back in March, out on the hustings in Iowa, Christie bragged that he had spent 5 years dismantling environmental regulations, including climate change related regulations (see this post)

“I spent the last 5 years dismanting the overreach that she [NJ DEP Commissioner Lisa Jackson] did in New Jersey and our environmental protection area.  ~~~~ Gov. Chris Christie, Iowa, 3/7/15

There was little or no response to that Christie “punch in the face” to environmentalists by media, Democrats, or environmentalists themselves.

More recently, again deploying his common tactic of using State government as his campaign tool, Christie politicized DEP to attack the Obama climate plan. Again, no response or pushback to another punch in the face.

So, with a clear field, Christie had both the climate and the “government red tape” issues teed up for the first Presidential debate this week, an event held in the wake of the adoption of the Obama Clean Power Plan.

Predictably, like music to the corporate lobbyists ears, Christie went down that road at the first Republican Presidential debate.

During the debate, Christie was the first to begin the Republican attack on regulatory protections:

New Jersey Gov. Chris Christie — the first candidate to bring up regulations during the debate — pointed to his record of cutting red tape as governor.

“We cut regulations by one-third of what my predecessor put in place,” Christie said. ~~~ Republicans Decry Regulations During GOP Debate (The Hill, 8/6/15)

Although you wouldn’t know it by reading the press, this was not a “pivot” by Gov. Christie to appease the right wing base of Republican primary voters.

In the first hour of his first day in Office, Chris Christie’s first official act was to issue Executive Order #1 to declare a moratorium on regulations:

All proposed regulations and rules, except as herein provided, are hereby frozen and suspended for a period of 90 days commencing on the effective date of this Executive Order.

That was not a symbolic gesture or slogan –

One would think this would get significant attention, because Christie went even further and flat out blamed regulations for the poor performance of the state’s economy: (EO#2)

WHEREAS, New Jersey’s ability to leverage these assets to produce growth and opportunity is being challenged by chronically high costs and regulatory burdens that have resulted in New Jersey’s consistently low rankings nationally on regulatory burdens, costs-of-doing business and similar such economic measures making New Jersey the worst business climate in the nation;

Christie then laid out a radical rollback agenda in companion Executive Orders 2-4, with the “regulatory relief” policy  and objectives made clear in Executive Order #2, a policy he calls “common sense”:

1. Block new rules:

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.

2. Rollback existing State rules to minimum federal requirements:

3. Create loopholes, elevate economic concerns, and be business friendly 

c. Adopt rules for “waivers” which recognize that rules can be conflicting or unduly burdensome and shall adopt regulations that allow for waivers from the strict compliance with agency regulations and such waivers shall not be inconsistent with the core missions of the agency. Each State agency shall prepare and publish on its website a policy describing the circumstances in which such waivers will be granted.

d. Employ the use of cost/benefit analyses, as well as scientific and economic research from other jurisdictions, including but not limited to the federal government when conducting an economic impact analysis on a proposed rule.

e. Detail and justify every instance where a proposed rule exceeds the requirements of federal law or regulation. State agencies shall, when promulgating proposed rules, not exceed the requirements of federal law except when required by State statute or in such circumstances where exceeding the requirements of federal law or regulation is necessary in order to achieve a New Jersey specific public policy goal.

f. Take action to cultivate an approach to regulations that values performance-based outcomes and compliance, over the punitive imposition of penalties for technical violations that do not result in negative impacts to the public health, safety or environment.

• Why Aren’t NJ Democrats Pushing Back Against Christie’s Abuse of Power?
• The Only Heat Christie Gets from Trenton Is The Weather

Christie DEP Fails To Require Cooling Towers, Despite Slaughter of 3 Billion Fish Per Year

Nuke Plant Is “Pasteurizing” Delaware Bay

Bill Wolf (sic), a former NJDEP worker, testifies during a public hearing hosted by the NJDEP regarding a water permit for PSEG Nuclear at the Old Courthouse in Salem, Wednesday, Aug. 5, 2015 (Joe Warner | For NJ.com)

Part One – The Framework Is Broken

Before we begin this long story, check this timing out – it completely exposes the corruption.

