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A Chorus Of Trumpian Lies And Misinformation Emerge To Falsely Praise NJ Gov. Murphy’s Environmental Justice Legislation

September 22nd, 2020 No comments

Proud To Be “Cancelled” By NJ Environmental Leaders

They Are Political Whores Who Are Incapable Of Substantive Argument

You’re all just pissin’ in the wind
You don’t know it but you are
And there ain’t nothin’ like a friend
Who can tell you you’re just pissin’ in the wind. ~~~ Ambulance Blues, Neil Young (1974)

It’s not unusual in the NJ environmental community to have good faith disagreements about interpretations of complex environmental laws, or different views about policy issues like what to emphasize, strategic judgments of what’s politically feasible, or on the tactics how to frame an issue or a message.

But it is unusual for there to be disputes about basic facts and for those disputes to be grounded in bad faith – e.g. knowing, intentional and self serving factual lies and highly misleading public statements – and for these lies and spin to be printed as fact by the media.

I have not seen this degree of bad faith lying on Gov. Murphy’s EJ law since the NJ Green Mafia lied to and intentionally misled the public about the Constitutional amendment that diverted environmental funds to support the Open Space program.

I recently called out these lies and misinformation in an email broadcast to everyone in my email library. I provided a link to my detailed analysis (see this) and wrote that “anyone who unconditionally supported this [EJ] bill should be ashamed of themselves” a criticism I stand by.

But instead of substantively engaging my arguments, most NJ ENGO’s put their heads in the sand and lined up to “cancel” me for perceived “insults” – just like the Trump cultists. I’m referring to Dave Pringle, Maya Van Rossum, and Patty Cronheim.

In response, a friend wrote:

Bill,

I too find it incredible that these people want off a list that would possibly provide an educational debate with people who agree with David and those with you.

How can “thoughtful” people be critical of  trump’s mindless base that unquestionably agree with their Fuhrer if they close off their minds to a discussion on this environmental law? Beats the hell out of me.

So, since I am making such harsh claims, let me be specific and back those claims up.

There are flat out knowingly false statements (which I will call lies), as well as lies by omission. There also are intentionally misleading statements that go far beyond the typical spin and are designed to dupe the public.

1. NJ Spotlight has published 3 stories that falsely claim that local governments have been granted “power” to block projects

This is NJ Spotlight’s most recent and third lie on this issue:

Prior versions of the EJ bill included a provision that authorized a local veto.

For example, Section 3.c. of S1700 (the bill from the 2018 legislative session) provides:

The department shall not approve a permit application for a project in a burdened community unless the governing body of the municipality in which the burdened community is located adopts an ordinance approving the project.

But that local veto provision was stripped and is NOT in the bill the Gov. signed into law. Period. No debate, that is a fact.

I’ve contacted NJ Spotlight editor John Mooney  – twice – asking for corrections and an opportunity to set the facts straight in an op-ed, but received no response. Here are more facts, with links prove that:

Why does NJ Spotlight continue to mislead readers about this crucial issue? Three times no less?

Why have no EJ advocates corrected the egregious Spotlight falsehood?

Why do they attack me for pointing it out?

2. Nationally renowned NJ based environmental scientist and activist Peter Montague falsely wrote (in a national publication) that the EJ bill provided a legal “right” to a “clean environment”

Peter Montague – who I met in the 1980’s as a DEP analyst during public battles to stop garbage incinerators, especially sited in black neighborhoods  – wrote an “analysis” piece for Truthout, which was published the day before Gov. Murphy signed the EJ bill into law (thus was a coordinated set up piece), see:

The headline is false – the EJ law provides no such legal “right”. In fact, it ignores and does not amend NJ Civil Rights law and ignores federal civil rights law, including on point EJ case law made here in a Camden NJ case. The headline error is repeated in the text of the article.

Montague’s article is not only factually false about the legal “right”, it is highly misleading on several other issues

An actual NJ EJ case out of Camden NJ has set a huge legal precedent in Civil Rights law with respect to proving “disproportionate burden” see: South Camden Citizens v. NJ Dept. of Environ., 145 F. Supp. 2d 446 (D.N.J. 2001)

Camden EJ activists won a US District Court case that basically ruled that factual evidence of disparate impact was sufficient to demonstrate a civil rights violation under federal law. The District Court Judge issued a scathing opinion, denouncing DEP’s failure to address EJ issues in the permit program. I’ve written on that opinion numerous times. Most recently, for details, including excerpts from the decision and links, see:

But that District Court decision was reversed on legal grounds by the Circuit Court of Appeals (the District Court’s  factual findings still stand), who set a very high burden of proof which requires demonstration of a conscious intent to discriminate, not just disparate or disproportionate impact. Read this and weep:

The EJ law not only failed to include a legal “right” as Montague claims, but it ignored all these controversial and highly relevant civil rights issues.

