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Petition for rulemaking is a long ignored tool to generate public pressure for reforms and hold DEP accountable

A Citizens Guide To Regulatory Power

A Tool To Reverse Trump Rollbacks

Now for something completely different, a brief note on some good news.

I just read a story in the old Bergen Record about a “petition for rule making” submitted to the DEP by animal rights and environmental groups seeking to block this year’s scheduled bear hunt, see:

• Critics have a new argument for why NJ bear hunt should be canceled: the pandemic

Unfortunately, the story again failed to report on the NJ Supreme Court’s decision that vests regulatory control of the bear hunt with DEP Commissioner McCabe, NOT the Fish & Game Council. That decision perfectly sets the stage for the DEP petition for rule making on the hunt.

Worse, the story was framed through the COVID lens, and missed the real “new argument” and “new wrinkle”:

The new wrinkle is the alleged danger posed by the coronavirus should the bow hunt, which is scheduled to begin on Oct. 12, be allowed to move forward. McCabe has 60 days to accept the Aug. 3 petition, reject it, or ask for more time to study the issue. 

The real “new wrinkle” is the filing of a petition for rulemaking, a virtually unknown but powerful mechanism provided under a little known but key NJ law known as the Administrative Procedures Act (APA).

The APA provides the public with a tool to force government agencies to consider public demands to adopt regulations to protect the public interest.

DEP must consider and substantively respond to the legal, scientific, and policy arguments made in the petition.

The DEP’s decision to deny a petition can then be appealed to the courts.

Because it is a formal regulatory process, it also can be used to request legislative oversight of DEP decisions.

Therefore, the regulatory petition process provides a mechanism and procedural opportunity to hold DEP accountable to facts, science, law, and public demands.

A rule making petition can also provide an excellent opportunity to educate the public, generate media, and organize public support for real change. That all can be used to generate political pressure on DEP.

Unfortunately, while the business community has filed many petitions for rule making to DEP, the environmental community has long ignored this important tool (see DEP’s rule petition webpage – note that the August 3, 2020 bear hunt petition has not even been posted yet!)

Under Commissioner McCabe, the DEP has virtually abdicated its regulatory responsibilities. That is a particularly egregious failure in light of 8 years of Christie DEP regulatory rollbacks, at least 100 Trump regulatory rollbacks, and the escalation of the climate emergency.

Therefore, the Murphy DEP should be barraged with petitions for rulemaking from the NJ environmental community on numerous issues, especially to get out in front of and frame the upcoming climate regulations DEP has named “PACT”.

A rule petition is a far more effective way to influence DEP than to sit around the table and get played in the DEP’s informal “Stakeholder processes”. That’s just where DEP wants you to be – safely in the room, instead of forcing their hand legally and out in the streets targeting DEP regulations for public protest demands.

I’ve been urging NJ environmental leaders to file these petitions for years, so now I’ll rehash that as a template for citizens.

In addition to reversing trump rollbacks (and forcing NJ Democrats to walk the walk) NJ State issues include not only climate and 401 WQC, but to restore protections for Category 1 buffers; repeal of all Christie DEP rollbacks; real consideration of EJ in permitting; strengthen risk assessment; expand the “state of the art” standards in Clean Air permits to address GHG emissions; regulate GHG emission in land use and all other DEP permits; block logging in forest management and “stewardship” (and put teeth and current science in the voluntary and ancient forestry wetlands BMP Manual); make BMP’s comply with water quality standards; restrict abuses of OPRA “deliberative privilege” secrecy loophole; prohibit the use of cost-benefit analysis, unless explicitly mandated by black letter law; and adopt and implement the precautionary principle (and many, many more).

I)  A Citizens Guide to Regulatory Power

Here is an example of a Petition for rulemaking I filed – note the legal requirements and format.

Another important and timely issue that should be the subject of a rule making petition is the Clean Water Act Section 401 Water Quality Certificate issue. It is the most powerful mechanism to kill pipelines and other fossil infrastructure and DEP is totally ignoring it.

In the 401 WQC context, the legal bases would be the federal Clean Water Act, the NJ Water Pollution Control Act, The NJ Water Quality Planning Act, the NJ Freshwater Wetlands Protection Act, the NJ Flood Hazard Control Act, DEP’s Organic Act (forgot the cite), and the NJ Administrative Procedure Act.

