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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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NJ Spotlight Misleads Readers About Benefits of NJ Electric Vehicle Program

September 15th, 2020 No comments

Comparison Of NJ’s EV Program With ALA Report Amounts To Journalistic Malpractice

Today’s NJ Spotlight story on a Report by the American Lung Association (ALA) is highly misleading and grossly exaggerates the benefits of NJ’s electric vehicle program.

The ALA Report modeled the economic, public health, air quality, and climate benefits of conversion of the transportation sector to 100% electric vehicles powered by 100% renewable energy. The “transportation sector” is defined narrowly as gasoline and diesel powered on road vehicles, with no consideration of pollution from aircraft, rail, and ships and off road vehicles.

Basically, NJ Spotlight Reporter Tom Johnson used the ALA Report to tout the benefits of NJ’s electric vehicle program.

But Mr. Johnson compared apples to oranges and in doing so grossly exaggerated the benefits of NJ’s EV program. Johnson wrote:

NJ pitches in with zero-emission vehicles

New Jersey is one state that has embraced that approach, adopting a comprehensive program to electrify light-duty vehicles under a law approved in 2004. What’s more, New Jersey should have more than 300,000 zero-emission vehicles on the road by 2025, as well as charging infrastructure around the state to ease range anxiety among drivers that their vehicles can be refueled. It also aims to have 100% of its electricity come from clean-energy sources by mid-century.

If such strategies are followed nationwide, the study found it could have a significant impact on public heath, as well as reducing air pollutants in a state widely recognized as a transportation corridor.

The “NJ pitches in” section follows the lead 4 paragraphs of the Spotlight story, which summarize the ALA Report. The ALA Report includes estimates of various benefits that would accrue to NJ. Clearly, the intent is to compare NJ’s EV program with the ALA Report. That is highly misleading.

First of all, NJ has not embraced that approach. The phrase “that approach” clearly means the ALA Report’s electrification transition.

There is a huge difference between the ALA “approach” as presented in the ALA Report and the NJ EV program. See below.

Second, the phrase “if such strategies are followed” is highly misleading. This is because the phrase is contained under the header “NJ pitches in” that describes NJ’e EV program and directly follows a paragraph about NJ’s EV program. Thus, the phrase clearly implies that the “strategies” are NJ’s strategies and that those strategies will produce the various benefits estimated in the ALA Report.

That is so false and misleading it amounts to journalistic malpractice. Tom Johnson is an experienced reporter who has a basic facility with data. He could not do this inadvertently, because he clearly knows the difference between the NJ EV program and the ALA Report’s assumptions.

Here’s why the story was so misleading  (and I’ll keep this short).

1. The ALA Report assumes that 100% of the on road vehicle fleet is converted to electric vehicles which are powered by non-carbon based energy (renewables).

The ALA Report methodology is found on page 17. Here is the core ALA assumption:

The electrification scenario was developed by the American Lung Association to illustrate the benefits possible if local, state and federal actions were to meaningfully prioritize the transition away from the combustion of fuels. This ALA electrification scenario is scoped to achieve full transition to zero- emission passenger vehicle sales by 2040. It also includes penetrations of a range of electried heavy- duty vehicles on pathways to fully zero-emission technologies over the coming decades.

According to the ALA Report  “Full transition” means that: a) all passenger vehicles actually operating on the road would be 100% zero emission (electric) vehicles; b) those vehicles would replace – 1 for 1 – polluting gas and diesel vehicles; and c) the source of power would be zero carbon (renewable) energy (I was not able to find quantification in the ALA Report the phrase “penetration of a range of heavy-duty vehicles” so I limited comparison of ALA to NJ EV to the passenger vehicle fleet)).

All assumptions are not only very aggressive (many would argue infeasible and unrealistic) but are far more aggressive and far broader in scope than NJ’s EV program.

While the ALA Report’s 100% renewable power assumption is consistent with **NJ‘s Energy Master Plan goals, the NJ goal is timed for the year 2050, while the ALA Report assumes benefits begin far earlier than the year 2050, so again we have an apples to oranges comparison that is highly misleading. (check out the charts in the ALA report to confirm this)

** Correction – A knowledgeable reader corrects my error, which only strengthens my point:

NJ energy master plan does not call for 100% renewable by 2050 – it’s 100% clean energy that includes , incineration , nuclear , bio gas , carbon Capture sequestration, bio mass , mitigation  etc

2. NJ’s EV program is not even close to the 100% fleet conversion to ZEV’s assumed by the ALA Report.

I won’t rehash all that here. For details of NJ’s EV program and the various benefits modeled in the ALA Report, see:

NJ Spotlight’s story is again highly misleading. Spotlight reports that:

New Jersey should have more than 300,000 zero-emission vehicles on the road by 2025

Keep in mind that the context for this statement is the ALA Report, which assumed a 100% EV fleet (passenger cars, trucks, buses).

In contrast, NJ’s 300,000 EV vehicle goal (it’s actually 330,000) is less than 10% of of NJ’s current fleet of passenger vehicles, which is not even close to the 100% of the entire on road transportation fleet (car, trucks, buses) assumed in the ALA Report.

3. Environmental Justice Benefits

To their credit, NJ Spotlight mentions environmental justice:

The study follows up on an earlier report this year from the association that found nearly half of Americans are living with and breathing unhealthy air, a problem linked to the transportation sector, a leading contributor to both climate change and air pollution. More often than not, those impacts are likely to fall on counities with people of color.

But, in light of the grossly exaggerated benefits of NJ’e EV program, this again misleads NJ’s EJ communities.

