WolfeNotes.com

Flawed Climate Bill To Be Heard On Monday

Bill Supports Industry Legal Argument That DEP Lacks Authority To Regulate GHG

Bill Lets DEP Off The Hook For Failure To Regulate GHG Emissions Under Current Law

Senate Hearing Opportunity to Send Message to Trenton to Get Real On Climate Catastrophe

[Update: 5/2/22 – I need to clarify the update below regarding DEP’s authority to regulate greenhouse gas emissions, in light of what may appear to be a contradictory analysis of Senator Smith’s current bill, S1602, to put teeth in the Global Warming Response Act.

DEP does have authority to regulate GHG emissions from a small universe of major emission sources under the 1954 NJ Air Pollution Control Act (APCA). That authority includes setting emission fees.

But that APCA authority is limited to issuing permits based on technology, not on the GHG emission reduction goals and timetables of the Global Warming Response Act. DEP also has APCA authority to base emission limits on ambient air quality standards, but there are no ambient air quality standards for greenhouse gases.

That APCA authority is also limited to a very small universe of major GHG emissions sources (less than 20% of all emissions).

The DEP does not have authority under the Global Warming Response Act (GWRA) to regulate GHG emissions to achieve the emission reduction goals of that Act.

That’s why Smith’s bill is important – i.e. to link DEP’s air permit authority under the APCA to the goals of the GWRA. But the Smith bill would need to be amended to apply to all emission sources and to include enforceable timetables, fossil phase outs, lifecycle emissions, etc. ~~~ end update]

Important Updates below]

Yesterday, I wrote to explain fatal flaws in NJ Senate Environment Committee Chairman Bob Smith’s proposed bill (S3207) to implement the greenhouse gas emission reduction goals of the 2007 Global Warming Response Act.

Today, I wrote Senator Smith the letter below (with copies to Committee members Senators Greenstein (D) and Bateman (R)) to convey my concerns, and outline the kind of major amendments required to put teeth in the bill (I intentionally left out a fossil moratorium, as Gov. Murphy should initiate that policy via Executive Order).

Reliance on Gov. Murphy’s energy policy – i.e. re-entry into RGGI, off shore wind and solar -alone won’t work.

First, the NJ RGGI law and RGGI program covers less than 20% of total GHG emissions and the current paltry $3/ton emission allowance fee has no effect on emissions and won’t generate nearly enough revenues to finance investments to transition to 100% renewables.

Second, GHG emissions from existing and pending proposed gas power plants and pipelines would wipe out any emissions reductions from renewable energy (3,500 MW of off shore wind and modest expansion of solar).

The Smith bill will be heard on Monday December 3, 2018 in Trenton, at 10 am in the State House Annex, Room 6, first floor. I strongly urge folks to contact Smith and Committee members to ask for these kind of amendments and, if possible, show up and testify at the Committee hearing. Please feel free to use my analysis and recommendations.

Dear Chairman Smith –

Please accept the following as testimony and a request for amendments to S3207, your proposed legislation to implement the 2007 Global Warming Response Act (GWRA).

While I would support new legislation to accelerate reductions of greenhouse gas emissions (GHG) to meet the goals of the GWRA and avoid climate catastrophe, unfortunately I can not support the bill as drafted due to fatal flaws that repeat many of the same flaws of the original GWRA and for failure to include enforceable statutory and regulatory standards, timetables, and resources necessary to actually achieve those goals.

To remedy those flaws, the following kind of amendments are necessary (as discussed in greater detail with links to supporting data and regulatory documents in this essay:

More Fake Solutions On Climate Change

http://www.wolfenotes.com/2018/11/more-fake-solutions-on-climate-change/

1. Authorize and mandate that DEP regulate major GHG emission sources, in consideration of lifecycle and cumulative emissions and attainment of an annual statewide GHG emissions reduction standard. Authorize DEP to deny permits on the basis of GHG emissions. There are many ways to do this that I’d be willing to discuss with you in greater detail.