First, PSEG CEO shamelessly brags about the deal:

During an investor briefing, Izzo said that company officials have reopened talks with New Jersey’s Department of Environmental Protection on updating a long-expired, long-controversial cooling water intake permit for Salem. The development came shortly after federal regulators finalized new rules for choosing protective technologies for power plant intakes.

“The ink wasn’t dry” on the regulations “when we called up DEP and said, ‘Let’s talk about the permits,'” Izzo said. ~~~ Delaware Online (8/4/14)

Then, DEP brazenly and openly confirms the deal – note the EPA’s Oct. 14, 2014 date discussed below with respect to Izzo’s comment:

As part of the issuance of the final regulations, EPA distributed guidance regarding the implementation of federal regulations with respect to the timing of the regulations and applicable requirements. Specifically, EPA stated that if the Director (e.g. state permitting authority) began a permit renewal prior to October 14, 2014 (before the effective date of the final rule), the Director may issue a permit based on the information already supplied by the applicant without the need to supplement to meet additional reporting and study requirements of the new regulations, so long as the permit is issued before July 14, 2018. ~~~ (DEP draft permit, page 13)

Did you get that? If PSEG came in before October 14, 2014, they were basically good to go. No wonder Mr. Izzo and DEP were in a hurry. So let’s repeat that:

EPA stated that if the Director (e.g. state permitting authority) began a permit renewal prior to October 14, 2014 (before the effective date of the final rule), the Director may issue a permit based on the information already supplied by the applicant without the need to supplement to meet additional reporting and study requirements of the new regulations, so long as the permit is issued before July 14, 2018.

The DEP refused to renew the expired permit for almost a decade – but, when the timing worked to the benefit of PSEG to avoid a $1 billion cooling tower requirement, the corrupt Christie DEP acted immediately.

I guess they think no one reads the fine print and connects the dots. They may be right.

The DEP Draft Permit and its tortured history

1) The Original Whitman DEP 1994 PSEG Permit Cut the Deal

The DEP initially issued a draft permit that required cooling towers at the Salem plant.

But, like the later Oyster Creek cooling tower permit, that draft permit was not finalized, for political reasons and objections by PSEG.

Instead, in 1994, the DEP issued a final permit that did not require cooling towers and instead relied on “special conditions”, primarily wetlands restoration as mitigation for the fish kills:

A NJPDES permit for this facility was issued to PSE&G-Salem Generating Station (the permittee at that time) on July 20, 1994 with an expiration date of August 31, 1999. In its July 20, 1994 NJPDES permit, the Department granted PSE&G’s request for a variance pursuant to Section 316(a) and proposed thermal limits which would allow the continued operation of the existing once-through cooling system. With regard to Section 316(b), the Department determined that “best technology available” (BTA) consisted of the existing CWIS, modifications to the intake screens and an improved fish bucket design; a restriction on cooling water intake flow; and a sound deterrent study. The Department also required a variety of other “Special Conditions”.

• Special Conditions Requiring Actions in the Estuary to Produce Fish – undertake a wetlands program to restore and/or preserve at least 8,000 acres of wetlands, plus 2,000 acres of additional wetlands or 6,000 acres of associated upland buffers, or a combination thereof based on a 1:3 wetlands/uplands buffer acreage ratio. The permit also required a Deed of Conservation Restriction to preserve up to 18,500 acres of lands, wetlands and uplands including the 4,500 acre Bayside Tract. The permit further required PSE&G to install five fish ladders to eliminate barriers to migration for anadromous fish. […]The wetlands restoration program was intended to increase fish productivity in the Delaware Estuary. The amount of acreage selected for the program was determined and mandated in the July 20, 1994 permit by determining the amount of Spartina and other associated plants that would be produced each year and the resulting detrital plant biomass available in Delaware Bay by decomposition by fungi, bacteria and other micro-organisms. These in turn would be consumed by zooplankton and various small invertebrates which forms the food base for fish. These ecological concepts, along with specific quantities, formed the basis of the aggregated food chain model and was used to translate estimated fish losses at the Station to acres of wetlands required to adequately mitigate those losses.