Montague also made misleading statements, like this:

“Children are especially vulnerable to the adverse health effects caused by pollution, and such health effects may severely limit a child’s potential for future success,” the law says.

The EJ “law’ does in fact say that, but it says it in the “Legislative Findings” not the black letter law. Legislative findings do not have the force and effect of law, they are essentially window dressing. Montague falsely clams that this language is law, when it is not.

Specifically, the law does not revise the scientific methods or regulatory standards by which DEP conducts risk assessment with respect to children’s health or developmental effects.

When a long time activist apparently doesn’t know the difference between legislative findings (which are unenforceable window dressing) and substantive enforceable black letter law, then we have either a competence problem or an honesty problem.

Same thing with the failure to understand civil rights law and what an enforceable legal “right” is, versus what thin gruel the EJ bill provides. (I’m certain that Montague is aware of the Camden District and Circuit Court decisions).

Montague made similarly misleading claims by citing the definition of “environmental or public health stressors” . While that definition is broad, it is severely limited by the law, which only applies to DEP permits and is further limited by the law’s limited scope of “cumulative impact”, which excludes small sources or air pollution below 100 tons per year.

For example, “mobile sources” of pollution are included in that definition, but DEP does not regulate and issue permits to mobile sources.

Montague plays the same misleading game when it comes to “cumulative impacts”, where he writes:

The term for such an evaluation is a “cumulative impacts assessment” of a facility. The federal Council on Environmental Quality issued guidancefor “cumulative impacts assessment” in 1997, and the federal Environmental Protection Agency issued related guidance in 2003. The NJ DEP’s Environmental Justice Advisory Council issued its own “Strategies for Addressing Cumulative Impacts in Environmental Justice Communities” in 2009. (Disclosure: I served as an advisor for that report.)

But the actual text of the law does not include or even refer to the CEQ Guidance, the EPA Guidance or the NJ EJA Report he cites.

Contrary to what Montague claims,  there are no scientific methods or standards in the law and the law does NOTHING to change the currently seriously flawed scientific and regulatory methods DEP relies on to issue permits. For a detailed explanation of that, see:

For a discussion on how the EJ law fails to address currently flawed DEP science and permit regulations, see:

There are several other misleading claims and lies by omission.

These are basic and unforgivable misinformation tactics by Montague.

Why would Maya Van Rossum, who is leading a campaign to seek a Constitutional Amendment to establish such a legal right, not have a big problem with this and instead attack me personally for exposing this damaging false claim?

3. The group Rethink NJ misleadingly wrote that DEP is “required to consider the cumulative impacts of fossil fuel” projects

Rethink NJ – the sycophants FERC-ing off the PennEast pipeline fight while ignoring the Section 401 WQC kill – broadcast an email praising the Gov and in support of the law with the following highly misleading claim (emphasis mine):

Governor Murphy just signed one of the nation’s strongest environmental justice bills into law. Under the law, the NJ Department of Environmental Protection will be required to consider the cumulative impacts of fossil fuel and other polluting projects on overburdened communities when considering permits for such projects.

I don’t know if it’s one of the nation’s strongest laws, but that statement with respect to “fossil fuel” projects is HIGHLY misleading if not downright false by omission.

Specifically, the EJ law does not apply to or authorize DEP to regulate greenhouse gas emissions. Current DEP regulations do not regulate greenhouse gas emissions.

The law does not authorize DEP to regulate or issue permits based on climate impacts, like urban heat island effects that are literally killing people living in EJ communities (i.e. adaptation).

The law does not authorize DEP to require energy conservation, energy efficiency, renewable energy, or any offsets or mitigation that might results from a facility’s lifecycle carbon footprint.

It is disgustingly misleading – basically a lie – for Rethink NJ to claim or imply that DEP EJ reviews on “fossil fuel” projects will address climate justice. For an egregious example of that, see:

4. EJ Activists praised the law in Gov. Murphy’s press release, despite the fact that the bill fails to address their concerns

See this post for a detailed discussion about how and why the law will not address the specific problems that an experienced EJ activist faced.

5. Lies by Omission – DEP “compelling public interest” Waiver

Back in 2012, the Christie DEP adopted a “waiver rule” which provided authority to DEP to waive certain regulations under certain narrow conditions.

The NJ ENGO community went totally ballistic and mounted a coordinated statewide campaign opposing the rule and blasting the Christie DEP for proposing and then adopting it.

The Christie DEP waiver rule was regulatory, not legislative, making it far legally weaker than legislation and much easier to reverse by a subsequent administration. [We note that the Murphy administration has not repealed the Christie DEP waiver rule.] The waiver rule also came with very specific restrictions in scope and with very specific conditions designed to limit abuse, protect the environment, and make any waivers transparent and subject to public comment.

Importantly, the Christie DEP waiver rule could not over-ride a DEP scientific finding or regulatory determination. DEP was prohibited from finding that a waiver request violated a DEP regulation and issue a waiver anyway, based on a competing economic or political interest. A DEP waiver could not contradict a core regulatory protection objective.