2. Repeal the regulatory exemptions in DEP’s 2005 regulation that defined greenhouse gases, including methane, as air pollutants pursuant to NJ Air Pollution Control Act. In case you were not aware of those exemptions, here’s a list (this is DEP’s language from the 2005 regulatory response to comments – adoption document @ p. 53):

https://www.nj.gov/dep/rules/adoptions/2005_1121njac7_27.pdf

• A requirement to include in a permit application information about CO2 emissions
•  A requirement to obtain a permit under N.J.A.C. 7:27-8 or 7:27-22
•  A limitation on CO2 emissions in a permit
•  A requirement for a state-of-the-art analysis with respect to the control of CO2 emissions
• A fee
•  A facility being considered a “major facility”
•  An item of equipment or a source operation being considered a “significant source”
•  The applicability of any other requirement under 7:27, other than the requirements of 7:27-21 (which require facilities to which subchapter 21 applies to report CO2 emissions in their emission statements).

3. Subject major GHG emission sources to current DEP air pollution emissions fees, which are currently set at $122.45 per ton. Dedicate revenues from these fees to investments in demand reduction, energy efficiency, renewable energy, smart grids/micro grids, and a phase out of fossil fuels.

DEP’s most recent GHG emissions inventory estimates that in state GHG emissions exceed 100 million tons. Re-entry into RGGI would address less than 20 million tons, while RGGI allowances currently sell for about $3 per ton. However, if current DEP air pollution emission fees were applied only to RGGI sources, that would generate over $2 billion/year to invest in the transition to renewables.

4. Repeal BPU exemptions and subsidies to fossil fuel plants and infrastructure. For example, BPU unilaterally exempted the proposed re-powering of the BL England plant from RGGI and Societal Benefit Charges. I suspect that other power plants have received exemptions as well. Other examples are provided in the above essay and links.

5. mandate that BPU consider the Social Costs of Carbon (SCC) in BPU energy planning, policy, regulations, and energy industry oversight and review of economic filings.

The Obama EPA adopted a range of SCC costs, based on various assumptions, see:

https://19january2017snapshot.epa.gov/climatechange/social-cost-carbon_.html

The Obama administration incorporated SCC in regulatory policy, but on 3/28/17, President Trump issued an Executive Order that abandoned all that and prohibited implementation, see: Presidential Executive Order on Promoting Energy Independence and Economic Growth

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-promoting-energy-independence-economic-growth/

6. Establish an aggressive mandatory timetable for the phase out of in-state fossil infrastructure and purchase of out of state generated fossil power. California law includes a phase out by 2045, but that law is not mandatory, lacks enforceable standards, and the 2045 timetable is far too long. A 10-15 period is the maximum timeframe to reflect but available science and avoid climate catastrophe and limit warming to 1.5 degrees C per the Paris accords.

[Update: 7. Mandate that DEP establish carbon sequestration program, including a new urban forestry program, afforestation of abandoned agricultural or vacant lands, and restrictions on DEP logging of State lands under guise of “stewardship”.

Obviously, these are each major substantive amendments to your bill, so a Committee substitute bill may be required to incorporate them all.

I’d be glad to work with you and OLS staff to research and draft such a substitute.

I appreciate your timely and favorable consideration.

Bill Wolfe

[Update: I inadvertently may have created some confusion.

Legislation is not needed for DEP to regulate GHG emissions. As my posted noted yesterday and the letter to Smith repeats, back in 2005, DEP adopted regulations that defined greenhouse gas emissions as air pollutants. However, that rule EXEMPTED GHG from almost all DEP air pollution control regulatory requirements, including permits, emissions limits, and emission fees.

Accordingly, Gov. Murphy and DEP Commissioner McCabe should be held accountable for their failure to mandate that DEP adopt GHG emission standards to meet the goals of the Global Warming Response Act.

Additionally, Senator Smith’s bill lets DEP off the hook for this failure and runs a risk of supporting a legal argument that DEP lacks statutory authorization by the legislature to regulate GHG emissions. Industry made these arguments during the 2005 rule making and would obviously use Smith’s bill in any future litigation, should DEP decide you use their current authority.

Smith must either put real teeth in his bill or withdraw it. Given a low probability that a bill with teeth would ever pass, the best option is to withdraw Smith’s bill.~~~ end update]

New Legislation Designed To Divert From Fossil Moratorium & Phase Out

Once one understands how the elite charade is played, it’s like shooting fish in a barrel.

I’ve been writing a lot about the concept of “the elite charade” lately, and today another classic example just appeared.

A close look at the timing, the content, and the press coverage revealingly peels the mask off and exposes the latest – and most egregious – elite charade. Let me explain.

