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Assembly Leader Fails To Post Bill For A Vote, Despite Prior Assembly Committee Amendments That Further Gutted An Already Weakened Bill

Both Business And EJ Lobbyists Exaggerate The Impacts Of The Bill

Yesterday, Gov. Murphy’s “environmental justice” bill – strongly backed by EJ advocates – failed to receive consideration after Assembly Speaker Coughlin (D-Middlesex) refused to post it for legislative deliberation and vote.

Today we provide a brief note with inconvenient facts and critical analysis that the EJ leadership is not telling their own communities and is not being reported by NJ Spotlight.

Let me attempt to: 1) illustrate confusion and major conflicts between Senate and Assembly versions of the bill; 2) explain how the bill is even weaker than I knew, because it was amended in an Assembly Committee on July 20; and 3) recap the strategic disaster that just occurred.

I)  Conflicts Between Senate and Assembly Versions On Critical Issues

This is a very big deal that is being ignored.

The Senate and Assembly versions are different in very fundamental ways.

The Assembly version includes a mandate that DEP “shall” deny a permit upon a certain finding, while the Senate version provides discretion that DEP “may” deny a permit on a scientifically and legally different finding.

These are huge differences and it is shocking and embarrassing that, after committee hearings in both Houses, that legislators and advocates are on 2 completely different pages.

The Senate version merely authorizes DEP to deny a new or expanded facility permit (my emphasis):

the department may, after review of the environmental justice impact statement, … deny a permit application for a new or expanded facility located in whole or in part in an overburdened community, upon a finding that approval of the permit application would, together with the  cumulative environmental or public health stressors posed by existing conditions located in or affecting the overburdened community, result in a disproportionate impact to the overburdened community when compared to the impact and risk born by other communities in the State….

II)  Substantively, the Bill Is MUCH Weaker Than I Knew

On July 20, I wrote about serious flaws in the proposed legislation (Senate version) and explained why it would not protect overburdened EJ communities because:

1) it exempted all current pollution permits that are creating unjust and harmful pollution burdens;

2) it eliminated local power to block DEP permits in the original version of the bill, stripping people and local governments of real power and forcing exclusive reliance on DEP decisions; and

3) it relied on a vague, standard less “environmental justice impact statement” review process and decision by the DEP (an agency that for decades has lacked the spine, expertise, and resources to enforce EJ policy).

Given DEP’s history on EJ regulation, a standard less legislative delegation of power to DEP – which amounts to a “just trust us” posture – in legislation is absurd.

And it is just not serious to write blank slate legislation on a legally and scientifically complex topic, e.g. like what is an “environmental justice impact statement”? What is a disproportionate burden? What is an unacceptable risk? What does “cause or contribute to” mean, etc.

(for those who do not understand what I mean when I say this EJ legislation is not “serious” and follow my criticism of a “lack of legislative standards” and use of the wonky phrase: a “vague and standardless delegation to DEP” and why there needs to be strict deadlines for DEP regulations, please read Sections 33-34 of the Highlands Act. That law is a well thought out and serious piece of legislation. I drafted these sections.)

But I just now learned that on that same day I wrote that post (July 20), the already weakened version of the bill was further gutted by several terrible Assembly Committee amendments that:

1. exempted medical waste incinerators, regardless of pollution impacts;

2. exempted all small air polluters (and an unlimited amount of pollution) by including a huge 100 ton per year emission threshold;

3. exempted toxic site cleanup risks; (e.g. Troy Chemical, Passaic River cleanup)

4. created a giant loophole to allow DEP to issue a permit – regardless of unjust or disproportionate impacts, and/or unacceptable public health risks – for an undefined “compelling public purpose“; and

5. extended the effective date of the law from 180 days after passage until after DEP adopts regulations.

This effectively eliminates any deadline for DEP regulations. Let me explain this wonky but critical issue.