In contrast, the EJ law provides DEP the authority to waive core scientific findings and regulatory determinations that the permit application legally must be denied. DEP may waive the core objective of the law, which is a mandate that DEP deny a permit to a new facility that would cause or contribute to an unjust disproportionate burden .

Let me explain.

Under the EJ law, DEP is required to deny a permit (“shall deny”) for a new facility that: (Section 4.c.)

would, together with other environmental or public health stressors affecting the overburdened community,  cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit of analysis as determined by the department pursuant to rule, regulation, or guidance

But there is a HUGE loophole in the law.

The same section 4.c. provides an “exception” to the requirement that a permit be denied.

DEP is authorized to waive the permit denial mandate when a facility would “serve a compelling public interest”:

except that where the department determines that a new facility will serve a compelling public interest in the community where it is to be located, the department may grant a permit that imposes conditions on the construction and operation of the facility to protect public health.

Environmentalists have long opposed efforts to insert “compelling public interest” loopholes in environmental laws and regulations.

When they have lost those debates, the concept of compelling public need has been severely narrowed in scope and subject to detailed protective conditions. For example, the Highlands Act provides a loophole, but it is limited, restricted in scope, and must be publicly demonstrated and based on science, e.g.:

except in the case of a demonstrated need to protect public health and safety

DEP still must protect “public health”, but there is no such “public health” demonstration limiting the EJ law’s loophole, which can be based on economics, politics, or any other factor a creative lawyer can imagine.

[Full disclosure: I was involved in drafting the Highlands Act.]

Note how much more damaging this EJ “waiver” is than the Christie DEP waiver rule.

It is in statute and would take new legislation to reverse. There is no definition of “compelling public need” a very broad concept. That concept may specifically over-ride a DEP scientific finding and regulatory determination. There are no technical conditions to limit the scope and applicability. There is no transparency. There is no public involvement.

The EJ law provides a legal basis for corporate polluters to over-ride DEP science on very broad, virtually unlimited grounds (for example, the chemical industry claims that there is a “compelling public need” to manufacture chemicals involved in Kevlar vests that protect US troops and militarized cops).

Yet not one peep of criticism about this waiver by the EJ and ENGO advocates – not one peep – despite the fact that is guts their bill and their outrage over a far less damaging waiver by the Christie DEP.

I rest my case.

But there are more flaws and ENGO/EJ community lies and spin that follow a similar pattern

6. Lies by Omission – Cumulative Impact Standard Gutted By 100 TPY Pollution Threshold

The law creates a 100 ton per year air pollution threshold.

Pollution sources less than 100 tons per year are not regulated.

This defeats the basic concept of cumulative impacts, because the whole point is based on the fact that many small sources are the problem. But the EJ law exempts many small sources. DEP’s own prior research on hazardous air pollution and EJ in Paterson NJ demonstrates this fact.

The law is silent about how the cumulative air pollution from unregulated small sources is to be considered.

Yes the cheerleaders signed off on this “compromise” which guts the core concept of the law.

7. Crickets from press corps on toxic cleanup loophole, even from those who wrote “Dirty Little Secrets” series

WNYC and various NJ media outlets (which include the Bergen Record and NJ Spotlight who have written very favorable stories about this law) recently published an investigative journalism series titled: “Dirty Little Secrets”.

This installment in that series is especially relevant to the EJ law:

For 150 years, New Jersey manufactured chemicals and products that became familiar fixtures in homes: charcoal and lighter fluid, plastic, guns and silk. It’s the job of the state’s Department of Environmental Protection to ensure that New Jersey’s industrial past isn’t affecting the health of residents today.

But an investigation by WNYC finds most of the state’s poorest residents are living near a contaminated site with no plan in place to clean it up. And it’s not entirely clear whether anybody even knows with certainty what the risks are.

The health of NJ’s poorest will continue to be put at risk, they will continue to not know the risks, and there is no plan to reduce those risks, all because the EJ law explicitly exempts toxic site cleanups.

First of all, it does not apply to over 100 federal Superfund sites and several thousands federal RCRA toxic sites, many of which are worse than Superfund sites (e.g. Dupont Pompton Lakes).

Second, it exempts NJ DEP site cleanups conducted under NJ state law, see the definition of “permit” on page 3:

except that “permit” shall not include any authorization or approval necessary to perform a remediation, as defined pursuant to section 23 of P.L.1993, c.139 (C.58:10B-1

Now, why aren’t those news outlets who were so concerned about NJ’s poorest being exposed to toxic site risks not criticizing this law for this egregious unjust loophole, and instead praising the law?

