WolfeNotes.com

“We’ve never had any issue with it. Nobody knows it’s there.”

Previously, I wrote about how Assemblyman Auth (R-Bergen/Passaic) used disgraceful fear mongering to attack renewable energy (i.e. turn off hospital ventilators), spouted climate denial science, and distortions and lies about energy economics.

But I omitted one of his most egregious lies about the Tennessee Gas Pipeline (TGP), which runs through his district.

Auth not only praised TGP, he denied any adverse impacts.

In explaining his vote to oppose the FERC Resolution, Assemblyman Auth stated:

We’re talking about these pipelines. And its not like I live somewhere where we’re not exposed to any of this. We have the Tennessee pipeline that runs through my town. It runs through other towns in the District I represent. And we’ve never had any issue with it. Nobody knows it’s there. Once its in its done. It’s a bucolic area to live. We don’t have any problem with it….This is a clean, economic way to go. We should be doing this.

The Assemblyman is from Ringwood. He needs to get out more often – or just read the Bergen Record, who reported on the extensive damage cause by the TGP, or talk to the North Jersey Pipeline Walkers in his district.

Take a look at the damage the TGP caused to Auth’s neighbors at Lake Lookover in West Milford.

And a few miles west, look at the damage in Vernon, NJ:

And look at the sinkhole collapse a few more miles west in Montague NJ:

Assemblyman Auth is either ignorant or a flat out liar.

Either way, shame on him – and the voters of the 39th District who elected him.

Christie DEP Guts Environmental Regulation Via Lax Enforcement

I initially wrote about this huge shift in Christie DEP enforcement policy way back in 2012, see:

• Christie DEP’s New Enforcement Priorities

Is it DEP Enforcement’s job to serve as “sustainability and stewardship salesmen” and consultants to regulated industries? To provide free advice to help business increase profits?

Maybe those new enforcement visions and priorities explain why DEP enforcement performance is at a record low, as reported by Todd Bates of the Asbury Park Press: …

This “sustainable business” promotional effort is part of a broader Christie/Martin “DEP Transformation” agenda to gut the traditional DEP regulatory enforcement paradigm and replace it with a voluntary, privatized, corporate model (based on private 3rd party “certifications” and “incentives)“.

Now, almost 4 years later, you don’t have to take my word for it – in their own words, DEP confirms it in virtually the same terms I used: (Bergen Record today)

Hajna said the DEP’s compliance division has taken on some new roles, such as working with regulated companies to develop environmental stewardship programs that promote green technology in buildings, energy efficient lighting and manufacturing processes that use fewer harmful chemicals or produce fewer emissions.

“Our regulated community in New Jersey gets it,” Hajna said. “We’re not stuck in 1972. We have a very responsible regulated community out there. We recognize the regulated community is not out there to destroy the environment.”

The Christie DEP has fundamentally changed DEP’s relationship to the “regulated community” (polluters).

Inherent in environmental law is DEP’s adversarial role with the regulated community via a compliance and inspection and enforcement program, the Cop on the Beat.

Historically, strict compliance monitoring and enforcement has served two roles:

1) to create deterrence and an economic incentive to avoid harms to the public health and the environment, and

2) to punish violations and restore damages that result from violations.

The Christie DEP abandoned all that, under the remarkably naive and dangerous premise that “Our regulated community in New Jersey gets it” and is “not out there to destroy the environment.”

The DEP regulated community is predominately for profit corporations. In a capitalist system, their objective is to make profits.

Complying with environmental regulation costs money and cutting corners can reduce costs and increase profits. Cutting corners can lower operating costs and provide competitive advantage and increase market share –

That’s why the US industrial and manufacturing sector moved to unregulated places like China and India.

Those fundamental economic realities have not changed. So, it is absurd for the Christie DEP to assume otherwise.

The economics of compliance boils down to whether DEP oversight and enforcement deter violations, whether:

(probability of detection) X (magnitude of fine)  > (avoided costs of compliance)

If a hazardous waste hauler can save $10,000 by illegally dumping a load of toxic waste in the woods, that would be the avoided cost of compliance.