The would bill require DEP to adopt regulations, but does not include a deadline. Legally, DEP must have regulations in place before they can make binding permit decisions.

The original version of the bill became effective 180 days after passage and was to be implemented via DEP permit processes.

Because DEP legally must have regulations in place before making EJ permit decisions, this effectively meant that DEP was required to adopt regulations in 180 days, a very tight timeframe given DEP’s traditional lengthy multi-year period for adopting new regulations and the complexity of EJ science and policies.

By eliminating the 180 day effect date and failure to include a deadline for DEP to adopt regulations, the amended bill would allow polluters to receive DEP permits with NO EJ reviews until DEP adopts regulations, which regulations likely will be tied up for many, many years (at least 5 years) by the lack of legislative standards in the bill, scientific complexity, business lobbying, and then polluter lawsuits. And 5 years is optimistic – more like 10 might be realistic.

Failure by EJ advocates who worked on this bill to demand a deadline for DEP to adopt rules is a monumental and unforgivable fuckup.

 III)  Recapping a Political Disaster – Five Factors That Drove This Clusterfuck

1. As I’ve written, environmental justice advocates have been totally ineffective, compromised, co-opted, and been politically played by Democrats for many years.

After many years of failure, for political and self-serving reasons, those advocates grossly exaggerated the strength of the current version of a 6 year old bill, which was developed YEARS BEFORE THE CURRENT PRESSURE CREATED BY STREET PROTESTS.

That original 2014 version of the legislation was gutted 2 years ago, again before the current Movement arose.

Gov. Murphy revived this old compromise. The EJ advocates falsely praised Gov. Murphy for his support of the compromise 2014 gutted bill.

2. The business community, taking advantage of the exaggerated and false claims of EJ advocates, also exaggerated the impacts of the bill. This stoked fears and provided political cover.

3. NJ Spotlight uncritically reported the exaggerations of the EJ advocates and the business community. This further stoked the fears that led to further weakening and the demise of an even weaker bill.

4. Based on Spotlight reported EJ exaggerations and corporate lobbyist, the unions who always fall for the “jobs versus environment” Neoliberal corporate lies were used to provide cover for Democrats.

5. The Democrats now had cover to further amend and weaken the bill and then abandon it.

And just think – a weakened compromise bill didn’t even address the climate catastrophe.

We’re doomed – and the current “leadership” the brought us this disaster needs to step down.

A Sickening Tale of Capture, Cooptation, and Diversion

I just got a Google heads up from “Planet Princeton” that tomorrow – the same day that advocates are urging the Assembly to pass a controversial and seriously flawed environmental justice bill –  the DEP Commissioner McCabe will speak at a public hearing of the Clean Air Council on “strategies to improve air quality near ports and airports.”

The Clean Air Council meets annually to make recommendations to DEP. Typically, their annual public hearing is focused on a discrete topic.

Given the increasing urgency of the climate crisis and Gov. Murphy’s Executive Order directing DEP to adopt regulations to address greenhouse gas emissions (known as PACT), one would expect that the Clean Air Council would focus on strategies to regulate and reduce greenhouse gas emissions.

One would be wrong – instead, just another diversion.

DEP has long neglected enforcing clean air requirements at Port Newark, so it might be interesting to monitor what’s said at that hearing (in fact, the Council held a public hearing way back in 2008 on that same topic!)

I’ve been away for awhile, but I was shocked by the fact that DEP has actually published a document of the “etiquette tips” the public should follow for the meeting.

Are you kidding me? DEP prescribed Etiquette for a public hearing? One just must be civil to the exalted ones from the Chamber of Commerce, Petroleum Council, and Chemical and Gas Industry – and elite DEP Commissioner McCabe! FUCK THAT!

Substantively, I note that the Agenda includes presentations by 3 environmental justice advocates – the same folks who constantly falsely praise the Murphy administration’s EJ and climate initiatives and are supporting a seriously flawed compromise EJ bill.