Ironically, the NJ toxic site cleanup “Site Remediation Reform Act” law – that privatized the cleanup program – was the first law to actually address EJ, way back in 2009, with this provision, which DEP has failed to enforce for 11 years

b. The department shall perform additional review of any document, or shall review the performance of a remediation, if:

[(1) – (2)]

(3) the contaminated site is located in a low-income community of color that has a higher density of contaminated sites and  permitted discharges with the potential for increased health and environmental impacts, as compared to other communities; (Section 21, Site Remediation Reform Act)

So, not only is the EJ law seriously flawed, it was not even the first NJ law to apply to EJ and disproportionate and disparate impacts.

DEP has failed to enforce the 2009 law with respect to EJ, so what makes anyone think they would aggressively enforce a far broader law, using the same regulatory tools?

That failed 2009 law was exposed by the media’s “Dirty Little Secrets” series, and NJ reporters and the EJ cheerleaders – that’s you Anna Baptista, who was quoted in the above story – know all about it.

Yet why not one word of criticism about this egregious loophole? Instead we hear cheerleading for a “groundbreaking law” and “national; model”.

Like I said, “shame on them”.

[End Note: I want to particularly target Dave Pringle in this post, for 2 reasons: 1) he was probably the lead lobbyist on the bill; and 2) after refusing to engage any of my criticism, he basically called me a racist by writing this:

Finally, a shout out to all on this list (not created by me, and a very interesting mix I might add, although very white in contrast to the group that was lead in passing the bill) that helped get this bill done.

Dave is the one who squandered the political opportunity created by the BLM movement. He is the one who sold out and compromised the black community. I had nothing to do with any of that.

I’ve written about and criticized many of the Newark EJ advocates Dave works with; Amy Goldsmith, Kim Gaddy, Anna Baptista, and ICC as basically incompetent and corrupt machine tools.

I’ve linked to the work of others who criticize Booker and the Essex County and Newark politicians as perfect examples of what Glen Ford calls “the Black Misleadership Class”.

I’ve noted my prior work with South Jersey EJA, including Roy Jones and Olga Palmar. I really don’t need to establish any policy chops or street credibility on these issues.

With respect to the complex issues of race and class, although I am a strong support of BLM, I come down on the side of Adolph Reed, who critiques the effects and implications of identity politics in favor of more universal class based appeals.

I’ve written extensively about all this for many years.

I’ve never heard or read anything from Dave Pringle on any of this. It’s all intellectually over his head. Dave is a lightweight, with little credibility, except among the misguided ones he works with that look to him for leadership.

To avoid exposing all that, Dave plays the race card and calls me a racist. What a fucking little scumbag.

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Western Wildfires Echo Dust Bowl

September 19th, 2020 No comments

“Blown Out, Baked Out, and Broke”

Nowhere left to run to

Will Climate Chaos Drive Public Support of a Green New Deal?

Dust Bowl refugees - with Climate Change, there's nowhere left to run to.

Dust Bowl refugees – with Climate Change, there’s nowhere left to run to.

In May of 1934, dust storms from the Great Plains blew all the way across the country, with dust so thick that the street lights in Manhattan turned on in the middle of the day (UGA Co-Operative Extension):

dust storms of mid-May, 1934 …  blew fine dust all the way from the panhandle of Oklahoma to New York City and Washington DC.  The amount of dust was so large that it caused streetlights in Manhattan (New York,  not Kansas) to come on in the middle of the day, and views from the Empire State Building looked like soup so thick that observers could barely see the ground because of the dust in the air.

The following year, in March of 1935, on the same day the FDR administration was testifying before Congress seeking funding for dust bowl conservation programs, another huge dust storm hit Washington DC: (from the Washington Post, “Black Blizard Blankets the National Mall”):

Creeping halfway across the Nation in a murky cloud extending 10,000 feet into the sky, the great dust storm of the Southwest and Midwest invaded the East yesterday, bringing grime and discomfort on the first day of spring.

Even as the Administration determined upon a combined drive by seven government agencies to fasten the Midwest’s rich farm soil against the destructive dust storms, the swirling particles of earth from Kansas, Oklahoma and Texas sifted into the District and dirtied the windows of Federal Buildings.

For superb contemporaneous historical accounts of the Dust Bowl and Mississippi River flooding, watch these classic documentaries by FDR’s Resettlement Administration, a short lived but important New Deal Agency and the Farm Security Administration:

Farmers were “Blown Out, Baked Out, and Broke“.

We left the mountains and the hills slashed and burned – and moved on.

I can’t help but hear echoes in the current climate change driven, clearcut logging, and drought induced wildfires and smoke now ravaging the west coast.

Will that catastrophe – coupled with hurricanes, floods and other extreme weather AKA “climate chaos” – drive decisive public support for a Green New Deal?

Rainbow over the Taos Plateau (9/14/20)

Rainbow over the Taos Plateau (9/14/20)

I wrote about all that 8 years ago, in the wake of Superstorm Sandy’s devastation,  in a post titled:

I strongly urge folks to read that, so will provide just this short excerpt here, from Donald Worster’s classic book, Dust Bowl: The Southern Plains in the 1930’s.:

Some environmental catastrophe’s are nature’s work, others are the slowly accumulating effects of ignorance or poverty. The Dust Bowl, in contrast, was the inevitable outcome of a culture that deliberately, self-consciously, set itself the task of dominating and exploiting the land for all it was worth.