If the is a 1% chance that he could get caught, then the fine would need to be at least $1 million to deter violation.

If a developer can fill wetlands and create 5 new lots that sell for $50,000 each, he has a huge economic incentive to violate DEP wetlands laws.

If the manger of an industrial facility can increase profits by lowering his operating and compliance costs by various schemes to fabricate water, air or soil sampling data, he will do so if he thinks he won’t get caught.

There have been allegations that the Newark School System stopped routine maintenance of lead filters due to budget cuts, so these same fundamental economics apply to the public sector as well. (The Flint Michigan disaster was a result of an attempt to reduce water costs by just $1 million per year).

It doesn’t matter if DEP managers think they “get it”.

Again, it’s Christie DEP who doesn’t get it.

But, perhaps I’m too naive myself – they clearly do get it.

DEP Commissioner Bob Martin spent his career advising corporations how to maximize profits and privatize public assets.

Suggests reliance on solar and wind will turn off hospital ventilators

A whole new frontier in climate denial

In what might be the most despicable Trenton legislative move I’ve seen over a 31 year career, Assemblyman Auth (R-39, Bergen/Passaic) suggested that the hospital ventilators and breathing apparatus of his constituents would be shut off if NJ pursued aggressive renewable energy goals.

How low will these bastards go? Death panels redux!

The Assemblyman’s absurd remarks were made during yesterday’s Assembly Regulatory Oversight Committee hearing on a Resolution (ACR53) urging federal officials to strengthen natural gas pipeline regulations and defer to State laws and policies.

The ventilator shut off remark came during Assemblyman Auth’s questioning of Toni Granato, a Sierra Club staffer who testified in support of the Resolution.

Auth – who failed to ask questions of the sponsor, Assemblywoman Muoio who previously had testified – chose to focus his twisted intellectual laser beam on Ms. Granato. Auth asked if Sierra would support conversion of the BL England plant to a nuclear plant.

Granato replied that wind and solar were better alternatives, which prompted Auth’s crocodile brain:

I have a couple of constituents in the hospital up near where I live. They are on ventilators. And they told me to come down here today and make sure that we didn’t rely on solar and wind energy only, because they’re a little concerned about their breathing apparatus. 

After what seemed a tortuously long period of jaw dropping, stunned silence, Ms. Granato replied:

I don’t understand how their breathing would be negatively impacted by solar or wind.

Magnifying the absurdity of that moment, Committee Chairman Gusciora then came to Auth’s defense.

Gusciora explained that Auth was referring to the “intermittency” issue, where some renewable critics complain that solar and wind are unable to supply continuous power during certain periods, e.g.. when it’s dark or the wind is not blowing steadily.

But Auth’s remarks on ventilators were not his only absurd or fact free claims at that hearing.

Auth began his inquisition of the environmental witnesses with an indirect climate denial tactic, posing a “gotcha” question to Jim Walsh, Food & Water Watch.

Auth asked Walsh “what is the largest greenhouse gas”? After Walsh refused to bite, he said, “Since you know the answer to that question, why don’t you tell me”.

Auth then answered his own question by saying that water vapor was the biggest greenhouse gas – with a silly giggle.

This is a factually true statement, but as this Yale Climate Center article explains, it is completely misleading and shows a profound ignorance of atmospheric and climate science.

Auth distorted the issue of air quality from conversion of coal and oil to natural gas, claiming that the switch reduces emissions by 37-58% (conflating traditional criteria air pollutants ilk Sox, NOx, and fine particulates with greenhouse gas emissions, and failing to consider lifecycle emissions from natural gas. Recent science suggests that natural gas is as bad or worse for global warming than coal, when lifecycle emissions are considered).

Auth the flat out lied about the alleged drop in prices of energy in NJ as a result of fracked gas and pipeline construction. He repeatedly claimed, without citing his sources, that consumer energy prices (likely electric and gas) had declined by “almost 50% for the average homeowner”

Not even Gov. Christie’s pro-gas BPU makes that claim. Neither does their Energy Master Plan make that claim:

Since the issuance of the 2011 EMP, electricity prices in New Jersey have fallen across all customer classes. On average, the residential customer’s electricity prices have fallen by over three (3) percent between 2011 and 2015.