Maybe if those environmental justice warriors really believed that the EJ legislation was critical, they’d be over on the other side of State Street, lobbying legislators in the Assembly to pass their shitty bill, instead of serving as tokens at another DEP – industry sponsored diversion.

This is how co-optation works – it’s how the game is played. It”s how “advocates” are bought off and settle for symbolic gestures like being invited to speak at DEP events. Ego Uber Alles!

It’s disgusting.

Just take a look at the Council.

John Valeri- a lawyer and key advisor to Gov. Whitman in rolling back DEP regulations and on convincing the Christie administration to ram a gas pipeline through the Pinelands- is Chair of the Clean Air Council and is making an introductory statement on behalf of the Council.

The Vice Chair has a degree in economics.

One “public” member – “representing the public” – is lobbyist for major polluter South Jersey Industries (aka South Jersey Gas, the folks who build gas pipelines through the Pinelands, whose CEO has gross ethics violations as a result of his wife’s role in the Christie Gov.’s Office,  and get DEP permits and Pinelands Commission approvals expedited).

The other “public member” – “representing the public” – is a lawyer who represents the NJ Petroleum Council. Yup, petroleum, as in fossil fuel.

Mike Egenton, of the Chamber of Commerce is the Co-Chair of the Clean Air Council.

The only person with technical expertise on air pollution control regulatory matters represents industrial polluters and makes big money as a consultant to major polluters.

There are no environmental groups or “Mom’s for Clean Air” representatives on the Council.

You really can’t make this shit up.

I sent this note to the folks over at Planet Princeton:

Hi there – just read your public notice on tomorrow’s Clean Air Council hearing.

DEP Commissioner McCabe and that group, dominated by industry and their consultants, does NOT want to talk about controversial air quality issues (especially as an “environmental justice bill is up in the legislature tomorrow), including:

Murphy DEP Updates Air Pollution Cancer Risk Levels, Ignores Cumulative Impacts And Environmental Justice Considerations

Murphy DEP Urged To Close Regulatory Loopholes On Climate Change, Risk Assessment and Hazardous Air Pollutants

Murphy DEP Fails To Consider Climate Or Public Health Risks Of Multiple Toxic Air Emissions From Paulsboro Refinery

As He Touts Climate & Environmental Justice Policies, NJ Gov. Murphy’s DEP Proposes Renewal of Newark Garbage Incinerator Air Permit

18 Years After Scathing Criticism By Federal Judge For Ignoring “Environmental InJustice”, NOTHING HAS CHANGED AT NJ DEP

Just a few of the major air quality issues these guys get paid to divert the press and public and environmental groups from focusing on.

Perhaps you might want to cover these issues?

Bill Wolfe

• former DEP policy analyst (13 years)
• former Policy Director NJ Sierra Club (7 years)
• former Director NJ Public Employees for Environmental Responsibility (10 years)

End Note on Etiquette:

According to the DEP “etiquette tips”, the public is limited and may not ask questions of presenters:

This post surely won’t make me any friends, but once something false and harmful comes to my attention, I feel a responsibility to respond and try to avoid the harm and focus on a better path.

Last night, I got an “Action Alert” (sic) urging me to act in support of an “important letter“, from over 200 NJ organizations, in support of the pending environmental justice legislation, a bill that I have harshly criticized recently (i.e. see this and this).

The letter was titled – in large font boldface:  

“Stop Environmental Racism, Pass S232/A2212 – July 30, 2020″

How does a person of good faith oppose an effort to “stop environmental racism“?

Let me start by being blunt: obviously, the bill won’t “stop environmental racism”, as the demagogic authors claim.

In fact, the bill would do just the opposite: passage will create a false expectation among poor and communities of color that their legitimate grievances are being addressed, while locking in the racist regulatory status quo – via tools we know won’t work – and rewarding politicians for doing virtually nothing to improve the disproportionate burdens that already overburdened EJ communities now bear.