The primary regulatory bases would be the NJ Surface Water Quality Standards (NJAC 7:9B-1 et seq.), the WQMP planning rules (NJAC 7:15-1 et seq), the NJPDES rules (NJAC 7:14A-1 et seq), the stream encroachment rules, the Freshwater Wetlands rules – here’ a link to DEP rule page to provide proper citations.

The NJ state requirements are broader in scope than the federal Section 401 WQC – e.g. apply to more projects (e.g. intra-state non-federal projects) and more “regulated activity”, so be sure to make this clear.

II)  Content for a 401 WQC petition

Here’s what you need to petition DEP to do:

1. Withdraw current regulations applicable to pipeline and related fossil infrastructure construction, e.g.  Wetlands GP#2 and a FHA PBR #36. These DEP regulatory frameworks provide totally inadequate environmental assessment, DEP review processes, enforceable standards, public participation and environmental safeguards – while they ignore the 401 WQC powers and NJ Surface Water Quality Standards.

2. Promulgate comprehensive new 401 WQC regulations, which are integrated substantively with the upcoming Climate PACT regulations such that lifecycle GHG emissions are considered, including secondary and cumulative emissions and fugitive and/or unregulated emissions; enforceable requirements are established to limit emissions as necessary to achieve net zero or science based numeric statewide reductions; all emissions are subject to a 2-1 mitigation (or offset) requirement. These requirements must be incorporated into ALL DEP approvals for all regulated activities that emit (direct or indirect) GHGs.

3. New WQC regulations must include mandatory requirements for at least the following:

a) a water quality analysis – with a compliance demonstration (i.e. project may not “cause or contribute” to a violation, including temporary violations, of any SWQS.

The water quality analysis must require demonstration of compliance with NJ DEP’s Surface Water Quality Standards (NJAC 7:9B-1 et seq.), including “antidegradation policy and implementation procedures”, including anti degradation review, application and enforcement of numeric and narrative standards, and a required demonstration by the applicant that all existing and designated uses are protected.

b) This would include a “reasonable potential” analysis of the project’s “potential” to “cause or contribute” to an “excedence of a surface water quality standard”, including from accidents, and point and non-point sources of pollution.

As per the DEP’s NJPDES rules, this would require a DEP approved QA/QC plan and at least 4 quarters of statistically representative data on the current biological, physical and chemical water quality characteristic of impacted waters, including, among other  things, existing water quality, stream flows, temperature, pH, all water quality parameters in the SWQS, and an inventory of current existing uses, especially macro-invertebrate species that are vulnerable to pipeline construction impacts and things like the blowouts and mud deposition we’ve seen repeatedly.

You might want to suggest that the prior DEP method for reviewing disturbance in a C1 buffer could serve as a template for some of the biological and water quality characterization and that current NJPDES “antidegradation policy and implementation procedures” and “reasonable  potential” analysis should be considered as well.

The same requirements must be established for demonstrating compliance with the NJ DEP groundwater quality standards.

Obviously, you need to lay this all out – might want to look at NY DEC pipeline 401 WQC denies for technical details.

Let’s get this party started!

There is sufficient information teed up to get petitions filed soon.

Members of NJ environmental groups should contact their leaders and professional staff and demand that they get off their asses on this.

[End Note: I just got a great email question from a dedicated citizen activist:

Being fairly new to this , why don’t the enviro groups use this more?

Here’s my reply:

It’s perceived as too aggressive. It puts DEP on the spot and forces them to make a decision. It embarrasses the Commissioner and the Gov. Many ENGO folks don’t want to do any of that or bite the hand that [grant] feeds them. They would rather “work with DEP” and play the “Stakeholder” games.

Plus, most of them know absolutely nothing about regulations – or are too lazy to work on them. Not sexy. Too much like work.

NJ Spotlight once again puts lipstick on a pig

DEP minimizing the scope of the problem & abdicating regulatory responsibility

Right now, I’m up in wonderful “green” Vermont. I spent the last 2 nights in Breadloaf Wilderness.