WTF is wrong with the voters of the 39th District that they elect such a clown?

And I though Senator Cardinale (R-39) was an idiot for his “drainage ditch” remark – something he subsequently walked back.

Auth makes Cardinale look like a rocket scientist.

[Update – I wonder if what Ault said is even true, i.e. did his constituents in the hospital call him up? Did he visit the hospital and talk to them?

Is someone really scaring people in hospitals that their ventilators might be turned off?

Or was Ault just working off Koch brothers talking points?

Maybe some intrepid journalist might ask him. ~~~ end update]

FERC isn’t the only government agency “rubber stamping” pipeline approvals

Democrats run away from their own Global Warming Response Act & NJ DEP powers

For whom the (2 minute) bell tolls

The Assembly Regulatory Oversight Committee heard a Resolution today that urged the President and Congress to reform the Natural Gas Act and the environmental review practices of the Federal Energy Regulatory Commission (FERC).

The Resolution calls FERC a

“rubber stamp for the natural gas industry” that has “devolved to an automatic approval process,  aggrandizing the wealth of those who wish to pump natural gas from the earth before environmental costs are fully understood, and proper controls put into place, and contrary to good public policy of federal, state, and local entities, as well as those of private property owners.

Wow – workers of the world unite! I can almost feel the Bern! Not!

Assemblywoman and sponsor Muoio introduced the Resolution and said the intent was to:

ensure that FERC provides a comprehensive consideration of cumulative impacts, and gives deference to competing state policy determinations, especially open space and farmland preservation.

[Notice that she didn’t mention clean water and the State’s Clean Water Act power in “state policy determinations” – that was no accidental omission.]

Assemblywoman Muoi then whined about NJ’s powerlessness:

… there is little we can do as a State to stop them.

Really? There is little the State of NJ can do to block pipelines? That’s a Big lie.

On top of that lie, somehow the competing State policies Muoio wants FERC to properly consider did not include climate change (NJ’s Global Warming Response Act goals) and the ability of the State DEP to stop pipelines by denying clean water approvals (i.e. Clean Water Act’s Section 401 Water Quality Certificate).

I wrote about the substance of all that yesterday, so today we talk about the politics and what went on at today’s hearing.

It’s bad enough that this was a meaningless advisory Resolution – a pure symbolic gesture with no teeth.

But for the Resolution to exclude the two most salient State policy and legal powers – while stressing powerlessness and the importance of FERC considering State open space preservation policies and private property – is “mind numbing” and it reveals the Kabuki.

The other fact that exposes the Kabuki was the absence – total absence – of all the oil and gas industry lobbyists, the Chamber of Commerce and Business and Industry Association lobbyists, and the contruction and trade unions. They all fiercely support gas pipelines and turn out in droves when there’s meaningful shit on the line.

They didn’t even show up. Not a one of them. Why was that?

It was because they all knew it was symbolic Kabuki and didn’t even waste time showing up. It was safe, no threat.

The only ones duped were the environmentalists, who not only were the only ones who showed up but – in an embarrassing moment – actually applauded when the Resolution was released. Yay!!!

Committee Chairman Gusciora (D-Mercer) had to be careful in his Kabuki.

He had to walk a fine line by giving just enough of a platform to the environmentalists to earn their praise, but not too much leeway to give the gas and oil lobbyists a scare or expose the fact that the Democratic leadership – in both the Senate and Assembly – SUPPORT pipelines and natural gas.

That’s a difficult Kabuki dance step!

Senate President Sweeney – a big Pinelands pipeline supporter – might just kick Chairman Gusciora’s ass if he stepped too far out of line.

Of course, in my testimony, I called Bullshit on all this, and said that if legislators are serious about stopping pipelines, then they needed to focus right here in our own backyard and on DEP powers to kill pipelines. Like New York and Connecticut recently did in killing pipelines. [Gee, Delaware Riverkeeper just filed a CWA Section 401 lawsuit – in Pennsylvania.]

