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The NJ Supreme Court Ruled That DEP Is In Charge Of Management Of Black Bears, Including Policy On Whether To Hunt

September 24th, 2018 No comments

Fish and Game Council “independence constrained” &”subjugation to DEP authority”

DEP approval is a “condition precedent” to the Council’s pursuit of a hunt

Statements By Gov. Murphy & DEP Commissioner McCabe Are Flat Out False

Statements by Gov. Murphy – including provisions of his Executive Order #34 – and the Legislative testimony of his DEP Commissioner Catherine McCabe regarding their alleged lack of power to over-rule the Fish and Game Council and block the black bear hunt are flat out false and directly contradict the NJ Supreme Court’s ruling on that very issue.

I want to be very clear here, so let’s break this down.

First we will restate the Governor’s statements – which as I previously wrote are echoed in the text of Executive Order #34. Next, we will excerpt text from the Supreme Court’s ruling that applies to each statement.  

We will do the same thing for DEP Commissioner McCabe’s testimony to the Senate Budget Committee last May in response to a direct question by Senator Greenstein:

Greenstein question: “Will the DEP uphold Governor Murphy’s commitment to stopping the bear hunt this year and to look at nonlethal methods for bear control?”

McCabe response: “The legal authority for controlling the bear hunt resides, as you may know, with the Fish and Game Council and we have consulted with the Attorney General and advised the Governor’s Office of that. …. In order to change that [the hunt], we would have to go back to the Game Council and provide some evidence of why a different arrangement, or the science would argue for reducing the amount of hunting or eliminating the hunting. “ (listen to testimony)

Apparently based on Commissioner McCabe’s recommendation, the Governor made 3 claims, all of them false, as follows:

1) the Fish and Game Council is in exclusively charge of the bear hunt:

“[The Council] has the sole authority to authorize a bear hunt.”

2) the Governor has no power to cancel the hunt:

“Pursuant to a New Jersey Supreme Court decision in 2005 and other related court decisions, if the council recommends a bear hunt and properly adopts regulations implementing a hunt, the governor does not have the ability to unilaterally cancel it,”

3) the Legislature must act:

“In order for the hunt to be stopped, either the Legislature must act or the council must adopt new regulations that do not include provisions for the hunt.”

4) The Governor’s statement also is false by material omission, because he failed to mention the powers of his DEP authorized by the Legislature and upheld by the Supreme Court. It is also false and misleading by stating that the Supreme Court somehow limited the Governor’s powers regarding the hunt. However, the Court said nothing about the powers of the Governor.

5) McCabe’s testimony is false and misleading. It is false by material omission regarding what the Court found regarding DEP’s power over the Fish and Game Council.

It is misleading by conflating “science” with the DEP’s “comprehensive conservation policy” powers that the Court upheld. As McCabe – a lawyer and former US EPA Environmental Appeals Board Judge – surely knows, DEP “policy” is a far broader power and administrative enterprise than “science”.

6) The Gov.’s. statement also badly mis-states the law and his Executive Order violates the NJ Constitution’s separation of powers and raises “non-delegation doctrine” issues.

The Gov. claims that he lacks Executive power to over-ride the Fish and Game Council.  Let’s examine that claim in light of some basics.

The Fish and Game Council was created by the Legislature and, as the Supreme Court ruled, is subject (the Court used the term “subjugation”) to DEP authority discharged by the DEP Commissioner. The DEP is an executive branch agency and the Commissioner serves at the pleasure of the Governor. The Gov. may not direct the DEP Commissioner to violate the law, but he can direct the DEP Commissioner to implement public policy that is in the public interest.

The Council, after approval by Gov. Christie’s DEP Commissioner Bob Martin, adopted a “Comprehensive Black Bear Management Plan” via regulation in August 2010 which included a hunt. That CBBMP was updated, expanded, and renewed via regulation in October 2015.

The updated CBBMP regulation expires and is in effect until 2021. 

Regardless of the expiration date, no administrative agency has the power to legally and irreversibly bind a future administration.

To do so would grant the Fish and Game Council legislative powers because the Christie DEP and F&G Council would be binding a new Governor and DEP.

That is a violation of the separation of powers embodied in the NJ Constitution.

It also could be a violation of the “non-delegation doctrine”, by delegating DEP’s superior conservation policy powers to the F&G Council.

Additionally, it violates Constitutional “anti-entrenchment” principles.  By analogy, it is well settled law that “one legislature may not bind the legislative authority of its successors” (UNITED STATES, PETITIONER v. WINSTAR CORPORATION et al.) A similar principle holds, but for different reasons, to the Executive branch.

The DEP has the authority delegated by the Legislature to propose, adopt, amend, and repeal regulations. The CBBMP is implemented via a regulation and amendment to DEP Game Code. DEP, as recognized by the Supreme Court, has exclusive power to adopt “conservation policies” that bind the Fish and Game Council and govern the the black bear population and the management thereof.

Contrary to what DEP Commissioner McCabe claims, the DEP does not have to “go back” to the Fish and Game Council to get their approval of regulations to amend regulations.