• The Department calculated that a minimum of 7,487 acres should be restored to increase fish productivity to a level that equals the fish estimated to be lost at the cooling water intake structure. The permittee proposed to restore a minimum of 10,000 acres to provided added assurance that fish production will be increased to sufficient levels to mitigate the effect of PSEG-Salem related losses.

Got that? Do you think that restoration of existing wetlands can produce incremental ecological productivity increases that offset the slaughter of 3 billion fish per year? No way.

2) The Whitman DEP 2001 Renewal Permit Perpetuates The Deal

Here’s the DEP’s cover story about the 1994 deal:

Consistent with the 1994 NJPDES permit, the Department did not designate the wetlands restoration program and fish ladder requirements as best technology available under Section 316(b) nor were these actions required in lieu of cooling towers. The Department incorporated this plan, after it was proposed by PSEG outside of what was required under Section 316(b), as a special condition to the permit because of its environmental benefits and because it would continue to help minimize the potential for adverse impact from the CWIS. PSEG established the Estuary Enhancement Program (EEP), which is described in greater detail later in this document, to implement these requirements as well as other permit requirements.

Get that? The private costs to PSEG for installing cooling towers to stop the slaughter are more important that all the public costs due to impacts on the Bay and fishery. Privatize the profits, socialize the costs. Capitalism and deregulation at work.

3) The Christie DEP 2015 Renewal Allows PSEG To Exploit EPA Loopholes

After the 2001 permit was issued, there was litigation by environmental groups and a US Supreme Court decision that resulted in EPA adopting new rules under the Clean Water  Act

The Obama EPA rules, spearheaded by Lis Jackson, failed to require that old nuke and other power plants retrofit with cooling towers as “best available technology” under the Clean Water Act.

EPA punted those decisions to state regulators.

The NJ Department of Environmental Protection (DEP) held a public hearing yesterday in Salem NJ on a draft NJPDES water permit for the PSEG’s Salem nuclear power plant, which takes over 3 BILLION gallons of water a day from the Delaware River for cooling the plant:

This draft permit renewal proposes to incorporate the Department’s determination with respect to the permittee’s request for a thermal variance from surface water quality standards for heat and temperature pursuant to Section 316(a) of the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq. (Clean Water Act). Further, this draft renewal permit proposes to incorporate the Department’s determination pursuant to Section 316 (b) of the Clean Water Act regarding the best technology available for the cooling water intake structure and incorporates the requirements of the newly effective federal Section 316(b) regulations.

In a recent devastating Op-Ed, a retired DEP professional wrote that the PSEG nuke plant was  slaughtering so many fish and aquatic life that the plant was essentially “pasteurizing” Delaware Bay:

The Salem Nuclear Power Plant is essentially pasteurizing the Delaware Bay.

I was employed by the New Jersey Department of Environmental Protection for my entire career, and I have to tell you and your readers that I think it is utterly criminal for the current DEP administration to allow PSE&G to continue to slaughter these natural resources that belong to all of us, not to a corporation.

Here is how the DEP regulatory jargon explains this slaughter and pasteurization process:

Back in October 2013, environmental groups, including Sierra Club, Delaware Riverkeeper sued the DEP to force them to issue a permit renewal.

Impacts on Threatened and Endangered Species Don’t Matter

For those who read the fine print in a permit, it rapidly becomes clear that the rules are written to benefit the polluters. It can be quite discouraging, so be forewarned.

Check this one out – EPA ESA regulations explicitly refused to let T&E impacts stop of significantly change the nuke plant:

Among the recommendations that may be made by the [USFWS and NMFS] Services to the facility and the Director are measures to minimize incidental take. EPA expects that any measures the Services recommend to minimize incidental take will be consistent with ESA regulations and guidance, which state at 50 CFR 402.14(i)(2), “Reasonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes.” EPA does not expect that installation of closed-cycle cooling would be specified as a measure solely for the purposes of minimizing incidental take.