I’m here because I left Burlington in disgust after learning that Lake Champlain has a toxic algae bloom – they call it a cyanobacteria bloom here, but the politically framed excuses in Vermont were the same as those in NJ: i.e. after being warned NOT to allow my dog to swim, I asked an official what was going on. I was told that record low lake levels and warm water were the problem (thus implying a “natural” uncontrollable cause and omitting the man made causes of excessive nutrient loads from over-development, lax regulation, and catastrophic climate warming).

With that bad taste still in my mouth, I opened my email this morning to find another misleading NJ Spotlight story about NJ’s HAB problem.

According to NJ Spotlight, the story was based on a DEP  “online news conference on the status of the problem”.

Why does the press always react to the DEP spin?

Why not just do some real investigative journalism, report the facts, and examine the actual effectiveness of DEP programs and regulations that are designed to prevent the problem?

After reading the DEP’s promotion of “green infrastructure” (a slogan from their flawed stormwater regulations), this DEP spin really set me off:

Last summer, more than 30 lakes were affected by the blooms, and the number is about the same so far this year, DEP officials said.

There are 16 confirmed blooms so far this year, slightly more than the 12 that were confirmed by the same point of 2019.

I have written several times, emailed NJ Spotlight reporter Jon Hurdle multiple times, and have been trying to get the word out that DEP rolled back last year’s warning & lake closure threshold of 20,000 cells/ml to 80,000 this year.

Once again, Spotlight failed to report that.

But, by reporting DEP’s comparison of last year’s data to this year, Spotlight has gone even further and actively misled readers.

It is not valid to compare last year’s HAB episodes with this year’s episodes because DEP changed the threshold!

On top of that, once again, NJ Spotlight gave DEP a pass on massive planning and regulatory failures – serious failures that should be the focus of a critical story and not some after the fact response by Jeff Tittel to DEP’s spin.

I fired off this email to Mr. Hurdle:

Jon – it is not valid to compare and report the number of lakes this year with last year, because DEP changed the thresholds!

When will you report that critical fact?

Because the threshold is much higher (80,000 cells/ml this year compared to 20,000 cells/ml last year), the actual number of lakes impacted and the risks to public health (and pets) is MUCH BIGGER AND BRODER THAN DEP IS REPORTING.

Again, if DEP ever raised the ground level ozone standards and the number of bad air days were reported as the same as last year, that would not pass the straight face test and would be widely denounced.

Similarly, the DEP has adopted very weak and totally ineffective “Total Maximum Daily Loads” (TMDLs) for lake nutrients. Those TMDLs are the legal and regulatory mechanism (science based and quantitative and thus enforceable) under the Clean Water Act to address this problem.

Worse, DEP has actually rolled back specific regulations that were designed to prevent and reduce nutrient loads, including Highlands, Category One buffers, WQMP (septic maintenance), stormwater management, wetlands, and stream encroachment.

There are also huge gaps in current DEP regulations regarding land use, septics, non-point pollution, water quality standards for nutrients, and climate change (hydrology).

WHY IS NONE OF THAT REPORTED and instead, DEP IS GIVEN A PLATFORM TO SPIN ALL THIS AT A PRESS CONFERENCE?

Wolfe

Op-Ed Praises DEP Rule That Ignored Climate Change and Rolled Back Protections

Repackages the builders arguments in current political slogans

A quick note today on an egregiously false and misleading Op-Ed published today by NJ Spotlight, that cynically parades under “green”, climate and environmental justice slogans, see:

• Climate Change is an Equity Issue; Green Infrastructure Can Help on the Water Front

NJ Spotlight provided a platform to another basically corporate voice that opportunistically appears and jumps on the climate and “justice” issues. (while they have ignored this very recent worthless DEP coastal (CAFRA), wetlands, and steam encroachment rule proposal currently open for public comment. More to follow on that literally substantively empty rule proposal in a future post).

While doing so, the author merely repackaged longstanding developer criticisms of the failure of DEP’s regulations to address existing development. But the builders’ use that serious flaw not as a way to improve water quality and reduce flooding, but as a means of avoiding regulation of new development by claiming that they are unfairly bearing a regulatory burden for problems caused by other pollution sources. Here’s that argument, right up front in the subtitle: (emphasis mine)

Newly adopted [DEP stormwater] rules are good, but we must dramatically improve stormwater management on previously developed sites

The primary problem is that the Op-Ed is cynically Orwellian and riddled with falsehoods and spin.