The Dust Bowl came into being during the 1930’s, … the age of the Great Depression. Coincidence, some might say, that the two traumas should come at the same time. Few who have written on either affair have noticed any connection between them. My argument, however, is that there was in fact a close link between the Dust Bowl and the Depression – that the same society produced them both, and for similar reasons. Both events revealed fundamental weaknesses in the tradtional culture of America, the one in ecological terms, the other in economic. Both offered a reason, and an opportunity, for substantial reform of that culture.

History may not repeat itself, but it sure does echo.

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NJ Gov. Murphy Signs Flawed Environmental Justice Bill Into Law

September 18th, 2020 No comments

We Explore an EJ Activist’s Experience to Show How The Flawed Bill Will Not Work

Waiver, Loopholes & Exemptions Gut Environmental Justice Impacts

Cruel Manipulation, False Hope, Cynical Political Opportunism

[Postscript Below]

NJ Gov. Murphy signed the flawed EJ bill into law today, read his over the top press release (curiously, which does not provide a link to the bill he signed into law):

As expected, Murphy claimed national leadership for signing the nation’s so called strongest EJ bill into law.

I blame the so called EJ activists not only for being duped by Democrats and negotiating a weak, 10 year old, and gutted compromise bill at exactly the time the BLM movement was building political power, but for actively encouraging this to happen (and not just members of the Environmental Justice Advisory Council, but other Foundation funded sycophants like Amy Goldsmith, Doug O’Malley, Ed Potasnak, and the rest of the NJ green mafia that have provided cover for Gov. Murphy).

I don’t now how anyone can call a law that totally ignores the climate emergency and climate justice a national model.

I don’t know how anyone can call a law the sets a huge 100 ton per  year air pollution regulatory threshold – thereby exempting thousands of small pollution sources that poison black and poor people – a model for regulating “cumulative impacts”.

I don’t know how anyone can call a law that totally ignores an actual Camden NJ based US District Court decision regarding the DEP’s failure to enforce civil rights laws in the DEP permit process as creating new “rights” for EJ communities.

I don’t know how a law that eliminated real local control and a local veto power by surrendering all legal power to DEP as some kind of model of democratic accountability (activists typically criticize this as anti-democratic “preemption”).

I don’t know how anyone could call a law that provides no standards or mandatory content requirements for an EJ impact statement and vest total control in drafting such an Environmental Justice Impact Statement in the hand of corporate polluters as promoting science, activism, democratic accountability or justice.

I don’t know how anyone can support allowing DEP to unilaterally invoke a loophole to waive the permit denial and permit conditions of the bill – without ANY technical standards, limits, or procedural protections – and to over-ride a DEP scientific finding of actual disproportionate public health and environmental impacts on an EJ community, merely by finding a “compelling public need” for the polluting project.

I’ve written about the flaws of the bill many times and explained how and why it won’t work. So today, instead of repeating that, I will illustrate the flaws by using the Governor’s own press release.

Once again, despite my prior criticism of how corrupt this co-optive practice is, Gov. Murphy quotes environmental justice activists in his press release.

I don’t want to single anyone out, but I was struck by this quote of support, both because I am not familiar with this individual (Melissa Miles) and because of what the quote hints at (i.e. “the rule-making process”): (Gov.’ press release)

“Environmental Justice communities are well aware of how race and income relate to environmental burdens,” said Melissa Miles, Executive Director, NJ Environmental Justice Alliance. “Our legislators have answered our call to action and now we must keep the voices of overburdened communities centered in the rule-making process.”

So let’s drill down on what Ms. Miles said and what it means.

1. Ms. Miles correctly notes the need for community involvement in the DEP rule-making process.

This confirms several criticism I have made, including: a) the bill can’t work without DEP regulations; b) the failure of the bill to provide any content requirements, citations of science or other regulatory standards, or numeric or narrative standards to guide and constrain DEP regulations. This Legislative abdication of their policymaking role provides DEP with wide discretion – discretion they have abused for decades with respect to EJ; c) powerful corporate polluters have captured and rigged the DEP rule-making process; d) Gov. Murphy’s Executive Order on rule-making actually makes this capture worse and provides polluters more DEP access and procedural opportunities to intervene behind the scenes with no fingerprints, while frustrating activists and the public’s ability to influence DEP rules; and e) the complex science and legal procedures of the rule-making process are heavily biased against communities and heavily in favor of powerful corporate polluters who can hire the experts and lawyers that bend laws to their favor in DEP’s rule-making process.

Strike One.