The Murphy DEP could adopt statewide “conservation policies” via regulation and/or simply amend or repeal the current Christie DEP Game Code regulations that govern the bear hunt to eliminate hunting as a management tool and instead rely on non-lethal management methods. That regulatory policy change does not need to be based exclusively on “science”, as recognized by the court who upheld DEP’s “conservation policy” powers.

The DEP could do this via emergency rule making, which does not require public notice, hearings and comment prior to adoption. So there is time to d this before the planned December hunt.

The Governor also has broad powers – including emergency powers – to stop the hunt and direct DEP to act. . Obviously, Governor’s have the power to change policy. And the NJ Governor, constitutionally, is one of the most powerful Executive branch powers in the country. But we won’t go into those powers today.

We have a long standing problem in mischaracterizing the Supreme COurt’s ruling. Interestingly, the Christie DEP totally misrepresented the Supreme Court’s decision in the public notice of the proposed rule to the updated CBBMP, which claimed:

Five years ago, the Council created the CBBMP in response to a New Jersey Supreme Court opinion in which the Court stated that the Department of Environmental Protection (Department) could not cancel a hunt authorized by the Council, but that the Council could not authorize a hunt absent a comprehensive management policy.

As we explain, there is nothing explicit or implicit in the Supreme Courts decision that says “the Court stated that the Department of Environmental Protection (Department) could not cancel a hunt authorized by the Council“. The court did not “state” that.

So now let me explain exactly how these 6 statements noted above are false and provide the Supreme Court’s text to back that up.

In the 2005 case the Gov. refers to, named : U.S. SPORTSMEN’S ALLIANCE FOUNDATION; v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, the NJ Supreme Court issued an opinion regarding the legal powers of the Department of Environmental Protection and the Fish and Game Council with respect to the management of black bears, specifically including control of the bear hunt.

In a slam dunk decision with no wiggle room – the Court described its ruling as “ineluctable” – the Court found the exact opposite of the Governor’s statements.

Directly contradicting the Gov. and DEP Commissioner’s claims, the Court ruled that:

1) DEP is in control of statewide conservation policies ;

2) that DEP approval is a “condition precedent” of the Council’s ability to authorize a bear hunt; and

3) that the while the Fish and Game Council has shared powers, they are subordinate to DEP, the agency solely responsible for what the Court said was “ a unified approach to conservation and environmental protection under the authority of the Commissioner.” 

Here is the applicable text of the Court’s opinion:

the Fish and Game Council’s ability to authorize a bear hunt is subject to the statutory condition precedent of the Commissioner’s earlier approval of the very comprehensive policies governing the propagation of black bears.

Our conclusion regarding the Commissioner’s authority is ineluctable not only because of the approval language but because the entire statutory scheme was intended to create a unified approach to conservation and environmental protection under the authority of the Commissioner.  Although the Fish and Game Council may act without day-to-day veto by the Commissioner, its actions exist within a larger universe of comprehensive environmental policies.   If it does not act in accord with those policies, the Commissioner is empowered to intervene.

In fact, the Supreme Court explicitly rejected the views of Gov. Murphy and McCabe that DEP’s powers are limited and the Fish and Game Council is solely in charge of the hunt.

Specifically, the Supreme Court case was an appeal by the DEP of an adverse Appellate Court ruling.

The Supreme Court sided with DEP and reversed a prior Appellate Court opinion. The Appellate Division ruling the the Supreme Court reversed had found:

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or  to otherwise interfere with Fish and Game Code regulations governing the hunt.

The Supreme Court ruled that:

The judgment of the Appellate Division is reversed.

The Supreme Court laid out a detailed historical and rigorous legal analysis regarding the relative powers of DEP and the Fish and Game Council, going back over 70 years.

And in issuing the opinion, the Supreme Court’s decision used incredibly clear and decisive language, describing their opinion as “ineluctable” – or in layman’s terms, a slam dunk, ironclad, no wiggle room opinion.

“Ineluctable” is defined as follows:

unable to be resisted or avoided; inescapable.

It is shocking that the DEP Commissioner somehow interpreted that 2005 “ineluctable” Supreme Court decision to mean the exact opposite of what the court actually ruled. Did she even read it?

In our next post, will will lay out exactly how the Governor and the DEP can and should act to stop the hunt and reign in the Fish and Game Council.

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A Black Market In Black Bear Hunt Emerges On Facebook

September 23rd, 2018 No comments

Hunters Plan “Bear Drive” To Push Bears Off State Lands

Facebook Posts Suggest Open Defiance And Potential Violence

Gov. Murphy’s Executive Order Sows Chaos

Just days after Gov. Murphy issued Executive Order #34 to block the bear hunt on public lands, chaos has ensued as entrepreneurial private landowners market lands and access fees, hunters seek to game the system, and animal rights groups plan counter-measures.

As we wrote last week:

Wealthy private landowners also will extract a rent, by charging hunters access fees – a premium in addition to State license fees.

Sure enough, that’s exactly what’s going on in the Facebook screenshots below.