You got that? That’s the equivalent of telling USFWS and NMFS biologists to sit-down and shut up. Protection of T&E “may involve only minor changes”, certainly not a $1 billion cooling tower decision. Right.

But that really doesn’t matter, because the federal agencies are in the tank for the energy industry and have been neutered:

The Department shared the 2006 PSEG NJPDES renewal application with USFWS as well as the NMFS. Specifically, the Department sent electronic copies of the application to Christine Vaccaro, Fisheries Biologist for NMFS on February 2, 2015 and to Eric Schrading of the USFWS on January 21, 2015. On April 3, 2015, Steve Mars of the USFWS completed this consultation with a finding of no federal threatened and endangered species in the project area that is under USFWS jurisdiction. As a result, USFWS did not provide any additional input or suggested control measures. No comments were received on the permit application from the NMFS at the time of the draft permit issuance.

Sickening. You see, NMFS biologists realized that it was futile:

When the Nuclear Regulatory Commission extended PSEG-Salem Unit 1 and Unit 2 licenses in 2014, the NMFS issued a biological opinion for the continued operation of the Station (see www.greateratlantic.fisheries.noaa.gov/protected/section7/bo/actbiops/salemhcnmfsfinalbiopjuly172014.pdf). This biological opinion was required by Section 7 of the ESA, which directs federal agencies to consult with the Services before approving an action that will affect an ESA-listed species. In its July 2014 biological opinion, NMFS concluded that license extension by NRC to permit the Station to continue operating with once-through cooling “may adversely affect but is not likely to jeopardize the continued existence of any [ESA] listed species.” As a condition to exempting “incidental takes” of ESA listed species by the PSEG-Salem CWIS, particularly sea turtles and sturgeon, NMFS is requiring PSEG-Salem to undertake certain Reasonable and Prudent Measures (RPMs) to minimize and monitor incidental takes. These RPMs are described in NMFS’s biological opinion and compliance will be ensured by USNRC.

The Game Is Rigged. The system is broken.

Or check the variance (loophole) provided for restrictions on warming the water, regardless of whether it kills all the life in the water (and this “loophole” is supposed to consider the additive effects and cumulative impacts of not only temperature increase, but also withdrawal, impingement, and entrainment, assuring no “appreciable harm” to the “balanced indigenous community“)

We’ll end Part I here.

Coming Soon: Part II – AWOL – How NJ Conservation Groups Sold Out Delaware Bay

Regional Power Grid Operator In Bed With Fossil

[Updates – in *text and below]

In a recent post, I waded into the weeds of documents to expose how the BPU was working covertly with staff of the Pinelands Commission to coordinate approvals of South Jersey Gas pipeline  – I called it a conspiracy, because that is what it is.

Central to that pipeline debate is highly technical information controlled by PJM, the 13 State private grid operator. Examples:

• SJG and BPU have relied on PJM analyses to argue that the pipeline and the BL England plant re-powering are needed to meet projected power demand and to provide “reliability” of electric service to south jersey.
• PJM Reports have been used to mislead the public about required “reliability” upgrades to the grid, by falsely claiming that if the BL England plant shuts down, then new power lines through the Pinelands must be built.
• PJM Reports have been used to mislead the public about how the grid operates in what is called “dispatch” (purchase) and distribution of the power generated by BL England. BPU and SJG have failed to tell the public that the BL England plant is what’s called a “merchant plant”, meaning that it sells it’s power on the open market to the highest bidder, and that’s where the power it generates goes, not to the Pinelands. The BL England plant has not – and may not – clear what’s known as the “capacity market auction” – failure to do that increases the costs and risk of producing power at the plant and questions the need for the plant.

All of these complex and critical arguments are buried in PJM expertise and control.