2. A quick Google reveals that Ms. Miles was previously employed by the Ironbound Community Corp. (ICC). ICC is part of what really amounts to a Newark – Essex County machine. They go along to get along, and know how to shake the money tree. Look only at the ICC-Booker-Covanta deal that allowed the Newark garbage incinerator to continue polluting. (Isn’t it curious that all the EJ advocates quoted in the Gov.’s press release were involved with ICC?)

Strike Two.

3. But I was intrigued by her current role as ED of the NJ EJA, so I Googled that and found her (undated) appointment press announcement.

I’d like to focus on the activist “experience” and “expertise” that is touted as the basis for her hiring – not as a personal attack, but to show exactly how the flaws in the bill will actually work (I have numbered the points):

“I wasn’t born, I was grown” is Melissa’s personal tagline and speaks to her entry into environmental justice advocacy, which was the result of the political and popular education she received from community organizers at ICC. As a Newark resident Melissa was encouraged to testify at hearings on (1) the clean-up of the Passaic River, the site of the world’s largest concentration of dioxin. She did (2) truck counts, (3) air monitoring and (4) community mapping with (5) her children in a double stroller. She was also part of the Community Advisory Board and represented the community at trainings on (6) climate justice and (7) disaster preparedness workshops before she was even fully invested in the cause. “When I became active in the struggle it was because others asked me to. It was when my son got (8) asthma and I knew that (9) pollution was the cause that I became an (10) activist.

So let’s drill down on the specifics of Ms. Miles’ wonderful experiences:

(1) – the Passaic River toxic site cleanup and dioxin are correctly noted as important.

But the bill exempts all toxic site cleanups from the environmental justice impact statement and cumulate impact reviews. (Besides, the Passaic River cleanup was a federal Superfund case and decisions were made by EPA. The NJ EJ State law does not apply to federal Superfund or EPA decisions. Worse, ICC was NOT a leader – they supported EPA’s partial cleanup & capping plan, which was opposed by other environmental groups for failure to fully cleanup the river.)

(2) – Ms. Miles has experience conducting truck counts, which are an important indicator of mobile source air pollution.

But the bill does not apply to mobil source air pollution. Equally bad, local port pollution from airplanes, ships, and diesel powered trains is not regulated by the bill.

Yes, mobile sources are in the bill’s definition of “pollution”, but the bill is limited to DEP permits. DEP does NOT issue permits to mobile sources. If anyone thinks that DEP is legally able to hold an industrial polluter accountable for mobile source pollution, I’ve got some land in Florida for sale. This is why the bill is unworkable.

In order to be workable, as I’ve written, the bill needed to amend the underlying laws that authorize DEP permits, e.g. the NJ Air Pollution Control Act, and to mandate the DEP revise the technical basis for their various permit review methods to account for cumulative impacts, including from mobile sources (e.g. risk assessment, air quality monitoring and modeling, and State of the Art determinations.).

But the bill did NOT do that. In fact, it does the opposite: the bill does once substantively cite a specific provision of the NJ Air Pollution Control Act (in Section 4.f. on page 8) but it does so to PROTECT THE POLLUTER, NOT THE PUBLIC by allowing the polluter to continue polluting during DEP’s renewal of permits and invoke a “permit shield” provision. What this will do is allow polluters to continue to operate, in the rare event that DEP imposes tough “conditions” on permit renewal, while the polluter challenges those provisions administratively and later in court.

(this follows a pattern in the bill – the only precise language and clear standards used are there to protect the polluters)

3) – Ms. Miles experience illustrates the need for ambient air monitoring – in the community and at the fence-line of industrial pollution sources.

But the bill: a) does not include a mandate that DEP beef up its tiny air quality monitoring network in EJ communities; b) does not change the way DEP regulates air pollution sources to mandate that they conduct fence-line and community air quality monitoring; c) does not change the lax and ineffective way that DEP allows polluters to conduct their own “air quality modeling” and “risk assessment” to analyze the health impacts on local EJ communities; and d) ignores the findings of prior DEP research in Paterson NJ to monitor local small sources of hazardous air pollutants and assess the cumulative impacts of those pollution sources.

(4) – Ms. Miles’ experience shows that community mapping is important to understanding the implications of pollution sources and environmental justice.

But the bill does nothing – in terms of specific standards, resources, or mandates –  to require DEP to map the relevant public health and pollution characteristics of EJ communities. Polluters are not required to map these impacts and characteristics in “Environmental Justice Impact Statements” or to illustrate them to communities or facilitate DEP regulation.

(5) –  Ms. Miles makes clear that children are important. They are more sensitive to pollution. The location of children’s day care centers and schools are often located very close to pollution sources, creating “hot spots”. Scientists classify children as “vulnerable populations” and “sensitive receptors”.

But the bill does not define, provide standards, or require consideration of children or other “sensitive receptors” in how DEP conducts risk assessment or how a polluter prepares an “Environmental Justice Impact Statement”. The bill does not address local “hot spots” or specify any standards for regulating the distance between a sensitive receptor and a pollution source.

(6) – Ms. Miles highlights climate justice as critically important in principle.