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Other Facebook posts by hunters expose plans to defy Gov. Murphy and challenge DEP Park Rangers’ enforcement – suggesting the need for the National Guard. Other hunters are advocating that hunters organize “drives to push bear off state lands” onto private property and to “hunt the line”:

Screen Shot 2018-09-23 at 1.28.10 PM

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All this chaos was a foreseeable consequence of privatizing the hunt, which naturally leads to irrational competition, fraud, and rent seeking behaviors. But the Gov.’s vision is warped by his Wall Street investor days at Goldman Sachs.

The Governor has 2 months to direct his DEP to gain control of this growing and foreseeable chaos – which is surely a new take on his former Goldman Sachs billionaire’s understanding of a “bear market” – a situation were there literally is “skin in the game”.

If not, surely the Courts will intervene to stop what is looking like developing into a very dangerous situation, with armed hunters openly defying laws and armed DEP Park Rangers.

No doubt there are extremists and agents provocateur who want a repeat of the armed occupation and confrontation by supporters of cattle grazer Cliven Bundy at the federal  Malheur National Wildlife Refuge.

There will also be serious safety risks from armed hunters competing to access restricted private lands – located along narrow rural roads with no parking, signs, or other safety measures  – and from an increased density of hunters on a smaller acreage of private lands as state lands are withdrawn from the hunt.

Some landowners whose land is posted “No Hunting” face the possibility of confrontations with armed hunters – likewise, hunters are sure to engage in widespread trespassing and face arrest.

Finally, there are obvious risks from armed hunter confrontations with protesters and animal rights activists.

And the best case, if no violence or accidents occur, will be massive trespassing on private property, widespread defiance of DEP bear hunt regulations, and a highest bidder mentality trophy hunt slaughter of hundreds of majestic black bears.

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NJ Gov. Murphy Just Effectively Privatized The Black Bear Population

September 18th, 2018 No comments

Executive Order Blocking Bear Hunt on Public Lands Contradicts Science and Law

Gov. Murphy’s Statement Contradicts “Ineluctable” NJ Supreme Court Ruling

[Update below – 9/21/18]

Caveat: I have not been following the bear hunt issue and am not a legal or technical expert on bear management, but I just learned that back on August 20, 2018, Gov. Murphy issued Executive Order #34 that effectively blocked the bear hunt on State lands, but allows it on private lands.

Although I have not followed this issue closely (since 2010), based on reading the documents, it seems pretty clear the Gov. got it wrong and is ducking the issue.

Under the misguided – and I argue illegal – Murphy policy, it is private landowners who will decide if there is a bear hunt. Private landowners will decide if, when, and where a hunt occurs. Private landowners will decide who hunts, effectively usurping State power to issue hunting licenses and regulate hunting. Wealthy private landowners also will extract a rent, by charging hunters access fees – a premium in addition to State license fees.

That makes bear hunting a private privilege – just like some billionaire’s and elite hunting clubs prefer.

None of this is legal and all of it is wrong.

Bears obviously do not live or migrate according to the ownership of lands that comprise their habitat. The Gov.’s distinction between public and private lands has no scientific basis, conflicts with science, and defies common sense.

Legally, the bear population is a natural resource that is held in trust by the State, not private land owners, just like fish. For example, a private land owner along a trout stream can limit public access to the stream, but they can not disregard State restrictions on trout. There can not be State fishery restrictions in streams flowing through public lands that are different from restrictions in streams flowing through private lands. The State management policy runs with the wildlife natural resource, not the ownership of the land.

Similarly, the rain that falls on private land can not be impounded and taken for private use without State approval, just like the groundwater under the land is not privately owned but held in trust and managed by the DEP.

At a fundamental level, Gov. Murphy’s distinction between public and private lands with respect to wildlife management contradicts all legal principles and traditions of wildlife management.

The Gov.’s Office is defending this blatantly political “compromise” on the basis that the Governor and the DEP Commissioner lack legal authority to ban the hunt statewide – claiming that the legislature must act. The Bergen Record reported:

Murphy couldn’t issue a complete ban on bear hunting because of a New Jersey Supreme Court decision in 2005 and other court decisions, which ruled that if the state Fish and Game Council recommends a bear hunt and properly adopts regulations implementing it, the governor does not have the ability to unilaterally cancel it, Murphy’s office said. In order for the hunt to be stopped, either the Legislature must act or the council must adopt new regulations that do not include provisions for the hunt. 

That legal position is reflected in the text of Murphy’s Ex. Order #34, which states:

WHEREAS, the authority over the black bear hunt rests with the Council and several court decisions have made it clear that neither the Governor nor the Commissioner have the authority to unilaterally alter or cancel the black bear hunt;

WHEREAS, while neither the Governor nor the Commissioner can unilaterally prevent a black bear hunt, the Commissioner has clear authority to direct and coordinate the use of all public lands under DEP’s jurisdiction, including instituting a ban on hunting on said lands

While the Gov. and DEP may not have the authority to “alter or cancel” the bear hunt, the statements are highly misleading.

In contrast to the Gov.’s claims, the DEP Commissioner clearly has the authority to block the hunt via the Commissioner’s powers pursuant to  N.J.S.A. 13:1B-28 which provides: (my emphasis):

In addition to its powers and duties otherwise hereinafter provided, the Fish and Game Council shall, subject to the approval of the commissioner, formulate comprehensive policies for the protection and propagation of fish, birds, and game animals and for the propagation and distribution of food fish and for the keeping up of the supply thereof in the waters of the State.