After ignoring the climate activist campaign to demand that Gov. Murphy impose a moratorium on fossil infrastructure – and just days after I wrote to criticize that neglect – today NJ Spotlight reports that Senate Environment Committee Chairman Smith introduced legislation to “implement” the failed 2007 Global Warming Response Act (GWRA):

• SMITH AIMS TO GET STATE ON FASTER TRACK TO REDUCING GREENHOUSE GAS EMISSIONS

(for readers interested in a forensic autopsy of the 2007 GWRA, see: A Decade After Passage of The NJ Global Warming Response Act: From “Toothless” to a “Dead Letter”)

The Smith bill (S3207) is a charade and proposes classic “fake solutions”. I put that term in quotes, as it is not mine.

A core feature of what author and former New York Times columnist Anand Giridharadas calls the “elite charade” is the concept of what he calls “fake solutions”. Fake solutions are the mechanism by which the elite charade operates.

Fake solutions share common features. They:

1) allow the advocates of them to feel virtuous that they are “changing the world” and garner good publicity;

2) are “win-win” solutions, meaning that they do not involve tradeoffs, impose any costs, or require sacrifice in terms of individual career, personal lifestyle, or income;

3) do not involve corporate taxes, government regulations, or income or wealth redistribution;

4) divert attention from and displace more effective real solutions, especially regulations and taxes;

5) marginalize and undermine the “radical” or “politically unrealistic” or “idealistic” individuals and groups that advocate real solutions; and

6) are “politically safe”, i.e. they lock in the status quo and pose no threat to powerful elites, corporations, or politicians.

Now lets apply the “fake solutions” framework to Chairman Smith’s bill and compare them to real solutions. I’ve already written about the fossil moratorium as a real solution, so will not repeat that today and instead focus on other real solutions.

I) Real Solutions: DEP Regulation of GHG Emissions

Just like the failed GWRA  – which I criticized at the outset – Smith’s bill limits the scope of DEP regulations to emissions monitoring and reporting and merely directs DEP to prepare a Report.

According to the bill’s statement:

This bill would establish new timeframes for the completion of the Legislature’s directives in the GWRA. Specifically, within 12  months after the date of enactment of the bill, the DEP would be required to adopt rules and regulations establishing a greenhouse gas emissions monitoring and reporting program. Additionally, within 18 months after the date of enactment, and biennially thereafter, the DEP would be required to prepare a report on the status of the greenhouse gas emissions monitoring and reporting program, the current level of greenhouse gas emissions in the State, and the progress made toward compliance with the goals established in the GWRA. Finally, within one year after the date of  enactment, the bill would require the DEP to prepare a report recommending additional measures necessary to reduce greenhouse gas emissions to achieve the 2050 goal.

That’s like filing a tax return to IRS that identifies your income, but pays no tax. Like having IRS submit a Report to Congress about total US income, but not authorizing IRS to levy and collect any taxes.

In other words, the bill is not serious.

Regarding actual GHG emissions, Smith’s bill merely requires DEP to develop a “strategy”.

According to the bill’s statement:

This bill would establish new timeframes for the implementation of certain requirements in the “Global Warming Response Act” (GWRA), and require the Department of Environmental Protection (DEP) to adopt a strategy to reduce short-lived climate pollutants.

II) Real Solutions: DEP Air Pollution Fees

DEP mandates air pollution emissions fees  – DEP just issued a notice to updated them:

In accordance with N.J.A.C. 7:27-22.31(j), the Department has published a notice of the annual percentage increase in the Consumer Price Index (CPI) relative to the 1989 CPI and the resultant per-ton emission fee for FY 2019 in the November 19, 2018 New Jersey Register. …

The annual emission fee, paid by each major facility subject to N.J.A.C. 7:27-22, is calculated each year according to N.J.A.C. 7:27-22.31(b), which applies the CPI percentage increase to a base amount per ton of emissions. For FY 2019, the Department calculated the CPI percentage increase as 2.42 percent, resulting in an annual emission fee of $122.45 per ton of regulated emissions.