The public has virtually no role in PJM and the PJM, a private corporate entity, is not transparent or accountable despite the enormous power they have to shape critical energy, economic and environmental policy decisions. (*see:

• The $1.5 Billion Tax You Never Heard Of
• NJ Pays Over $1.3 Billion To Keep Obsolete Coal Plants Open
• Enter the Twilight Zone of Energy Policy

So, with just this one project in mind, today’s NJ Spotlight story reporting that PJM has entered into an agreement to work more closely with the gas industry is deeply troubling – comparatively, the BPU/SJG conspiracy is chump change, see:

• POWER-GRID OPERATOR PLEDGES TO WORK CLOSELY WITH NATURAL-GAS SECTOR

But it’s not just pipelines through the Pinelands that are impacted by the PJM power-play. The implications of PJM expanding its work with the gas industry are literally earth shattering:

more fracking, more pipelines, more gas power plants, higher costs, less renewables, climate catastrophe.

I would have thought that this kind of integration and co-operation would be illegal under laws to stop antitrust and anti-consumer monopoly practices.

The PJM controls the electric grid. They decide what power gets produced, by what fuels, where it gets distributed and at what economic and environmental costs.

Of course  PJM denies all this and says they just operate the grid subject to the deregulated free market, but that’s a lie.

At a time of pending climate catastrophe that demands a rapid transition away from fossil and towards renewables, the LAST thing we need is a closer relationship between PJM and the fossil industry, from frackers to pipelines.

Under the Obama Clean Power Plan, some estimate that up to half of existing coal plants will shut down.

If all that power is replaced by gas, we are doomed.

New research shows that natural gas is as bad or worse than coal with respect to global warming potential – when lifecycle and fugitive emissions are taken into consideration.

And contrary to the drumbeat of media propaganda, natural gas is not “cheap” – the market price does not reflect external costs, for environmental, public health and climate costs, known as the social costs of carbon (SCC).

There are peer reviewed and published estimates of SCC that are used by EPA and State regulatory agencies: (read California decision)

On December 16, 2004, the California Public Utilities Commission (CPUC) approved a requirement that a “carbon adder” be included in resource plans for three of California’s utilities, Pacific Gas and Electric Company, Southern California Edison, and San Diego Gas and Electric Company. The carbon adder explicitly takes into account the social cost of carbon emissions from electricity generation facilities when comparing prices of fossil fuel and renewable generation, as well as demand-side management investments. The carbon adder will be used for utility planning purposes only, and will not be assessed to consumers. Taking the cost of carbon into account will mean that a power source is considered more cost effective if it avoids a ton of CO2 emissions for $8 to $25. The CPUC based this range of costs on a number of studies, including the Idaho Power Company’s 2004 resource planning process, which assessed a carbon adder of $12.30 per ton of CO­2.

When will PJM and NJ regulators consider SCC in critical energy decisions?

When will the media – including NJ Spotlight, the outlet with a focus on energy and environment – report on that?

Does PJM have a similar agreement to work closely with solar and wind generators?

Who is PJM accountable to? They are out of control.

[Update: 8/6/15 – my good friend Bill Neil just asked me a question about PJM’s powers and how PJM interacts with RGGI. I don’t know, but sent along this reply to highlight PJM’s extraordinary powers and how they remain below the media and policy horizon:

Bill – I don’t know how PJM interfaces with RGGI (or the EPA) – I assume that PJM planning accepts those entities as independent and as setting constraints on what they can do.

“We Won’t Sit Down! – We Won’t Shut Up!

Exxon Got Paid Off – Teachers Got Laid Off!

Greetings From Asbury Park!

As a plane flew overhead towing a sign over the beach that said “Chris Christie Makes Us Sick“, what looked to be a couple hundred protesters crashed Governor Christie’s fundraiser today at the old Asbury Park Convention Hall – Greetings from Asbury Park! (the Asbury Park Press has a good photo gallery).

The crowd was composed mostly of teachers, but there were other labor, Sandy recovery, and environmental groups represented as well.