Chairman Gusciora began the hearing on the wrong foot. Citing a “plethora” of witnesses signed up to testify (only 10 people), Chairman Gusciora set a 2 minute time limit – was he competing with the Christie DEP traffic signal clock? Or the Pinelands Commission’s restrictions? He’d never have done that to the Petroleum Council, or Chamber of Commerce, or BIA or union lobbyists.

Gusciora did not enforce that 2 minute limit on the first 7 witnesses who testified, despite the fact that there was an obnoxious bell that rung at the 2 minute mark. Most witnesses testified for well over 2 minutes, with 1 exception (I just listened to the recording and used a stopwatch to time each one).

When my name was called to testify – #8, following the fist 7 who blew through the 2 minute bell without objection from the Chairman – Gusciora went out of his way to mock me. Listen to the tape yourself and note the pause and inflection in his voice as as he introduces me as – slight pause –  “a citizen”. That’s how one would voice would pause for a term “in quotes”. Subtle way to diss someone (like lilting one’s voice).

Of course I fired back at that disrespect before I even sat down by saying that yes, I was a citizen, and in short pants no less! (maybe next time I’ll wear a toga):

Guscior’a disrespect was in stark contrast to the respect I got from Assemblywoman Muoio’s Chief of staff, who immediately responded to my request for amendments with this note of thanks:

Hello Bill,

Thank you for the following information and suggestions. I would be happy to discuss in more detail the genesis of ACR53; the amendments we are already planning to adopt, and the inclusion of the items below in this, or perhaps another resolution that we have in the works that is specific to the NJDEP.

We appreciate your expertise and look forward to continuing our discussion.

Her response was based solely on the content of my recommendations, which she obviously recognized as valid and reflecting expertise.

Anyway, sure enough, just after the 2 minute bell tolled on my testimony, the Chairman interrupted me (something he did not do with any other witness who exceeded 2 minutes).

I took exception to that, and, at the conclusion of my testimony, after he rejected my request for more time and shut me down, I  totally lost my cool and told him to “stick it” – here’s the verbatim transcript:

Thank you Mr. Chairman, my name is Bill Wolfe, I live in Bordentown.

I conveyed a written request for amendments to the sponsors.

The sponsor, Assemblywoman Muoio, correctly identified the intent of the Resolution, which is to make FERC and Congress aware of competing – of harmonizing federal energy and pipeline policy under FERC review with competing state policies. That’s a quote from her remarks which I completely agree with.

So what I want to focus on are the competing state policies in NJ that are key, because I don’t think that it is properly and fully understood that under the Natural Gas Act, state and local laws, policies, and standards are pre-empted, with 2 exceptions.

And that’s State powers under the Clean Water Act and State powers under the Coastal Zone Management Act.

Both those powers were recently used in the State of Connecticut to deny a pipeline permit and in the State of New York to deny a pipeline permit.

Those should be the leading cases that we should focus on as a State, because we currently have that authority at the Department of Environmental Protection – right now – to deny permits for these pipelines.

This Administration is not utilizing those powers.

So if the Legislature wants to express a progressive state policy to FERC AND to the Administration and to the people of the State, there has to be inclusion in this  Resolution of the powers of the State under the Clean Water Act and the Coastal Zone Management Act. That’s point #1.

The second point – (digressing) – it would be as if it were 1955 and we are talking about integrating schools schools and we didn’t talk about the Brown v. Board decision.

That’s literally how big this 800 pound gorilla is hitting us in the face – that’s how big it is.

It’s exclusion from  this Resolution is mind numbing to me. I don’t understand it.

Second point (the obnoxious 2 minute Bell rings) – Global Warming Response Act – I hear the bell.(time 2:10) I spent 31 years working on environmental policy in the State of NJ and I worked for 3 administrations at the Governor’s level and I don’t think I deserve 2 minutes.

[Chairman Gusciora interrupts] – Well Bill, I’ve got to correct you on that. I’ve given 2 minutes to everybody [Note: factually not true]. I can give you a little leeway but…

[Wolfe interrupts – There was more than a 2 minute response to a question from a colleague. I understand …

[Chairrman interrupts – Bill, now that’s it. You’re being disrespectful.