A facility subject to this fee must multiply $122.45 times the quantity of regulated air contaminant emissions (VOC, NOx, CO, SO2, highest TPY of TSP, PM10, or PM 2.5) emitted in tons during calendar year 2017 (January 1 through December 31, 2017). The result is the fee the facility must submit to the Department by January 31, 2019. Invoices are being mailed to major facilities based on emissions reported in the Emission Statement submitted for calendar year 2017.

But DEP exempted greenhouse gas emissions from those fees! (see above list of exemptions).

Compare the DEP’s $122.45/ton air pollution emission fee to the current paltry Regional Greenhouse Gas Initiative (RGGI) emission fee, which is in the ballpark of just $3 per ton.

Gov. Murphy has embraced RGGI – which, as I’ve written many times, is a fake and ineffective solution (most recently, see The RGGI Blues)

If Gov. Murphy were serious, he would impose current DEP air pollution fees to GHG emissions. But no “green group” is calling for that and no NJ Spotlight stories have ever reported on current DEP emissions fees or questioned why DEP exempted GHG from them.

According to the most recent DEP greenhouse gas emissions inventory, statewide GHG emissions exceed 100 million tons:

According to the latest greenhouse gas emissions estimate (2015), Statewide releases were a little over 100 MMT CO₂e

Do the math: (100 million tons of GHG emissions) X ($122.45/ton) = $12,245,000,000

That’s $12.245 BILLION if all GHG emissions were subject to DEP’s current air pollution emissions fees.

Of course, I am not suggesting that DEP should or could regulate ALL GHG emissions sources that contribute to NJ’s 100 million tons of emissions. But DEP doesn’t currently regulate or impose fees on any GHG emissions sources.

If just the RGGI regulated emissions – which are about 20 million tons/year – were subject to the current DEP air pollution emissions fees ($122.45/ton), that would represent over $2 BILLION per year in revenue that could be reinvested in the transition to 100% renewable energy, construction of a smart grid for distributed local energy, and a phase out of fossil.

So there’s a lot of room between 100 million tons and zero for a real solution: a realistic GHG emissions fee program that is more robust that RGGI $3/ton.

III)  Real Solutions – Eliminate BPU Exemptions and Subsidies

It’s not just DEP that has exempted GHG emissions from regulatory and pollution fees.

As I wrote (See: Time to Pull the Plug On BL England), in an April 29, 2013 Order, the BPU quietly granted huge tax breaks and subsidies to the Rockland Capital BL England Plant:

The BPU granted the plant an exemption from RGGI fees and SBC charges.

This BPU BL England Order also provided secrecy to cover up the amount of huge ratepayer subsidies to Rockland Capital.

In addition, the BPU has ignored the Social Costs of Carbon in their economic review of energy projects. Instead, Gov. Murphy signed legislation that allowed PSEG and the nuclear industry to hijack the concept of SCC. The law turns the concept of SCC on its head.

Instead of polluters paying the public to offset the SCC of their emissions, e.g putting a price on carbon, the Murphy law requires that the ratepayers pay to subsidize nuclear power via “zero emissions credits”. Orwellian. Absurd.

How many other gas plants have been exempted from RGGI and provided other subsidies? Ask Senator Smith. Or NJ Spotlight.

The Smith bill requires that DEP act in concert with BPU. That’s another misleading effort, because there is no policy or legislative standards or requirements that BPU or DEP must comply with – while at the same time ignoring major flaws and loopholes in current BPU and DEP policy.

Real climate solutions will require that many BPU loopholes and subsidies be eliminated.

The Smith bill doesn’t do that, but instead creates the false appearance on integrating BPU energy and DEP regulatory policy.

IV) Real Solutions: California Dreaming – Phase Out of Fossil

Finally,I closed my most recent moratorium post with this challenge to emulate California’s fossil phase out:

[End Note: in addition to a Moratorium, the campaign should include a demand for a timetable for phasing out existing fossil power, similar to California Gov. Brown’s policy.]

So, I find it no coincidence that both the bill and the NJ Spotlight story misleading allude to greenhouse gas and climate policies in California. (bill statement):

The requirement to adopt a comprehensive strategy under this bill is based on legislation adopted and implemented in California.

It’s almost comical how Spotlight was so eager to get the California comparison into the story that they got it wrong.

I referred to California with respect to the fossil phase out. But the bill refers to California with respect to the DEP “comprehensive strategy”.

But Spotlight make the California connection to methane:

The legislation to deal with short-lived pollutants like methane is modeled after a bill adopted and implemented in California.