That specific power has been upheld by the NJ Supreme Court, in the case cited by the Governor.

The Supreme Court’s 2005 ruling was a comprehensive exposition on and resounding support of upholding the DEP Commissioner’s powers over the Fish and Game Council with respect to the bear hunt – the exact opposite of Gov. Murphy’s claims.

As NJ.Com reported:

Murphy’s office, in a statement accompanying his announcement Monday, offered an explanation.

The statement noted that the N.J. Fish and Game Council is separate from the governor’s office, is composed primarily by “sportsmen and farmers,” and has the sole authority to authorize a bear hunt.

“Pursuant to a New Jersey Supreme Court decision in 2005 and other related court decisions, if the council recommends a bear hunt and properly adopts regulations implementing a hunt, the governor does not have the ability to unilaterally cancel it,” read the statement.

“In order for the hunt to be stopped, either the Legislature must act or the council must adopt new regulations that do not include provisions for the hunt.”

The Murphy statement is highly misleading and outright false.

The Gov. ignores the powers of his DEP Commissioner.

DEP Commissioner can block the bear hunt by refusing to approve [*or repealing or amending] the “comprehensive policies” for black bear management recommended by the Fish and Game Council, which must be reviewed and approved by DEP and promulgated via regulation as the Comprehensive Black Bear Management Plan. [*See update below]

And, as the NJ Supreme Court’s 2005 decision clearly found, the Fish and Game Council clearly does not have “sole authority” to authorize a bear hunt.

The Gov. is referring to a 2005 NJ Supreme Court decision in: U.S. SPORTSMEN’S ALLIANCE FOUNDATION; v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION.

In that case, the Supreme Court that ruled on the powers of the DEP Commissioner and the Fish and Game Council with respect to the bear hunt.

The decision went into great detail on the history of the formation of the DEP and the powers of the DEP Commissioner with respect to the Fish and Game Council.

The decision explicitly reversed a prior 2004 NJ Appellate Court decision that found that the DEP Commissioner lacked statutory authority to block the bear hunt.

Here is the procedural history the Supreme Court restated:

The complete facts and procedural history of this case are reported in U.S. Sportsmen’s Alliance Foundation v. New Jersey Department of Environmental Protection, 372 N.J.Super. 598, 860 A.2d 463 (App.Div.2004).   In a nutshell, in early 2004, the Fish and Game Council considered a proposal to hold a bear hunt similar to the hunt that had taken place in 2003.   The 2003 bear hunt was the first authorized in New Jersey since 1970.1  The Commissioner publicly supported the 2003 hunt;  it was not until 2004 that he opposed a hunt outright due to fiscal concerns, the decrease in bear-human interactions, and the lack of data supporting the Division of Fish and Wildlife’s (Division) projections regarding the bear population. Notwithstanding that opposition, the Fish and Game Council adopted the 2004-2005 Fish and Game Code that authorized the bear hunt.   The Commissioner subsequently directed the Division not to issue or process applications for bear hunting permits.   The U.S. Sportsmen’s Alliance Foundation, New Jersey State Federation of Sportsmen’s Clubs, Gerald McCusker, Anthony Cali, and Edward O’Sullivan filed a notice of appeal challenging the Commissioner’s directive.

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or  to otherwise interfere with Fish and Game Code regulations governing the hunt.

The DEP, the Commissioner, the Division, and the Director of the Division (collectively the Commissioner) petitioned for certification, which we granted.  U.S. Sportsmen’s Alliance Found. v. N.J. Dept. of Envtl. Prot., 182 N.J. 151, 862 A.2d 59 (2004).

(for context, here are DEP Commissioner Campbell’s initial objections to the hunt, expressed in a March 6, 2003 letter to the Fish and Game Council (see disclosure below). After reading that letter, I find it hard to understand how the Court found “The Commissioner publicly supported the 2003 hunt“. Maybe I’m confused about timing.)

Here is the Supreme Court’s ruling:

Within DEP divisions are agencies like the Fish and Game Council.   Although not identical due to amendments at various times, the leitmotif that runs through all of the relevant enabling legislation is the interconnection between the councils and the Commissioner and the recognition that while those entities possess authority in varying levels, their independence is constrained by their uniform subjugation to DEP authority.2  Specifically in  the instance before us, the Fish and Game Council’s ability to authorize a bear hunt is subject to the statutory condition precedent of the Commissioner’s earlier approval of the very comprehensive policies governing the propagation of black bears.

Our conclusion regarding the Commissioner’s authority is ineluctable not only because of the approval language but because the entire statutory scheme was intended to create a unified approach to conservation and environmental protection under the authority of the Commissioner. Although the Fish and Game Council may act without day-to-day veto by the Commissioner, its actions exist within a larger universe of comprehensive environmental policies.   If it does not act in accord with those policies, the Commissioner is empowered to intervene. …

The judgment of the Appellate Division is reversed.

Recall that the Appellate Division ruling the the Supreme Court reversed found:

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or  to otherwise interfere with Fish and Game Code regulations governing the hunt.