(for a preview of what EJ communities will be assaulted with under the “environmental justice impact statements” required under the bill, check out this Covanta (Newark incinerator) propaganda.)

The letter suggested:

So, I immediately sent an email to the contacts – not surprisingly, I haven’t heard back yet and I don’t expect to. Here it is:

Greetings – I was forwarded your letter in support of the pending EJ bill. You all know I’ve been an advocate for EJ for many years, so I hope my motives are not in question and we can focus on the substance.

I strongly disagree that the bill would do what you claim, specifically:

“expanding the rights of residents to weigh in on decisions, reducing disproportionate pollution burdens, promoting clean businesses over toxic industries, and making New Jersey a leader in the fight for environmental justice.”

1. The current version of the bill eliminated the local veto provision of the introduced version, so claims of “expanding the rights” is absurd and cynical.

Community comment to DEP, backed up with no teeth, on an EJ impact statement hardly “expands the rights of citizens“, especially in light of the deleted provision that would have given local governments effective veto power.

2. You use the term “rights”, when the legislation fails to address NJ’s federal case law in the Camden case regarding civil rights law and DEP permitting. So, using that word is highly misleading.

3. The bill WOULD NOT reduce current “disproportionate pollution burdens” because it grandfathers existing DEP permits and only applies to “new or expanded” permits, not the current pollution or current pollution permits. This amounts to a deeply misleading claim.

4. I have no idea how you reached the conclusion that the bill would:

“promoting clean businesses over toxic industries,”

And I question  whether promoting business is a legitimate objective of the EJ activist community.

5. Similar issue regarding claim of:

“making New Jersey a leader in the fight for environmental justice”

6. What is the status of DEP’s proposed renewal of the Newark Covanta permit? Ditto Camden and Union. Why are you not demanding the shutdown down of these toxic climate polluters?

Given the current political situation related to the Black Live Matter Movement and street protests, your support for this bill, introduced in 2014 and weakened several times since then, is political malpractice and a sellout.

I was wondering how you respond to criticism of flaws the bill, where I document all these criticisms with citations to the text of the bill, see:

Gov. Murphy’s “Environmental Justice” Legislation Would Do Nothing To Reduce Current Pollution or Unjust Disproportionate Burdens In Minority Communities

For questions on political strategy, see:

Now Is the Time To Make Real Demands On Environmental Justice Legislation

18 Years After Scathing Criticism By Federal Judge For Ignoring “Environmental InJustice”, NOTHING HAS CHANGED AT NJ DEP

Looking forward to your reply.

PS – I was fighting the Newark and proposed Trenton incinerators (and the work of the NJ Hazardous Waste Siting Commission) from inside DEP – and putting my career and family on the line – in the late 1980’s on the grounds of injustice to impacted black communities, so please don’t try to question my motives.

The small group of people that lead NJ’s environmental justice community are nice people, but they have gotten played for many years by cynical and manipulative Democrats, who have talked the talk, but done virtually nothing to put in place enforceable legal protections and very little to improve actual conditions in EJ communities.

It’s too long and ugly a history to rehash in detail here, but let me mention a few milestones and malefactors.

For almost 30 years, there have been several Executive Orders, DEP Administrative Orders, and many self congratulatory press releases from Governors and DEP Commissioners on “environmental equity” (Whitman), which morphed into “Environmental Justice”.

There have been DEP Reports, Advisory Councils, scores of “Stakeholder” meetings, and several conferences, roundtables, symposia, workshops, and events. Lots of talk, no walk. All process, no substance.

There have been all sorts of funding opportunities for various “environmental justice” organizations and their “campaigns” – provided by “liberal” Foundations (Dodge, Fund for NJ, Wm. Penn, et al), polluting corporations (Covanta, PSE&G, et al), cities, counties, US EPA and NJ DEP.