I find that mistake revealing. Classic fake solutions that divert from real solutions in California: the phase out of fossil power.

V) Apply The Fake Solutions Framework

So, let’s look at the content of Senator Smith’s bill, the timing of its release, and the NJ Spotlight coverage, in light of the elements of the “fake solutions” framework:

1) allow the advocates of them to feel virtuous that they are “changing the world” and garner good publicity;

Check – Senator Smith got good press. NJ Spotlight creates the impression among its readers that they are doing real journalism. Doug O’Malley at Environment NJ can report back to his Foundation funders that he got the quote on a major climate bill. Foundations just love those kind of ‘metrics”.

2) are “win-win” solutions, meaning that they do not involve tradeoffs, impose any costs, or require sacrifice in terms of individual career, personal lifestyle, or income;

Check – The Smith bill involves no tradeoffs, imposes no costs, and requires no sacrifice

3) do not involve corporate taxes, government regulations, or income or wealth redistribution;

Check – the Smith bill imposes no new taxes or air pollution fees, does not authorize new regulations of close loopholes in exiting regulations, and has no impact on inequality.

4) divert attention from and displace more effective real solutions, especially regulations and taxes;

Check – the Smith bill diverts media ad public attention from the moratorium campaign, from the California phase out, and from major flaws and massive loopholes in current laws and DEP regulations.

5) marginalize and undermine the “radical” or “politically unrealistic” or “idealistic” individuals and groups that advocate real solutions; and

Check – the Smith bill marginalizes the radical idealistic folks in the moratorium campaign and diverts from my critique.

6) are “politically safe”, i.e. they lock in the status quo and pose no threat to powerful elites, corporations, or politicians.

Check – NJ’s energy, pipeline, petro-chemical and transportation and housing industry lobbyists are happy and not opposing the bill. 

Once one understands how the elite charade is played, it’s like shooting fish in a barrel.

Pending Fossil Power Plants & Pipelines Would Wipe Out Any Benefits of Wind & Solar

Statehouse Fast For Moratorium Exposes Elite Charade On Climate Advocacy

[Update – 12/6/18 – State campaign kicked off  by 50 more groups – Greens Press NJ Gov. Murphy For Fossil Moratorium ~~ end update]

[Update below]

Some good news:

A handful of NJ climate activists have finally kicked off a statewide campaign that targets all the pending fossil power plants, pipelines and related fossil infrastructure and demands that Gov. Murphy use his power to declare a moratorium on State agency approvals.

The campaign is called #climatefastnj and was rolled out with a pre-Thanksgiving 2 week fast at the Statehouse.

The campaign is the first effort that I am aware of that lists all the pending fossil power plants and pipelines (see “The Problem“), puts climate chaos front and center, calls for a statewide solution (moratorium) and politically targets the Gov.’s Executive powers.

Importantly, the campaign also notes – but fails to quantify – the fact that if the Murphy DEP approves all the pending fossil infrastructure projects, that would wipe out any climate benefits of Gov. Murphy’s highly touted energy and climate policy: 3,500 MW of off shore wind, expansion of solar, and rejoining the Regional Greenhouse Gas Initiative (RGGI).

Accordingly, the Campaign is a serious challenge to Gov. Murphy’s leadership, climate rhetoric, and policy & program commitments (see also this).

BRAVO!

Thankfully, departing from the NJ media’s virtual blackout of NY Gov. Cuomo’s actions to kill proposed pipelines, there was some press coverage, but it tended to focus on the tactic (the fast) and lacked focus on the strategy: i.e. the campaign’s policy demand and strong climate justification for a moratorium. NJTV news covered it, while the Star Ledger (NJ.com) ran two brief stories that focused on the fast tactic, while downplaying the climate and fossil infrastructure policy issues (initially at the kickoff and followed up at the conclusion).

[Where’s NJ Spotlight? see Update below]

Now some very bad news: the campaign did not garner the support of NJ’s largest mainstream “green” groups that are purportedly working on climate change and opposing individual fossil pipelines and power plants, including Rethink NJ; NJ Conservation Foundation, Pinelands Preservation Alliance; NJ League of Conservation Voters; Environment NJ; Clean Water Action; ALS, COA, Sustainable NJ, NJ Future, Surfrider, and Sierra Club.