First of all, while the author highlights the climate issue and claims an “equity” mantle, the author praises a DEP stormwater regulation that completely ignored climate change and environmental justice, rolled back existing water quality & flood protections, and codified the Christie DEP’s anti-environmental and anti-regulatory pro-economic development policies. For the details on that, see:

• After 12 Months In Office, Murphy DEP Proposes First Regulation, And It Is Awful

Let’s repeat that: the author highlights the urgency of the climate crisis and environmental justice, but then praised DEP rules that completely ignored climate and justice issues!

The Murphy DEP stormwater rule was so bad, it was blasted by FEMA, see:

• FEMA FLAYS MURPHY DEP STORMWATER PROPOSAL

FEMA flagged many significant and fatal flaws (described as “significant deficiencies“) in the DEP proposal. FEMA wrote: (emphasis mine)

 To highlight, FEMA finds that the abandonment of the nonstructural stormwater management in design and the absence of restrictions in the increase in runoff volume post-development to be significant deficiencies. FEMA is also concerned that the proposed rule does not consider future conditions of increasingly intense precipitation that is expected with climate change. The use of the term Green Infrastructure will not offset the proposed changes to the nonstructural stormwater management strategies and the multiple missed opportunities to reduce riverine and urban flooding impacts.

Flat out lying about all that, the NJ Spotlight Op-Ed author claims – falsely – that the DEP’s “green infrastructure” rules are “good” and are “required“. The author wrote: (emphasis mine)

The rule amendments adopted by the New Jersey Department of Environmental Protection earlier this year, which take effect next March, require the use of green infrastructure to manage stormwater from new developments.

That false claim directly contradicts FEMA’s accurate criticism that the DEP’s green infrastructure regulatory provisions are NOT mandatory and they replace more stringent and more effective requirements. FEMA wrote:

(Note: a “BMP” is not a mandatory numeric standard. DEP relies on BMP’s and presumes that they satisfy water quality standards, without any science, data, or site specific evidence to support that presumption. There is a similar problem with the volume of water.)

The author then again falsely claims that “standards for water quality” remain “unchanged”:

To be clear, however, the Phase One amendments, also known as the green infrastructure rule, may not move the needle much on water quality or flood control because (a) the underlying standards for water quality, groundwater recharge and quantity control are unchanged and (b) the rules do not apply fully to redevelopment.

That is a false statement. The DEP stormwater rule eliminated water quality standards in the prior stormwater rules, including for nutrients and suspended/dissolved solids, the primary non-point source pollutants (also the primary causes of Harmful Algae Blooms that are closing NJ lakes to recreational use).

[Update: DEP proposed a variance loophole too: (@p. 39)

Here is FEMA’s criticism of the fact that DEP’s “green infrastructure” rules are NOT mandatory as the Op-Ed author claims and the fact that DEP eliminated of prior standards for water quality:

The author mentions the upcoming DEP climate PACT rules, but, among many other things, fails to mention the critical issue of the “design storm” (see my quote from a prior NJ Spotlight story)

What ever happened to the DEP policy to begin to regulate based on the 500 year storm event to address climate change, see:

• STATE WANTS SEWER PLANTS TO PLAN FOR 500-YEAR STORMS

“It’s extremely significant,’’ said Bill Wolfe, director of the New Jersey chapter of Public Employees for Environmental Responsibility, who first reported the changes on his blog, wolfenotes.com. “It will make a difference.’’

Is DEP Commissioner McCabe even aware of this? If so, why did she sign off on such a clearly deficient – and technically inconsistent – rule proposal?

Finally, the author – after these and other factual errors, spin and lies – highlights that:

success depends on credible voices

Not mentioned in the Spotlight authors Op-Ed bio blurb is the fact that she has zero technical credibility with respect to DEP regulations (legal or scientific).

I Googled the author’s background. The author has no scientific, technical or regulatory training (but a BA in English), she is a local politician, and was a staffer to corporate and developer dominated faux environmental groups, including Sustainable NJ and NJ Future.