But the bill totally ignores climate, i.e. greenhouse gas emissions are not regulated by the bill or part of the DEP Environmental Justice Impact Statement or cumulative impact reviews. The DEP may not deny permits or impose conditions to mandate reductions in GHG emissions, or mitigation of GHG emissions, or adaptation to climate change. The DEP may not require energy conservation, energy efficiency or renewable energy in permits – even basic stuff like solar and planting trees. THIS IS THE OPPOSITE OF CLIMATE JUSTICE.

(7) – Ms. Miles’ experience includes disaster preparedness and is correctly mentioned as important to EJ communities.

But the bill does not apply to NJ’s Disaster Planning and Preparedness program. The bill does not apply to NJ DEP’s “Toxic Catastrophe Prevention Act” program (see “The Fatal Fifteen” for the implications of that). NJ does not have a climate disaster preparedness program. EJ community will remain at risk. The bill does NOTHING to reduce those risks.

(8) – (9) – Ms. Miles was motivated to become an activists because her child suffered from asthma. Especially in children and the elderly, Miles correctly noted asthma as a serious problem in EJ communities. Climate change will make current urban air quality far worse. Current poor urban air quality is due primarily to ground level ozone, although small particulates (PM2.5) are a big problem too.

But the bill ignores the major causes of poor local air quality: climate change warming; cumulate impacts of small industrial sources (less than 100 ton per year emission threshold in the bill); mobile sources (cars and trucks) and other “ozone precursors”  and major sources like airplanes, ships, and trains. It will do nothing to reduce the impacts and risks of asthma and other respiratory and cardio-pulmonary diseases associated with current levels of pollution. And don’t forget that huge loophole resulting from the 100 ton per year threshold. Just look at the DEP’s Paterson NJ cumulative risk study to see the impacts of many small sources, including “hot spots”.

(10) – Miles’ experience shows the importance of activism.

But the bill erects barriers to and frustrates activism: a) the environmental justice impact statement will be prepared by consultants for the polluters, not the community; b) the complex legal and scientific nature of the DEP permit process is heavily biased against and almost impervious to activism; c) local veto power, where activist could have the most influence and hold local political leaders democratically accountable, was deleted; and d) all final decisions are controlled tightly by the DEP out of Trenton, where corporate polluters, political, and economic considerations hold sway and overwhelm any local activist pressure.

Street heat has been neutered by this law.

Strike 3.

The bill is an activists’ nightmare, not a national model.

Postscript:

The entire EJ debate is now playing on the corporate technocrats’ field, using DEP’s flawed regulatory tools (which remain unchanged by this law) and DEP’s formal regulatory procedures, which neuter public involvement.

The corporate consultants will bamboozle local activists and DEP with “sounds like science” environmental justice impact statements (I’ve suggested people consider NJ Transit’s impact statement as a model of that).

In contrast, just think how much more leverage activists would have over DEP if the EJ impact statement had to meet specific scientific and technical standards in the legislation. If the EJ impact statement was written by a consultant that was paid by and reported to the community. If the community was provided technical assistance resources. If DEP were forced to apply the precautionary principle and base decisions on environmental justice impact statements, risk assessments, and air quality modeling procedures that were written by EJ groups and their scientific consultants. If DEP were forced to defend every aspect of their permit reviews to the community in the community.

But the bill does NONE of that. It does the opposite.

The activists will be disempowered by the process – and their one effective tool, a local veto power, was stripped from a prior version of the bill and is NOT in the bill the Gov. signed into law.

In contrast, just think how much more power local EJ activists would have if their local elected officials had veto power.

Activists will be unable to make Civil Rights Law disproportionate burden as discrimination arguments. Activists will be unable to argue “structural racism” arguments.

The burden of proof to support EJ discrimination under federal law under the federal Appellate Court’s interpretation is far too great, literally requiring concrete evidence of an intent to discriminate.

In contrast, just think if NJ civil rights law merely requiring a showing of disproportionate burden as presumptive proof of discrimination.

Activists will be unable to make climate justice arguments.

But corporate lawyers and lobbyists are given a platform to make economic and “compelling public need” arguments – which they’ve never had before under NJ environmental laws – to leverage DEP into issuing waivers.

Corporate lobbyists have always made the economic development and jobs arguments to undermine public health and environmental protections, but they didn’t have the law on their side. This bill now puts the law on their side.

And DEP will be insulated from activists concerns, while being subject to top down political edicts from the Gov.’s office or influential legislators who are beholden to corporate interests.

The law makes the status quo WORSE!

Heckofajob NJEJAC, ICC, CWA, Environment NJ, NJ LCV and the rest of the foundation funded tools who supported this law.