How could they not support the commitment and personal sacrifice to fast for 2 weeks?

How could they fail to pressure Gov. Murphy for a comprehensive Statewide policy solution to their individual pet projects and government and Foundation funded projects?

So much for solidarity.

Those groups pretend to be climate advocates, but they hide under their desks and give Gov. Murphy a pass. That’s because they put their own selfish organizational pet projects, priorities, and financial interests ahead of the public interest and real solutions to climate chaos – solutions that are feasible, realistic, and match the scale, scope, timing, and magnitude of the climate crisis.

Shame on them.

The moratorium campaign is long overdue.

As I wrote, it should have been organized before the 2017 Gubernatorial campaign, see:  Developing A Strategy To Move A Climate And Green Jobs Agenda (September 2016).

In that post, I urged a moratorium on new fossil infrastructure and a phase out of existing fossil, based on a four point strategy:

1. Form A United Front; 

2. Focus on Climate and Green Energy Jobs; 

3. Target Gubernatorial Candidates and Do It Now!; 

4. Ramp Up Tactics – Direct Action, Non-Violent Civil Disobedience

I hate to say I told you so, but I closed that post with this warning:

– the odds of this happening approach zero. The current groups, to be kind, do not work well together and the corporate foundations would never fund the work. So, the thought of even a coordinated campaign, never mind a United Front, is unthinkable right now.

The only way this dysfunction changes is either for the members of these groups or their funders to demand that their professional staff change, or for an alternative bottom up new grassroots organization emerge and bypass the dysfunction.

Way back in 2015, I explained why a moratorium was justified by the climate emergency and how a moratorium could be implemented via a Gov.’s leadership, see: Florio Administration’s Policy on Energy and Environment Still Relevant Today – Climate Emergency Justifies Fossil Moratorium

[NOTE: Curiously, former Gov. Florio is identified on the Rethink NJ website as a “supporter” of their campaign and given a quote. Rethink NJ failed to support the moratorium campaign. That would seem to invite questions from media about Florio’s leadership in integrating energy and environment policy and issuing the Executive Order #8 moratorium on garbage incineration as a model for phasing out fossil infrastructure. Remarkably, Florio has never been asked to respond to that kind of tough question.]

 More recently, in July 2018, I again called the “green” elites out for failure to pressure Murphy on climate. I again highlighted former Gov. Florio’s Executive Order #8 moratorium that blocked new garbage incinerators as a model for Gov. Murphy:

Gov. Murphy could issue a similar Executive Order establishing an Emergency Climate Change and Energy Task Force tied to the BPU Energy Master Plan revision process and the DEP Climate mitigation and adaptation planning & regulatory process (including RGGI).

The Order could impose a moratorium on any DEP and BPU approvals of any fossil  energy infrastructure approvals, such as the Pinelands, PennEast and Williams pipeline and the recently proposed new gas plant in the Highlands.

Problem solved.

So why aren’t NJ’s environmental groups advocating this aggressive approach?

As I outlined, NJ has a rich history of Governors using their Executive powers to declare moratoria. Current Gov. Murphy should be held to that leadership standard and called out to walk the walk on his climate rhetoric.

I reminded folks that Gov. Christie issued a Moratorium via Executive Order #1 in the first hour of his first day in Office and that Gov. Murphy has yet to repeal that action, which specifically set back NJ DEP’s climate programs:

In contrast to Murphy’s inaction, Gov. Christie hit the ground running and in his first day in office, issued a slew of executive orders to declare a regulatory moratorium (EO#1) and to provide “regulatory relief” (EO#2) and slash red tape (EO#3) and defer to local government (EO#4).

The moratorium killed, among others, the Corzine Administration’s proposed new rules on monitoring and reporting of greenhouse gas emissions.

I urge readers and my friends that are members of NJ’s largest green groups to pressure their Boards and professional staff to support the #climatefastnj moratorium campaign.

[End Note: in addition to a Moratorium, the campaign should include a demand for a timetable for phasing out existing fossil power, similar to California Gov. Brown’s policy.]

[Update: NJ Spotlight is the State’s leading media outlet for reporting on climate and energy issues. Accordingly, one would assume that Spotlight would have reported on a 2 week Trenton Statehouse fast and campaign targeting the Governor to demand a moratorium on fossil infrastructure.