Here’s a note I sent in frustration to NJ Spotlight reporter Jon Hurdle (Tom Johnson has blocked me):

Jon – no coverage of this recent DEP rule proposal enabled today’s Spotlight Op-Ed to mislead people.

Prior NJ Spotlight coverage of the DEP’s stormwater rule included FEMA’s harsh criticism of a severely flawed DEP rule the the Op-Ed author praises. Shouldn’t readers know that?

Spotlight readers should also know that the author, who stressed the need for “credible voices”, has no technical, scientific, or regulatory background, but instead a BA in English and local political experience. Who is her current employer?

Spotlight needs to do much better.

Wolfe

Failed State and Trump Executive Abuses Are No Accident

Fascist Front – From Seattle Crackdown To Fake COVID Bailout

Congress Goes On Vacation, As Protections Expire During Deadly Pandemic & Economic Collapse 

If I were a real historian, writer, or intellectual, I would write an extended post comparing conditions in the German Weimar Republic with today’s conditions (unemployment, economic collapse, Congressional gridlock, loss of credibility in all liberal institutions and ideas, street violence, Brownshirt crackdown, culture wars, et al) and Trump’s Fascist tendencies and overt Fascist moves.

(Note: Chris Hedges does that in the final Chapter, “Freedom”, of his book, “America, the Farewell Tour“)

The latest example is the failure of Congress to respond to the current crisis, where something like 30 million people are unemployed, millions more can’t pay the rent or mortgage and are vulnerable to eviction or foreclosure, and millions more have lost their employer provided health insurance during a deadly pandemic.

All those who oppose Medicare For All, please raise your hand for $100,000 hospital bills!

Meanwhile, Congress fails to respond. Can it get worse?

Yes.

These failure are being portrayed falsely and naively in the mainstream and even progressive media as merely standard partisan bickering.

[Update: Just 1 day – 1 day – after I make the charge, the NY Times confirms it with this:

• Trump Goes Around Congress to Provide Pandemic Relief 

Five days later, they run a book review with the same warning:

“When we first heard of the political myths we found them so absurd and incongruous, so fantastic and ludicrous that we could hardly be prevailed upon to take them seriously,” Cassirer would later write, before his death in 1945. “By now it has become clear to all of us that this was a great mistake.” ~~~ end update]

Instead, the Republicans in the Senate have blocked any possibility of assisting millions of Americans in distress in order to allow Trump – their Fascist leader – to take executive action in the run-up to the November election (and yes, I was warning of Trump’s Fascist tendencies, even before the Inaugural)

How many people will be duped by a check from Trump? More than the voters he and Republicans are systematically suppressing?

The actions of Senate republicans are so obviously a ploy to provide Trump with an opportunity to appear to be responding to the needs of forgotten working class Americans. That’s the message he won 2016 on.

It’s all part of the larger Trump Big Lie.

And for those who need to be reminded of how this mimics the failed Weimar Republic and rise of Hitler, please see the BBC short version.

I’m done and far too lazy to invest my time and energy in researching and laying out this analysis.

But it is so obvious to me, I’m shocked that other writers haven’t done so.

We hope they’re just getting ready to publish – or I’m missing it while on the road.

NJ Spotlight And ENGO’s Are Helping Them

Will all those who have taken PSE&G money please raise your hand?

PSE&G’s “Money Talks” In NJ

Perhaps you missed it, but yesterday, the NY Times published a hugely important Op-Ed – written by a former NY Times reporter – aptly titled: “When Utility Money Talks” (please read the whole thing. The courage and integrity to write a piece like this just might explain why the writer is a “former” NY Times reporter).

The focus of the Op-Ed was on the Ohio nuclear bailout scandal and the tactics that allow utility “money to talk”, which has parallels to NJ’s own billion dollar nuclear bailout.

Those cases are only the most recent examples in a wave of utility wrongdoing that has come to light in recent years across the nation. […]

Taken together, these and other cases demonstrate that too many power and gas companies have sought to exercise undue influence over the governments that nominally control them. Utilities spend lavishly on campaign contributions, dinners, hunting trips for politicians and more. They set up fake citizens’ groups to support their undertakings. And they have been known to ply nonprofit community organizations with “donations” to take public stances that favor the utility — and against the real interests of the people these organizations ostensibly represent. …

For citizens elsewhere, the big message from all these scandals is that you cannot assume your state government is working in the public interest as it oversees the energy transition. …

… citizens are getting a clearer picture of what they are up against. They are not just fighting dirty energy — they are also fighting the dirty money in politics that keeps it alive.