[Wolfe interrupts – Yeah, I got it. It’s disrespectful to me professionally. You can take your chairmanship and stick it.

Chairman – Thank you.

As Dorothy said: “There’s no place like home”.

The NJ Legislature doesn’t need to send flares across FERC’s bow – they can start right in their own backyard with oversight of Christie’s BPU and DEP -who rubber stamp everything – and strengthening and enforcing NJ laws.

[End note: One witness proudly testified that she had gone to Washington with a group of NJ Mayors yesterday and met with the Obama White House’s Council on Environmental Quality and with US EPA.

I’d hate to burst her bubble, but the Obama administration’s “all of the above” energy policy has promoted gas and pipeline expansion – Obama himself bragged about his record miles of pipelines installed. Secretary of State Clinton promoted US gas exports and fracking around the world:

Under my administration, America is producing more oil than at any time in the last eight years. We’ve opened up new areas for exploration. We’ve quadrupled the number of operating rigs to a record high. We’ve added enough new oil and gas pipeline to circle the Earth and then some,” Obama said (source)

(Yes, sadly, the Nobel Peace Prize winner, the man with a kill list who bragged hat he’s “really good at killing people” and has waged more war that George Bush, also brags about torching the planet.)

EPA has rolled over on strictly regulating fracking and has done nothing to claw back the 2005 Cheney Energy Policy Act exemptions for fracking.

Do these folks not know when they are getting played?]

 

Current version ignores climate change and NJ DEP’s Clean Water Act powers

Major omissions reveal flawed strategy

On Thursday (5/12/16), the Assembly Regulatory Oversight Committee will hear ACR 53 – for an overview of what that is about, see NJ Spotlight:

• NJ COULD ASK FEDS TO RETHINK POLICIES ON SITING INTERSTATE PIPELINES

Amid a growing outcry against the expansion of natural-gas pipelines, a New Jersey legislator wants to press the federal government to revamp the laws governing approval of interstate energy projects. …

The proposal is being advanced at a time when at least 15 new gas pipeline expansions or projects have been either approved or are under review in New Jersey, a trend that has sparked wide opposition around the state.

With a buildup like that, of course I rushed to read the Resolution.

Imagine my extreme disappointment upon reading that the Resolution failed to even mention climate change or include the federal Clean Water Act Section 401 Water Quality Certificate requirements.

That is the legal power that NY DEC just used to kill the proposed Constitution pipeline, so it is a remarkable oversight.

That is the legal power that Chesterfield and Bordentown Townships just relied on to petition FERC for a stay and rehearing on the Southern Reliability Link Pinelands pipeline, as I wrote yesterday.

In addition, the Resolution failed to include the federal Coastal Zone Management Act. That is the legal power the State of Connecticut use to kill the proposed Islander East pipeline.

So, I fired off this letter to the sponsors – if they don’t agree to these requested amendments, I have to question either their competence or their motives.

I am writing this today, because NJ Spotlight’s set up story was spun so favorably – itself a remarkable fact given the egregious flaws in the Resolution –  and the Thursday legislative hearing is likely to get lost in press coverage of the DEP budget. The Senate is hearing the DEP budget at the same time. And I don’t think that is a coincidence:

Dear Assembly-persons Muoio and Gusciora:

I am writing to you as sponsors of ACR 53  which “urges President and Congress to revise laws concerning interstate natural gas pipeline approvals to more fully address adverse impacts.”

The ACR is an expression to the President, Congress, and FERC of NJ State law and policy. As such, it should reflect the most critical provisions of State law related to gas pipeline approvals and the full scope of adverse impacts, based on the best available science.

Accordingly, I suggest the following 3 amendments to improve the ACR:

1) Global Warming Response Act

In 2007, the Legislature passed and Governor Corzine signed the Global Warming Response Act (GWRA) P.L.  2007, c. 112;  (N.J.S.A 26:2C-37), at the time, one of the strongest greenhouse gas laws in the country.

Simply put, NJ can not meet the aggressive GWRA emission reduction goals with continued investments in and construction of major fossil fuel infrastructure.