One would be wrong.

That Spotlight failure to cover certain issues is consistent with a disturbing pattern I’ve recently written about, whereby elite Foundations fund media in a way that shapes news coverage, while at the same time funding environmental groups to influence the issues, strategies and tactics those groups pursue (work that is then reported by Spotlight as “news”).

Specifically, the Wm. Penn and Dodge Foundations are major funders of NJ Spotlight.

Those Foundations also fund almost all of the NJ environmental groups that failed to support the  #climatefastnj campaign. As I wrote, alluding to Penn and Dodge:

the corporate foundations would never fund the [moratorium campaign] work.

This is not a coincidence, but another glaring example of what author and former New York Times columnist Anand Giridharadas calls the Elite Charade.

NJ’s environmental politics are controlled and driven by an anti-democratic and corporate elite charade. ~~~ end update]

We headed south out of Port Townsend, Washington back on September 18, in search of warmer climes as the fall chill set in the northern Puget Sound. (We departed last year on August 6, 2017).

We haven’t posted many photos since then, so thought we’d celebrate Thanksgiving with this thankful post that we made it through northern California and the Sierra Nevada’s just weeks before the Paradise disaster.

Here’s the thumbnail travelog, written from Cannery Row, in a touristy and no longer Steinbeck funky Monterey (thankfully, the Peninsula is still gorgeous):

We toured the western shore of Puget Sound, down to Seattle, but bypassed the city and instead headed to central Oregon and the Cascades and Columbia River. We entered California along the Klamath River, and as these photos show, the conditions were extremely dry. At Happy Camp, we then proceeded west to the Redwoods and northern coast. We spent about a week on the coast around Crescent City, then the cold fog set in and we headed inland across the Sierra’s, then south along the eastern Sierra foothills to lovely Lake Tahoe and south to Twin Lakes. We managed to catch a powerful lecture on Native American history of Yosemite and Hetch Hetchy at the Bridgeport public library. Then we headed west over awesome Sonora Pass to San Francisco to visit my son (my brakes almost caught fire headed down from the Pass). Highlights included visits to City Lights bookstore and Coit Tower, whose murals show San Fran before the Digital Disaster the city has become.

 

Court Rejects Blatant Political Intervention by Trump US FWS

The NJ Appellate Division on Friday Nov. 16, 2018 issued a decision in the latest round of litigation on the black bear hunt (read the opinion here: NEW JERSEY OUTDOOR ALLIANCE v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)

I’ve written about that recently, basically arguing that Governor Murphy and DEP Commissioner McCabe are misleading the public by obfuscating and failing to use their regulatory powers that were upheld by the NJ Supreme Court, see: NJ Gov. Murphy Just Effectively Privatized The Black Bear Population

In Friday’s decision, the Appellate Court rejected the hunters’ attempt to bock closure of State lands and upheld DEP’s reliance on “proprietary” powers as landowner to block the bear hunt on state lands.

But the Court agreed in part with the hunters’ “arbitrary & capricious” claims and remanded the case to the Office of Administrative Law (OAL) for a hearing to establish a factual and scientific record.

A few quick thoughts on that.

1. Court rejects over-reach by Trump USFWS

In reading the opinion, I was surprised to learn that the Trump administration’s US Fish and Wildlife Service (USFWS) had intervened aggressively behind the scenes in behalf of the hunters. The hunters then used this intervention in their legal challenge.

In a threat to withhold federal funds – a rarely used and very hostile bureaucratic move – the USFWS directed the DFW to review federal grant documents in order to ensure that federal grant moneys for wildlife restoration were not being diverted. This is the first step in the process under federal regulations to withhold federal funds.

The USFWS sent a letter to the NJ DFW, a transparent end run around DEP Commissioner McCabe.

Worse, it appears that USFWS mistakenly believes that NJ DFW is exclusively in charge and the federal law “assigns such authority singularly” to NJ DFW (not the DEP).

Based on that US FWS directive, the hunters’ lawsuit argued that DEP Commissioner McCabe’s Order violated federal law:

AO 2018-34 usurps federal law under the Pittman-Robertson Wildlife Restoration Act (“P-R Act”), 16 U.S.C. § 669-669k, which assigns such authority singularly to the DEP’s Division of Fish and Wildlife (“DFW”) ….