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Longtime EJ Activist Backs Flawed EJ Bill In Truthout Op-Ed

September 17th, 2020 No comments

The NJ EJ bill does not create any “right” to a “clean environment”

Truthout Analysis Gets It Badly Wrong

Political Set Up Piece For Gov. Murphy’s Bill Signing Tomorrow

Peter Montague (L) consults with Nicky Sheets, at DEP briefing (12/9/09)

Peter Montague (L) consults with Nicky Sheats, at DEP briefing (12/2/09)

My friend and longtime NJ based scientist and environmental justice activist Peter Montague wrote an opinion piece today at Truthout, supporting the seriously flawed EJ bill now on NJ Gov. Murpy’s desk, see:

I met Mr. Montague in the late 1980’s when I was a DEP policy analyst and when he and Madalyn Hoffman (founder of NJ Green Party) led the charge against garbage incinerators.

Montague coined the phrase “a billion bullets to the heads of Newarks’ kids” to describe the lead emissions from the Newark garbage incinerator, a dinosaur highly polluting facility that would be exempt from the EJ bill he is now strangely supporting. I took the photo above at a December 2, 2009 DEP EJ briefing.

So, it’s really sad that I have to call bullshit on his crap.

According to Montague, Gov. Murphy will sign the bill tomorrow – no doubt surrounded by his sycophants in the NJ ENGO and EJ communities (but will they be quoted in the Gov.’s press release, after I called out that abuse?) It’s not surprising that Gov. Murphy would sign the bill on a Friday (in late afternoon?) as a means of minimizing news coverage. The bill is opposed by the NJ business community and Wall Street Murphy doesn’t want to poke a finger in the eye of his corporate friends.

As I’ve been writing critical analyses of the bill for weeks and urging NJ EJ activist to withdraw their support and urge the Gov. to veto the bill, obviously I disagree with Mr. Montague.

But this goes way beyond a good faith disagreement over the merits and politics of the compromise bill.

The headline and the text of Montague’s analysis are factually in error. The NJ bill does not make or create any “right” to a “clean environment”. This is just totally wrong.

Worse, the bill totally ignores an actual directly on point US District Court decision that analyzed the NJ DEP EJ program with respect to DEP permitting, see: South Camden Citizens v. NJ Dept. of Environ., 145 F. Supp. 2d 446 (D.N.J. 2001).

I recently wrote about how that decision relates to the EJ bill, see:

This bill is NOT a national model, as Montague suggests, but is a national disgrace and sellout.

So, here’s the note I sent to Montague. I’ll let you know if he responds:

[Update – I just got this rapid and cryptic reply:

Thanks, Bill.  You may be right. –Peter.

I responded by asking Montague to correct or ask Truthout to take down the piece. He declined to do so. ~~~ end update]

Hi Peter – I’ve been writing for weeks now criticizing, in detail, the flaws in the EJ bill, so I was very disappointed by your piece today. There are so many problems with it:

1. The headline and your text talk about the bill establishing a “right”. That is totally false. You cite legislative findings which have no legal effect. Worse, in terms of civil rights law, the EJ bill ignores the Camden US District Court case on the civil rights issues.

2. the bill ignores climate, greenhouse gas emissions, and adaptation. That alone is a fatal flaw. Fatal, literally.

3. the bill ignores actual DEP permit regulations, Technical manuals, risk assessment methods, Guidance, prior science (Paterson cumulative impacts) etc

4. the local veto power was stripped

5. the 100 TPY air emissions threshold contradicts the entire concept of cumulative impact

6. there are a bunch of loopholes.

7. the compelling public need loophole arguably weakens all environmental laws

Here are some links to my analysis, if you are interested. I’m calling on activist to withdraw support and ask Murphy to veto the bill and start over.

http://www.wolfenotes.com/2020/09/structural-racism-works-for-the-same-reasons-that-the-environmental-justice-bill-will-fail/

http://www.wolfenotes.com/2020/09/nj-environmental-justice-bill-on-gov-murphys-desk-is-seriously-flawed-and-will-not-work/

Wolfe

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Advocates Urged To Withdraw Support For Flawed Environmental Justice Bill Now On NJ Gov. Murphy’s Desk

September 15th, 2020 No comments

Calling On Gov. Murphy To Veto The Bill

As I’ve written many times, the “environmental justice” bill that has passed both houses of the NJ legislature and is now on Gov. Murphy’s desk  (read it (S 232 [2R]) is seriously flawed.

It also totally ignores the climate emergency (e.g. there is no regulation of greenhouse gas emissions, no requirements to quantify a project’s lifecycle carbon footprint, no GHG emissions offsets, no energy efficiency or renewable energy standards, and no climate mitigation requirements to address urban heat island and increased air pollution etc):

Given these fatal flaws and failure to even address the climate emergency, I am calling on the NJ EJ advocates and environmental groups that have supported the bill to withdraw your support and urge Gov. Murphy to veto the bill.

The bill is not an acceptable compromise.

I understand that a 12th hour U-Turn is an extraordinarily heavy lift, but your credibility is on the line and we will name names.

Screen Shot 2020-02-27 at 3.45.31 PM

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