It is instructive to compare the NY Times’ critical description of the Ohio scandal with NJ Spotlight’s cursory coverage of that scandal.

NJ utility giant PSE&G is desperately seeking to avoid that Ohio scandal story getting attention and investigation in NJ, because if it did, not only would PSE&G face possible criminal sanctions, the public outrage that would ensue very likely would derail renewal of PSE&G’s nuke bailout, which is currently pending before the NJ Board of Public Utilities.

NJ legislators who supported and rammed the NJ nuke bailout through the legislature and Gov. Murphy who signed it into law face the same criminal and political vulnerability.

NJ environmental groups who supported the deal also face embarrassing disclosures of how PSE&G “money talked” in influencing their support.

So, how did NJ’s premier media outlet, who focuses on energy policy, report the Ohio story?

Did NJ Spotlight explain in detail what happened in Ohio and raise potential similarities with NJ’s nuke bailout?

Did NJ Spotlight report on how PSE&G’s money talks in NJ? (even at their own publication).

No, they didn’t.

After the July 28 superficial coverage, today NJ Spotlight printed PSE&G propaganda, which was designed to create a bright shiny object to divert the attention from the Ohio scandal and put PSE&G in a positive light and influence the BPU’s upcoming nuke bailout renewal decision.

This is not the first time NJ Spotlight has reported PSE&G diversionary propaganda news management.

PSE&G pulled exactly the same propaganda stunt back when PG&E announced closing of Diablo Canyon nuke plant and California regulators announced that they were phasing out nuclear power.

The California regulatory phase out decision was made just at the time that PSE&G was seeking a bailout – not a phase out – of its nuke plants.

While PG&E Diablo Canyon closure and California were phasing out nukes, NJ DEP was subsidizing and deregulating them: DEP Says Salem Nuclear Good to Go Without Cooling Towers. (I testified in opposition to that permit – another example of how PSE&G money talks to conservation groups and regulators – and wrote about it here).

Instead of reporting on California’s phase out – a policy option never even on the table in NJ – the discussion in NJ was limited to assuring the economic viability of nukes as a “zero carbon” emission source, see: Will NJ Consumers Be Hit with Zero-Emissions Surcharge for Nuclear?

And later, at precisely the time while California regulators were phasing out nukes – a major policy of national significance that NJ Spotlight never reported on –NJ Spotlight provided a platform for PSE&G sponsored content, provided former Gov. Florio a platform to support PSE&G, provided the business community a platform to support PSE&G, gave PSE&G another platform.

In a remarkably corrupt move – not reported by NJ Spotlight – NJ’s US Senator Booker and NJ Senate President Sweeney kicked off the nuke subsidy campaign in support of PSE&G, see:

• Senators Booker and Sweeney Team Up To Promote More Nuke Subsidies

Even before bailout legislation was introduced, back in January 2017, Spotlight, gave PSE&G a platform to make their case,

In a move to tamp down opposition, in August 2016, Spotlight even reported this “fake news”: New Jersey Unlikely to Follow New York’s Subsidies of Nuclear Industry

While the Ohio scandal was downplayed and the California nuke phase out story was ignored completely, NJ focused NJ Spotlight did manage to report an out out of State story from Illinois: favorable to the nuke industry, see: Federal Court Upholds Illinois Decision to Subsidize Nuclear Plants.

And from Pennsylvania, see: Without Subsidies, Three Mile Island Could Go Dark, Operator Asserts

And before all that, back in February 2017, Spotlight reported PSE&G line: PSEG Still Looking for Subsidies to Help Keep Nuclear Fleet Afloat

Of course – just like the Ohio nuke bailout scandal – the California nuke phase out story had to be squashed because it was an existential threat to PSE&G – and NJ Spotlight played right along with PSE&G’s news management diversion.

Yes, PSE&G’s “money talks” in NJ – at NJ Spotlight, in the Legislature, in the Gov.’s Office, and even in certain environmental circles.

Paraphrasing recently deceased writer William Greider, Who will tell the people about all that?