In support of those claims, appellants point to correspondence between the DEP and the United States Fish and Wildlife Service (“USFWS”), in which the federal agency advised the DFW to review grant documents in order to ensure federal grant moneys for wildlife restoration were not being misapplied as the result of EO 34.

That is an astonishing political maneuver by US FWS to promote hunting and undermine the policy and power of a State Governor. For a so called “conservative” Trump administration to run roughshod over States is deeply hypocritical.

And it provides more evidence of the Trump administration’s reckless pro-hunting policy.

Thankfully, the Court rejected those political games.

2. Court repeatedly cites DEP’s regulatory power over DFW

As I previously wrote, the DEP has regulatory power that is superior to the NJ Division of Fish and Wildlife. Specifically, as recognized by the NJ Supreme Court, the DEP sets the overall bear hunt policy that DFW must follow. The Appellate Court restated this several times:

Subject to the approval of the Commissioner of the Department of Environmental Protection (“DEP”), the State Fish and Game Council (“Council”) is empowered to “formulate comprehensive policies for the protection and propagation of fish, birds, and game animals,” “for the propagation and distribution of food fish,” and “for the keeping up of the supply thereof in the waters to the State. (N.J.S.A. 13:1B-28.)

Gov. Murphy and DEP Commissioner McCabe need to read this – they continue to ignore their legal power to set final policy on the bear hunt.

3. DEP’s reliance on “proprietary” power – instead of regulatory power – establishes dangerous precedent

The DEP relied on the State’s and DEP “proprietary” powers as land owner, instead of their regulatory power delegated by the Legislature and their public trust obligations to manage wildlife.

The Court basically ruled that DEP could act as they pleased with respect to State lands and do so with no procedural safeguards or public input.

This is a dangerous and bad idea.

The management of public lands and wildlife is NOT “proprietary”. Public resources must be managed democratically and subject to transparent and participatory processes. The public’s opinions must be considered.

For example, can DEP now assert “proprietary powers” and decide to log state forests and do so without even holding a public hearing? 

Can DEP manage parks, e.g. expand private concessions, commercially develop, or even privatize State Parks, with no public input?

The Court seems to approve of that.

4. Court’s remand to OAL misconstrues science versus policy

The hunters argued that the DEP Order was “arbitrary and capricious”.

The Court partially agreed and remanded the case to the OAL:

That neutral quasi-judicial forum shall address the hotly-disputed and fact-dependent claims that the closure is arbitrary and capricious, conflicts with the scientific underpinnings of the CBBMP, and imperils public safety.

The Court misconstrues the relationship between science and public policy and ignores the legal fact that DEP is in charge of policy.

This is shocking, given that the Court cited the Comprehensive Black Bear Management Plan and its policy objectives, especially the concept of “cultural carrying capacity”

DFW’s active, integrated bear management strategy is effective and essential for maintaining bears at a density that provides for a sustainable population within suitable bear habitat, minimizes human-bear conflicts and reduces emigration of bears to unsuitable habitat in suburban and urban areas. The black bear population in New Jersey is beginning to stabilize at a level that DFW believes is consistent with the cultural carrying capacity for this species in the state. 

“Cultural carrying capacity” is not limited to a scientific basis, it is a public policy concept: (definition)

In habitats near humans, the biological carrying capacity can sometimes support more black bears than humans in the area are willing to tolerate. This number, which is often less than the biological carrying capacity, is called the cultural carrying capacity.

As the NJ Supreme Court has recognized, the Legislature has delegated power so that DEP is “the decider” on policy issues governing the bear hunt.

Public policy should be based, in part, on the best available science, but is a far broader field than science.

That means that DEP decisions don’t have to be exclusively and narrowly “fact dependent” – they can reflect public values and public policy objectives that transcend science.

That means that the “scientific underpinnings of the CBBMP” are not controlling – DEP may inject other wildlife conservation concepts  – including animal rights – and other public policy and ethical values.

Let’s hope DEP and the Attorney General can explain these concepts to the OAL judge that hears the case on remand.

(Keep in mind that at an OAL hearing, DEP will be forced to rely on fact & science “experts” from the DFW, the same wildlife biologists that supported the hunt, have sabotaged Gov. Murphy, and played political games with their patrons, the hunters.)