Perhaps more importantly, the most recent science suggests that we need to leave at least 80% of known fossil fuel reserves (coal, oil, & gas) in the ground if we are to limit warming to 2 degrees Celsius, and even more to avoid the 1.5 degree goal recently embraced in the Paris climate accords.

Finally, methane is a far more potent greenhouse gas than carbon dioxide, especially in the short run. Several credible recent studies document that the lifecycle greenhouse gas emissions from natural gas are at least as bad – or even worse – than coal, thus gas is not a “bridge fuel” to a stable climate future.

The ACR must be amended to reflect the goals of the NJ GWRA and the most recent science.

2) Clean Water Act Section 401 Water Quality Certificate requirements

The federal Clean Water Act is not preempted by the federal Natural Gas Act (NGA) or the Federal Energy Regulatory Commission (FERC).

NJ DEP administers a federally delegated Clean Water Act program.

As you may know, on April 22, 2016, the NY State Department of Environmental Conservation (DEC) denied a required Clean Water Act Section 401 water Quality Certificate (WQC) of the proposed Constitution pipeline.

The NYS DEC decision should be a model for NJ DEP. For that DEC decision, see:

http://www.dec.ny.gov/docs/administration_pdf/constitutionwc42016.pdf

As you may know, on May 9, 2016, Chesterfield and Bordentown Townships filed petitions with FERC seeking a stay for, among other things, failure to comply with the Clean Water Act Section 401 WQC requirement.

Specifically, the Chesterfield brief lays out the legal framework:

“Section 717(c) of the Natural Gas Act preserves the applicability of the Clean Water Act to projects subject to the Commission’s certification authority. Under the Clean Water Act, the States are responsible for enforcing water quality standards on intrastate waters. 33 U.S.C. § 1319(a). To that end, Section 401 of the CWA provides that “[a]ny applicant for a Federal license or permit to conduct any activity including, but not limited to, construction or operation of facilities, which may result in a discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the provisions of . . . this Act.” 33 U.S.C. § 1341(a)(1) (emphasis added). Most importantly for purposes of this motion, the CWA  provides that “[n]o license or permit shall be granted until the certification required by this section has been obtained or has been waived. . . .”Id. 

In accordance with the plain terms of Section 401, the United States Supreme Court has held that the CWA “requires States to provide a water quality certification before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters.” PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700, 707 (1994) (emphasis added). Numerous other courts concur. See City of Tacoma v. FERC, 460 F.3d 53, 67-68 (D.C. Cir. 2006);Keating v. FERC, 927 F.2d 616, 619 (D.C. Cir. 1991) (“Without such state certification, neither the FERC license nor the Corps permit may be issued.”); Fredericksburg v. FERC, 876 F.2d 1109, 1111 (4th Cir. 1989) (“Virginia’s denial of such certification precludes issuance of the license.”).”

[complete FERC petitions available upon request]

I strongly urge you to amend the Resolution to include mandatory Clean Water Act Section 401 requirements.

3) Coastal Zone Management Act

Similar to the federal Clean Water Act, the exercise of State “consistency determinations” pursuant to State law and the federal Coastal Zone Management Act are not preempted by the NGA or FERC.

The proposed “Islander East” pipeline case in Connecticut provides legal precedent and an example of how the State of Connecticut used CZMA powers to deny approvals for the pipeline.

The State’s denial was upheld by the US District Court, affirmed by the US Court of Appeals, and the US Supreme Court denied certiorari, see:

ISLANDER EAST V. MCCARTHY, 525 F.3d 141 (2nd Cir. 2008)

https://casetext.com/case/islander-east-pipeline-v-mccarthy

I strongly urge you to amend the ACR to include NJ DEP powers under the CZMA and State coastal laws.

I am available to provide additional information to support the above amendments or work with OLS or your staff.

I appreciate your favorable consideration and will testify on the ACR on Thursday before the Assembly Regulatory Oversight Committee.

Sincerely,

 

cc: Assemblywoman Spencer and Senators Smith, Bateman, Greenstein, and Gordon