This Supreme Court ruling “reversed” that Appellate Division and that ruling very clearly contradicts the Governor’s claims.

What am I missing? Was there a subsequent Supreme Court case that clarified this decision and restricted the DEP Commissioner’s powers?

I found a 2010 Appellate Division opinion that upheld the hunt, but that case was NOT based on the powers of the DEP Commissioner, but instead was an arbitrary and capricious challenge to Fish and Game Council’s comprehensive management plan.

Readers and DEP experts that know this issue, please educate me. Send corrections to me at:  bill_wolfe@comcast.net

[Full disclosure: I was hired by and worked as a policy advisor to Commissioner Campbell from 2002-2005. Aside from involvement in drafting the Highlands Act that increased protections of  800,000 acres of black bear habitat, I had no role in bear management policy.]

[Update – 9/21/18 – A source I know to be knowledgeable and in a position to know sent me a not for attribution email that confirmed my analysis, but suggested DEP could not act until current rules expire

Bill, it’s XXXXXXXXXXX.  I just read your piece on the bear hunt.  Please don’t quote or attribute this to me, but the piece you are missing on the Commissioner’s authority is that the regulations and black bear management plan are already in place and had been approved previously.  The Commissioner lacks the power to now go back and reverse those previous approvals.  Your analysis would be correct when they expire (five year plan which I think ends next year) and thus requiring a new black bear management plan to be approved by the Council and signed off by the Commissioner

Now on the Governor’s power I will note that the SC did not address that and it remains an open question to me if the Governor could have stopped the hunt by his own EO.  Obviously they decided not to take this route.

I replied as follows:

I considered that issue – i.e. adopted rules in place.

But as you know, DEP has power to amend rules at any time. No need to wait for expiration.

McCabe got questions on bear hunt during her **DEP budget hearing and she said she had no power unless the “science” changes.

That’s nonsense.

The “policy” can change. The SC noted DEP powers to reject Council’s hunt for consistency with statewide “conservation policies”.

DEP could simply say that the policy has changed, that a hunt is no longer an acceptable management tool. Public recreational values in observation, photography, and the “existence value” of bears by far outweighs the recreational uses of a handful of hunters. DEP balances competing interests all the time, e.g. classification of uses for surface and groundwaters; designation of acceptable degradation of surface and groundwaters, wetlands classifications, et al. All that is necessary is legislative authority to do so and the SC clearly found DEP powers exist.

DEP could boot strap that with assertion of the public trust doctrine.

DEP could avoid the legal issues Trump EPA is facing in reversing policy by asserting that SC recognized DEP’s executive branch policy making role delegated by the Legislature in 2005. They could add that this policymaking power was democratically legitimized because the Gov. campaigned on stopping the bear hunt, thereby responding to an argument of abuse of unelected executive power and “executive branch legislating by rule-making”.

My question to you is: How did the SC decision get so incorrectly interpreted? The statements in DEP 2010 public notice and rulemaking summary amending the BBCMP were flat out false in summarizing that decision.

Why didn’t ENGO’s challenge DEP on this?

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This Changes Nothing – Timing Is Nothing

September 12th, 2018 No comments

NJ Environmental Groups Miss The Boat

Meanwhile, as a massive hurricane barrels toward the east coast …

Electric Bus Campaign Could Have Been Designed By PSEG & Big Oil & Gas

[Technical Update Below – 9/13/18)

NJ Spotlight reports today that environmental groups have created a political campaign focused on retrofitting NJ Transit’s bus fleet, see:

This “campaign” comes at a time when the focus should be on the fact that NJ Gov. Murphy must deliver on his repeated campaign pledges to make it a top priority to rapidly and aggressively respond to the climate crisis and convert NJ’s fossil and nuke based electric infrastructure to 100% renewable energy (solar, wind, geothermal, etc) by 2050.

To meet these goals, Murphy has issued Executive Orders that directed:

1) the Board of Public Utilities (BPU) to exercise regulatory powers to create a financing mechanism for 3,500 MW of off shore wind  and to adopt an Energy Master Plan (EMP) to lay out a detailed path to 100% renewables. BPU is now holding public “Stakeholder” meetings to solicit public comments on necessary revisions to the Christie EMP.

2) the BPU and the Department of Environmental Protection (DEP) to renegotiate the prior agreement and rejoin the northeast States Regional Greenhouse Gas Initiative (RGGI). A draft RGGI regulation is expected to be proposed for public comment this fall.

Additionally, the Murphy administration is subject to legislation:

3) the voluntary greenhouse gas emission reduction goals of the 2007 Global Warming Response Act (80% below 2006 emissions by 2050);

4) the legal mandates of a 2004 law to develop zero emission (electric) cars and – implicitly – the necessary infrastructure to recharge them. There are no concrete plans in place to demonstrate compliance with either law; and

5) recently enacted legislation requires 21 percent of the energy sold in the state be from Class I renewable energy sources by 2020; 35 percent by 2025 and 50 percent by 2030, including 3,500 MW of offshore wind by 2030. Utilities are required to reduce electricity usage by 2 percent and natural gas by 0.75 percent, and install 600 MW of energy storage by 2021 and 2,000 MW by 2030.