Those funding deals assure that EJ groups don’t step outside the acceptable political limits set in Trenton, or threaten any politician, agency, or corporation. They marginalize the “radicals”. They severely limit the scope of real reforms. They reward the inside game and undermine grassroots activism and local groups.

The EJ groups even hired a retired DEP expert on air pollution – a woman who had no interest in advocating for meaningful regulatory recommendations, which would reveal the fact that she managed the DEP program that, as federal District Court Judge explained in detail, completely ignored environmental justice considerations.

Retired DEP officials who become consultants never air DEP’s dirty laundry.

They were played by DEP Commissioner Brad Campbell in Camden and on regulations.

They were played by DEP Commissioner Lisa Jackson, a black woman, who used native Americans as props at her EPA Senate confirmation hearing.

They were played by Assemblywoman Grace Spencer, another black woman, who worked the Essex County Democratic Machine line (and was rewarded for her loyalty by a judicial appointment).

They were played by Newark Mayor Cory Booker, a black man and now US Senator.

All of theses people made self serving and manipulative promises that never arrived.

This shabby history repeats itself in the current pending legislation.

So, feel free to “cancel” me if you can’t deal with accepting the facts about this terrible compromise legislation and the compromised groups and individuals that are manipulating well meaning people and organizations across the state to support their misguided compromise.

From Bauhaus To Bird House

NJ Audubon praised Trump’s “conservation ethic”

I got a rise out of this description of Trump in today’s NY Times:

Is there another American president whom it is harder to imagine in the wild? It was important to George W. Bush, a man of Houston and Yale, to forge a political identity that had him connected to the land, so he would chop wood at his ranch in Crawford, Tex., in the 100-degree heat, for reporters to observe. Mountain biking was also a passion. His father liked to fish off the coast of Kennebunkport in Maine on his boat, The Fidelity. Some of the most enduring images of John F. Kennedy are those of him at the helm of a sailboat off Hyannis.

Alternatively, the current president spends his leisure hours either in Palm Beach or a golf club that bears his name, 40 miles west of Manhattan, in Bedminster, N.J.

“Hard to imagine [Trump] in the wild”. What a great line.

But, not so fast.

In a very different view from that same Bedminster NJ golf course, Eric Stiles, the CEO of NJ Audubon Society, once saw things quite differently.

Stiles felt so strongly, he formed a “Partnership” with Trump.

In a colloqui with Trump in a NJ Audubon “Stewardship” publication, Stiles said this about Mr. Trump’s love of wild nature.

Trump expressed pride in his efforts to “expand habitat”:

“I take great pride that the US Fish and Wildlife Service and NJ Audubon recognizes and validates the environmental contribution we have made with the original design of our two world class golf courses in Bedminster. They currently provide for over 200 acres of habitat for indigenous and migratory grassland birds. With this partnership we look forward to their professional guidance in further improving and expanding the habitat at this wonderful property.” said course owner Donald J Trump.

In like fashion, Eric Stiles of NJ Audubon praised Trump’s “outstanding commitment to sustaining native wildlife populations” and “conservation ethic”:

“Trump National is demonstrating an outstanding commitment to sustaining native wildlife populations.” said Eric Stiles, President for New Jersey Audubon. “They are solidifying a symbiotic relationship with the surrounding community to foster environmental awareness and a conservation ethic while enhancing wildlife and natural systems in New Jersey.”

Imagine that!

Trump has an “outstanding commitment to sustaining native wildlife populations”.

Who knew?

We’re not making this up. It’s not Fake News. Here is Documentation. Here is more links to documentation.

Stiles’s organization took a lot of money from Mr. Trump (in the six figures) – very likely significantly more than Trump paid in whore hush money.

So, what does that make Mr. Stiles and NJ Audubon?

Should we just call him “Stormy Stiles”?

We’re still waiting for a public repudiation of  and published apology for this fraudulent “partnership” (which we were told is no longer in effect, but we have no way to document that).

“Stormy” Stiles needs to come clean.