Although the police tried their best to isolate the protesters from the attendees, the Republican suits who write the checks and attended the event had to walk through a gauntlet of chanting protesters well equipped with clever signs (the teachers make the best signs!).

The police initially tried to barricade the crowd across the street from the Convention Hall. But a small group had assembled on the Boardwalk at the entrance to the Hall. The group behind the barricades then moved to join their colleagues on the boardwalk.

Police security became somewhat agitated by this move, but the protesters remained outside the Hall walking a line. The police formed a line in front of the entrance to the Hall and blocked entrance by protesters.

protesters ignore police

But then, as police tried to block protesters from entering the Hall – with a little encouragement from yours truly, who was chanting “Take the public space” – “Don’t Comply with illegal police orders” – – the crowd surged and began pouring into the Convention Hall!

That clearly upset the Christie security people, as now their donors had to go face to face with the protesters, who refused to be cordoned off into some distant designated protest zone (like at the Lockdown at Livingston).

But, it wasn’t long before the cops regrouped, gathered reinforcements and not only ejected the protesters from the convention hall, but drove them off the boardwalk and the entrance to the Hall and back to the original starting point behind the barricades, out of the face of the Christie Crowd and safely across the street from the Hall.

When I objected to this move and encouraged the crowd to return to public space, a group of cops surrounded and threatened to arrest me for – this is a quote – “agitating the crowd”!

Shortly after, for no reason at all, I was again surrounded by police and threatened with arrest. I was not agitating the crowd, but merely standing on public property outdoors by the entrance to the hall that they were trying to keep clear so Christie Crowd could have a free path to the entrance.

I stood my ground and would not be intimidated or moved. The cops backed down.

I spoke with several cops – including supervisors – all of whom had zero understanding or respect for any constitutional rights of protest, free speech, free press, or assembly. Amazing.

The highlight of the protest came at about 6:45, when a group of protesters must have spotted Christie sneaking in the back entrance and rapidly formed a large group who loudly booed, and then chanted: “We won’t sit down – we won’t shut up!

News Reports That EPA Rule Would Require a Huge 49% Cut In NJ Emission Rate

Actual Rate Cut is Just 13%

How Did They Get Such An Important Story So Wrong?

[Update: 8/6/15 – Jim O’Neill at the Bergen Record corrected his story – he reduced the originally reported 49% emissions rate reduction to just 26%. I think it is even less due to overestimates of baseline emissions and emissions rate.

The error was based on incomplete and misleading EPA data. I made a similar error in deriving the 13%, which was based on a baseline of EPA’s phase I interim emission rate for NJ, not the 2012 rate. ~~~ end update]

Last night, it was so hot I couldn’t sleep, so I went on line to read the news.

I was shocked to read a story by Jim O’Neill of the Bergen Record that reported that the Obama EPA Clean Energy Rule would require a huge 49% cut in NJ’s greenhouse gas emission rate. O’Neill wrote:

New Jersey’s 45 power plants emitted a combined 14.5 million metric tons of greenhouse gases in 2013. By comparison, neighboring Pennsylvania’s 62 plants emitted 105 million metric tons and Ohio’s 45 plants emitted 99 million metric tons.

The new rule would require New Jersey to cut its 2012 carbon emissions rate 49 percent by 2030. Some big coal-burning states must reduce their rates by smaller percentages, but their actual amount of emissions cut would be larger.

I immediately knew that could not be right, so I got a copy of the actual EPA Final Rule that EPA released yesterday to check the facts. I suspected The Record story was wrong in 3 ways: 1) the baseline emissions for purposes of the EPA rule (2013); 2) the emissions regulated (45 plants, 14.5 MT); and 3) the emission rate reduction required by the EPA rule (49%).

The EPA’s so-called Clean Power Plan identifies specific steps that New Jersey has to take to reach its target, including cutting carbon pollution generated power plants from 1035 pounds per megawatt hour in 2012 to 531 pounds by 2030.