(I highlighted energy sold in the state because millions of NJ ratepayer dollars are being shipped out of state to purchase so called “renewable energy credits” from energy generated in other states (e.g. Illinois wind and dirty Maryland garbage incinerators) and are doing nothing to promote NJ based clean energy, jobs or economic development. More to come on this “RPS” sham in a future post.]

Actual implementation of these programs will cost billions of dollars and they will be extremely complex to design and implement (even without political attack by corporate power and special interests (e.g. the PSEG union got a no layoff deal in the nuke bailout).

The aggressive timetables, complexity and powerful corporate and political resistance that will challenge the BPU – in light of BPU’s historical track record in failing to meet legal deadlines – do not inspire confidence that the timetables or goals will be met.

Additionally, there are external legal and technical constraints imposed by NJ’s 1999 Electric Deregulation and Energy Competition Act (“EDECA”), the PJM regional grid operator, the other RGGI states, NJ’s RGGI statute, and the Federal Energy Regulatory Commission.

NJ laws also erect restrictions on municipal and cooperative owned power systems and limits the size renewable energy systems and economic incentives known as “net metering”:

System size of renewable energy facility is limited to that needed to meet annual on-site electric demand. A.B. 3723 enacted in May 2018  authorizes Board of Public Utilities (BPU) to limit net metering to 5.1% of the total annual kWh sold in the State by each electric power supplier during prior one year period. The legislation instead of providing a firm aggregate limit on net metering, it authorizes the BPU to cease offering net metering if this capacity is reached.  BPU may continue to allow net metering even if this threshold is reached.

The limit on size to annual demand blocks expansion of renewables, restricts competition and protects the corporate utilities – as does net metering limit of just 5.1%.

Finally, there are major loopholes in DEP regulations with respect to climate change (both emissions reductions and adaptation) and DEP’s GWRA implementation recommendations have been completely ignored, see:

So, it is almost a certainty that  none of this will be accomplished – absent huge public demands that are organized by informed analysis and mobilized in support of aggressive government policy response.

So, how has NJ’s environmental and climate community responded to these challenges?

NJ Spotlight reports today that they have created a political campaign focused on retrofitting NJ Transit’s bus fleet, see:

Of course, the NJ energy sector and corporate NJ are breathing sighs of relief as environmentalists divert public attention from anything that could change the corporate status quo or cost them a thin dime.

Electric bus fleet replacement cost would be at least $660 million, and all of it from PUBLIC money, not one corporate dollar. *** There were no estimates provided of actual GHG emissions reductions associated with this public expenditure. (*** See Technical Update below)

(To illustrate the cowardly Neoliberal politics that are operating here, consider:  instead of a small bore public transit bus focus, why not a campaign to mandate that Amazon, Fed Ex, and UPS electrify their fleets and install solar on millions of square feet of warehouse rooftops?)

For context, that $660 million is about 12 years of all the new RGGI funds and almost 3 years of all annual Societal Benefit Charge (SBS) funds.

This latest “green” “campaign” ignores all of the above challenges and retains the typical silo single issue focus, incoherent, and “safe” politics that Naomi Klein criticized the environmental community for in her recent book “This Changes Everything: Capitalism Vs. The Climate”: (review)

The immediate threat to the earth “changes everything” in the sense that just adding “the environment” to our list of concerns is not good enough.

The sheer scale of the problem necessitates a politics that can take on capitalism. We must do away with any notions, Klein asserts, that the environmental crisis can be contained and eventually rolled back through policy tinkering (though addressing symptoms is necessary); technical fixes (though sensible technological advances should be vigorously pursued); or market-based solutions (no qualification necessary — it’s silly to expect the market to solve problems it was instrumental in creating). Something far more comprehensive is required.

To emphasize this, however, is not just to expose the painfully inadequate solutions of the Right, but also to ask the hard questions of the environmental movement. As important as the movement has been to placing the issue on the agenda and bringing young people in particular into the struggle, its organizational forms simply do not match what we are up against. After decades of engagement, the environmental movement remains relatively marginal, capable of slowing down this or that trend but not of reversing and correcting capitalism’s reckless trajectory.

Klein is especially critical of those sections of the movement that jumped on the “green capitalism” bandwagon in the 1970s.

FOSSIL PHASEOUT AND MORATORIUM IGNORED

Meanwhile, as a massive hurricane barrels toward the east coast, out west, California Gov. Jerry Brown just signed a law imposing a phase out of fossil fuels by 2045 (yes, I understand that the phase out is not mandatory and has no enforcement teeth. But NJ groups are not even asking for a voluntary aspirational phase out goal.)

Similarly, NJ grassroots climate activists are demanding that Murphy’s BPU Energy Master Plan phase out fossil fuels and impose a moratorium on new fossil infrastructure.

Others – including myself – advocate that NJ activists embrace the Trade Unions For Energy Democracy. (be sure to read their Working Papers).

Why no environmental group campaign on any of these aggressive policies?

Others, like the “green capitalism” groups Klein criticizes,  are calling for a “carbon tax” – e.g. the State of Washington (where I am writing this post from) has a fall ballot initiative to impose a $15 per ton carbon tax.