[End Note: My subtitle (Bauhaus…) was an alliterative allusion to Tom Wolfe’s book on modern architecture, which I enjoyed. It was not intended to suggest a serious or coherent policy argument.

But, for the design/architectural folks out there, Trump is engaged in a real debate about design and architecture. Coincidentally, my Wolfe allusion turns out to be an apt depiction of that much larger debate, in that Wolfe criticized elites and modernist architecture, an aesthetic and politics that Trump seems to be echoing.

Ironically, I’m with the Trump imposed classical style.]

Why are EJ activists settling for a very old and flawed compromise bill?

Missing the moment, big time

The visibility, broad public support, and political power of environmental justice activists have vastly increased recently as the result of street protests over racist police violence.

So, now is the time to leverage that political power by making demands for significant substantive reforms, not the typical token window dressing, sham, and symbolic gestures that have characterized the last 20 years of public policy on “environmental justice”.

So, with the Movement rising, the moment ripening, and their power and leverage ratcheting up, why are NJ environmental justice activists supporting a very flawed and very old compromise environmental justice bill that is moving through the NJ Legislature? (see today’s NJ Spotlight story).

The current version of the bill is a significantly scaled back compromise of the original version, which was first introduced back in 2014, S1150 sponsored by Senator Weinberg.

The original bill was gutted in 2 major ways:

1) the local community veto power was removed; and

2) the scope of the community EJ review and DEP’s authority were limited to only “new or expanded” facilities for certain DEP permits (not existing permit, permit renewals, & all DEP permits, including land use).

In addition, there were several other important issues that were not included in the legislation back in 2014, such as:

1) including greenhouse gas emissions in DEP permit reviews and mandating numeric reductions and mitigation requirements;

2) revising the science of DEP’s health risk assessment methods, permit review procedures, and regulatory standards to reflect cumulative impacts of multiple pollutants from multiple pollutant sources;

3) revising DEP’s risk assessment procedures to include the vulnerability, susceptibility, and actual health status of poor and/or minority communities (including consideration of such things as lack of access to health care; lack of access to fresh fruits and vegetables (food deserts); lack of access to open space, parks, and recreational opportunities; excessive noise; the daily chronic stressors associated with racism; and urban heat island effects; among others);

4) linking NJ environmental laws to federal civil rights laws to close legal loopholes and strengthen community and DEP powers;

5) expanding the current NJ Air Pollution Control Act to include a new public health oriented policy of “precaution”;

In addition to the above significant gaps and flaws, the DEP science, risk screening revisions, and overall policy do not address what public health advocates call the “precautionary principle“, which is:

The precautionary principle, proposed as a new guideline in environmental decision making, has four central components: taking preventive action in the face of uncertainty; shifting the burden of proof to the proponents of an activity; exploring a wide range of alternatives to possibly harmful actions; and increasing public participation in decision making.

6) putting teeth in current NJ Air Pollution Control Act “advances in the art of pollution control” legislative standards (known as “SOTA” for “State of the Art”) to enforce the above EJ policies and standards.

7) demand shutdown of polluting, paid for, and unnecessary dinosaur garbage incinerators (Camden and Newark and Union), see:

• As He Touts Climate & Environmental Justice Policies, NJ Gov. Murphy’s DEP Proposes Renewal of Newark Garbage Incinerator Air Permit

Now is the time to make real demands for real change, not settle for compromise.

A real change agenda is presented above.

It’s time for NJ’s EJ activists to get bold, not fold.

[End Note: This post is not about “purity trolling” or “virtue signaling”.

(Or a case of what  Lisa Jackson, Obama first term EPA Administrator, typically admonished bold thinking: “Don’t let the perfect drive out the good”).

Rather, reflecting current science and grounded in law, it is a technically sound and realistic assessment of the political viability and opportunity to leverage activists power, informed by 35 years of Trenton and DEP legislative, regulatory, political and activist experience.]