By comparison, RGGI credits are selling for about $2 per ton (correction – most recent auction was $4.50)  and NJ’s RGGI law has an “exit ramp” that would trigger legislative review if the price of a RGGI credit exceeded $7 per ton. RGGI will not make a dent in reducing NJ’s current GHG emissions.

By comparison, economists – and even the EPA – estimate that the real “Social Costs of Carbon are over $100 per ton (depending on assumptions, including interest rates). Regardless, Trump repealed these EPA SCC estimates and barred federal agencies from using them.

At least 3 major new fossil powered gas power plants – almost 2,000 MW – and major fossil pipelines currently are under review by the Murphy DEP and BPU.

NJ’s electric grid requires massive new multi-billion dollar investments to be able to handle renewable energy.

NJ’s rechargeable vehicle infrastructure is woefully inadequate and NJ’s pubic transportation infrastructure is crumbling.

There is no attention on housing and the greenhouse gas emissions of other sectors.

Meanwhile, as a climate warming driven massive hurricane barrels toward the east coast, NJ, a highly vulnerable coastal state wiped out by Superstorm Sandy, still has no climate adaptation plan. That storm represents another opportunity to build public awareness and pressure Gov.Murphy to respond, but instead the environmental groups blow the moment and launch a electric bus campaign. Timing is nothing, eh?

None of these issues are getting adequate governmental, media or environmental group attention and resources.

What the fuck are they all doing with an electric bus campaign?

[End Note: I understand that environmentalists also justify this campaign on environmental justice and urban air quality grounds. Don’t be fooled. In a forthcoming post, I will expose the sham of Gov. Murphy’s Executive Order 23 on environmental justice and explain how it limits State agencies – especially DEP – to toothless “guidance”, not regulation.]

[Technical Update  9/13/18 – I tracked down the Environment NJ national Report supporting this campaign. According to that report:

  • Replacing all of the diesel-powered transit buses with electric buses in the United States could save more than 2 million tons of greenhouse gas emissions each year.

For context, according to the most recent 2018 US EPA Greenhouse Gas Emissions Inventory:

In 2016, total gross U.S. greenhouse gas emissions were 6,511.3 million metric tons (MMT) of CO2 Eq.11

Do the math – at the national level, 100% fleet replacement of electric buses would reduce national GHG emissions by just 0.03% (and cost unknown billions of dollars): (2 MT/6,511.3 MT) x 100 = 0.030%

According to the most recent NJ DEP GHG emissions inventory, NJ emits about 110 million tons (MT) of GHG per year (2015). Although the transportation sector is the largest emissions sector (almost 50 MT), the driver for those emissions is increases in vehicle miles travelled, which would dwarf any reductions associated with electric bus retrofit:

As illustrated in Figure 2, the category with greatest contribution to GHG emissions in New Jersey since 1990 has been in the on-road transportation sector. This is most likely due to an increase in vehicle miles traveled in NJ despite a minor increase in the fuel efficiency of the overall U.S. motor vehicle fleet.

In NJ,According to the NJ Spotlight article, there are 2,200 NJ Transit buses. According to national bus registration data, NJ has over 25,000 buses. So the campaign targets just 8% of buses. Worse, NJ represents less than 5% of national buses. So, the total emissions reductions of electric buses as a percentage of national emissions are almost invisible: (0.03%/20)= 0.0015%.

Worse – and I won’t go into details here that would further embarrass and discredit my former colleagues – there is evidence that suggests that the “campaign” is motivated by organizational economic self interest and promotion of business interests that contribute financially to environmental groups. Readers interested in the basis for these claims should just Google. You’ll find stuff like this:

The Report was released AT THE corporate manufacturing facility in California. The press release named the company. It was part of the political buildup for the Gov. Brown Climate Summit in San Francisco. Here’s the advertisement – corporate promotion – press release:

“Burlingame, CA – Jersey Renews partners, including Environment New Jersey, GreenFaith and Jobs Move America, joined Environment America and Proterra, a cutting-edge electric bus manufacturer in Silicon Valley, in hosting delegations from ten states around the nation for a tour of Proterra’s bus factory, and a discussion on the state of the industry and hastening the transition to zero carbon transportation.

Makes Sierra Club small business boutique promotion in Boston look like chump change.

This s really bad.

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Is Murphy DEP Commissioner Catherine McCabe On The Way Out The Door?

September 9th, 2018 No comments

Friday Night Massacre At DEP? – “there is a lot of weird here”

Gov.s’ Office Installs Interim Commissioner Over DEP Deputy Deb Mans

Gov. Murphy Further Politicized a DEP Already Deeply In Disarray

[Update below]

According to a press report, Gov. Murphy has made a highly unusual Saturday announcement – via twitter – that DEP Commissioner McCabe is traveling out of State for the month of September and will be replaced by a Gov. Office staffer, not DEP Deputy Commissioner Debbie Mans. Follow.

From the beginning, we have been highly critical of NJ Gov. Murphy’s choice for DEP Commissioner, Catherine McCabe, and written many posts on her ineffective leadership of DEP, particularly on addressing climate change (most recently, see:

McCabe – who was not confirmed by the Senate until late June and has allowed Senate President Sweeney and Assemblyman McKeon to install their former staffers and political operatives in DEP policy positions – has charted a course of “continuity with many controversial Christie DEP policies.

She has blind sided and embarrassed the Governor in the press, lacked any media message or policy agenda, and been an ineffective leader of DEP and proven incapable of reforming the status quo (see:

McCabe has been humiliated and cut out of the policy loop on climate change, allowing DEP leadership to be usurped by BPU and the Energy Master Plan. Similarly, McCabe was cut out of Natural Resource Damage policy by the Attorney General. Former political operatives in the Legislature that were installed as Chief of Staff and Director of Government Relations appear to be working behind her back with Democrats in the legislature, again, undermining DEP leadership and credibility by politicizing decisions.

Similarly, we have pointed out that McCabe’s selection of  so called “environmental leader” Debbie Mans as Deputy Commissioner was a purely symbolic gesture and cynical political appointment. Mans is no leader and lacks qualifications for the job, see:

We’ve predicted that McCabe would suffer a very short tenure, much like Gov. Florio’s initial pick for DEP Commissioner, Judy Yaskin, who served for several months before being replaced by Scott Weiner. We wrote:

While Acting Commissioner McCabe seems to be hiding under her desk in Trenton – is she trying to avoid Judy Yaskin’s fate? – Gov. Murphy has not rescinded Gov. Christie’s anti-regulatory and privatization Executive Orders (#1-#4; #17), but instead has shown a disturbing continuity with some of the worst Christie environmental policies, including: (read entire post for list)

But, while McCabe is floundering and failing to lead, at least Judy Yaskin was forced out because she took strong pro-environmental positions, as we noted:

I could be wrong – perhaps McCabe has done her homework and just doesn’t want to step out of the corporate Democrat line and become another deposed DEP Commissioner like her only female predecessor, Judy Yaskin, see: this old NJ Spotlight story:

“In the case of the Salem nuclear power plants, the controversy stretches back nearly three decades to the days of former Gov. Jim Florio’s administration. Then-Department of Environmental Protection Commissioner Judith Yaskin ordered cooling towers to installed at Salem — at a cost at that time estimated to be $2 billion –– citing a study that found the plant killed more fish each year than commercial fishermen harvested from Delaware Bay. …

Scott Weiner, who succeeded Yaskin as DEP commissioner, reversed the Salem cooling-tower decision. Instead, PSEG agreed to undertake a massive restoration program of more than 20,000 acres of tidal wetlands along the shores of the Delaware Bay. After he left state government, Weiner worked briefly as a consultant to PSEG.

So, we were not surprised that Bergen Record environmental reporter Scott Fallon, who seems to have broken a very interesting story that suggests McCabe’s imminent demise, tweeted this:

Saturday morning press release from @GovMurphy: DEP Commish will be traveling out of state “for the month of September”. No other details given. Kathleen Frangione from Govs (sic) office will be acting commish, (sic) not DEP no. 2 Debbie Mans.

There is a lot of weird here.

(I can’t provide the original tweet because Fallon has blocked me for criticizing his reporting).

Curiously, I went to @GovMurphy twitter feed and could not find the Saturday morning tweet Fallon refers to, so I assume that its been taken down. That only thickens the plot.

So I agree with Fallon that “there is a lot of weird here”.

My sense is that McCabe is “traveling” and will make a graceful exit by resigning when she returns for “family” or “personal” reasons.

The installation of Chief Policy Advisor Kathleen Frangione from the Gov.’s Office as interim DEP Commissioner instead of Deputy Commissioner Debbie Mans is not only a vote of no confidence in an a humiliating blow to Mans, it also validates what we’ve long said: that Mans was not qualified, not a leader, and always just a symbolic and totally cynical political appointment.

And it further politicized a DEP that is already deeply in disarray – although Frangione is said to be a climate policy expert. (but as a DC beltway lobbyist and Congressional staffer, not an expert or advocate)

[OMG, I just watched that Princeton talk. Frangione spoke more like a press agent than a policy expert. Jeanne Fox hovered over her to make sure she said nothing about policy decisions or political controversies. Frangione’s presentation was absent substantive content and data, it misrepresented current law (e.g. re: authorized uses of RGGI funds, the non-binding effect of Executive Orders, and with mis-statements about “DEP regulations”, etc) and loaded with slogans. If that’s what passes as a policy expert from Harvard and Yale, we’re doomed.]

We’ll keep you posted as we learn more.

In the meantime, DEP folks or anyone with valid information about all this can shoot me an email at:  bill_wolfe@comcast.net

[Update: A knowledgeable reader sent me the following note, suggesting that I exaggerate:

She has vacation house in Ocean City near some friends. 

He said going to Australia for month to visit for birth of granddaughter

So, if McCabe is going to Australia for a month, that could shine a light on Murphy’s lack of paid family leave policy.

It must be nice to just take off for a month. But can all NJ workers take a paid month for the birth of a child? Can they afford to do that? Is Murphy helping?

Similarly, is McCabe being paid during her travels? Does taking a month of from a leadership position damage her management credibility and commitment to DEP?

Is even raising these kinds of questions somehow taboo in the new #metoo world of women’s issues?

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