Additionally, NJ’s EJ communities are impacted by huge air pollution from NJ ports (from airplanes, ships, and rail). These are significant pollution sources which are not even included in the ALA Report, a significant fact NJ Spotlight fails to report.

Worse, NJ Spotlight fails to note the larger context, i.e. the fact that an seriously flawed environmental justice bill is now on Gov. Murphy’s desk.

That EJ bill totally IGNORES exactly the impacts and benefits that are quantified in the ALA Report, i.e. the pending EJ bill ignores mobile source pollution, ignores greenhouse gas emissions. As I wrote:

4. HUGE Benefits Resulting From the Social Cost of Carbon Are Ignored

The ALA Report quantifies benefits that result from the Social Cost of Carbon.

These benefits are HUGE and EXCEED the health benefits: (from the ALA Report)

The widespread transition to zero-emission transportation technologies could produce emission reductions in 2050 that could add up to $72 billion in avoided health harms, saving approximately 6,300 lives and avoiding more than 93,000 asthma a acks and 416,000 lost work days annually due to signi cant reductions in transportation-related pollution.

In addition to the health bene ts noted above, the bene ts to our environment in the form of avoided climate change impacts, as expressed as the Social Cost of Carbon, could surpass $113 billion in 2050 as the transportation systems combust far less fuel and our power system comes to rely on cleaner, non- combustion renewable energy. This value reflects a range of negative consequences to health, agricultural productivity, flood risk and other adverse impacts generated by carbon emissions in the form of global climate change.

Yet, NJ Spotlight reports only the health benefits and ignores the larger benefits associated with “Social Cost of Carbon”. NJ Spotlight reported:

In New Jersey, the changeover could avoid $1.9 billion in health costs, 169 premature deaths and 2,306 asthma attacks, the study projected. Nationwide, the benefits of switching to a cleaner transportation sector could avoid 6,300 premature deaths, more than 93,000 asthma attacks and $72 billion in additional health care costs based on pollution reductions, according to the study.

Why would NJ Spotlight ignore the LARGER SCC benefits?

I have long criticized NJ Spotlight’s failure to cover the issues related to the Social Cost of Carbon (a news blackout that is just what the corporate polluters want because it hides a $2.3 BILLION annual subsidy).

Perhaps failures to mention the SCC could be because I previously exposed the fact that the NJ EV program would have negligible – if any – greenhouse gas emission reduction benefits.  It would be a real stretch to report on SCC benefits when NJ’s EV program has virtually no GHG emissions reductions.

And once again, we have an apples to oranges misleading presentation, because the NJ economic benefits that NJ Spotlight reports result come from the ALA Report and its assumptions, not the actual far smaller NJ EV program. The NJ program will not produce anywhere near the benefits the ALA Report projects.

A reader would conclude the opposite: i.e. that the NJ EV program mentioned favorably in the story produces these huge benefits, when they don’t.

Look, I support a strong EV program, but, if we’re going to really address the climate emergency, we need to begin with an honest assessment of reality.

All in all, NJ Spotlight is engaged in cheerleading and not journalism – in fact, this story is gross journalistic malpractice.

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Structural Racism “Works” For the Same Reasons That The Environmental Justice Bill Will Fail

September 12th, 2020 No comments

Race is Built Into the Institutions and Algorithms of Power

The EJ Bill Ignores The Mechanisms of DEP Regulations and Permits

My prior post highlighted 3 basic structural flaws in the environmental justice legislation (S 232 [2R]) now on Gov. Murphy’s desk.

Today’s post expands upon that analysis by relating it to the larger debate about racism and then laying out other more technical flaws.

I)  Institutional Racism Operates By Injecting Race Into Governing Rules

One of the most important ideas to emerge from the Black Live Matter movement is a focus on “institutional racism”, also called “structural racism” and “systemic racism”. That reality exposes the fact that racism operates at multiple levels and is structurally linked to power. Racism is far more insidious, powerful, and destructive than merely the individual level Archie Bunker style prejudice and what is currently described as individual’s “implicit bias”.

Like Occupy Wall Street’s use of the “1`%” metaphor to provide the language and concepts to open up political space to discuss income and wealth inequality, BLM’s focus on “institutional racism” has opened up similar space to analyze and discuss racism.

I attribute a catalyst for the current focus on institutional racism to Michele Alexander’s brilliant groundbreaking 2010 book “The New Jim Crow”.

That book exposed in detail exactly how racism is built into the criminal justice system at every level, from the school-to-prison pipeline, to police deployments & tactics, to criminal laws, to sentencing formulas, to prosecution, and to prisons.

(the work of author Alex Vitale’s “The End of Policing” expands Alexander’s focus on race and slave patrols in the origin of police to include the history of using police as instruments of social control and class warfare).

[Full Disclosure: I’m on the side of universal/class in the “race/identity versus class/universal” debates. Penn Professor Adolph Reed makes the case in his distinction between racial democracy and social democracy – listen to today’s interview!]

Similarly, Ta-Nehisi Coates’ work “The Case For Reparations deconstructs institutional racism, particularly in showing how “redlining” simultaneously created segregated ghettos, denied black people opportunity, and erected barriers to black social mobility and wealth formation. This institutional racism operated by injecting racism into the quantitative formulas and methods (algorithms) for how banks and insurance companies analyzed financial risks and allocated capital investment resources, as well as how government designed social programs and allocated resources (there were other equally racist rule changes, including private property restrictive covenants and local exclusionary zoning)

Both Alexander and Coates expose how racism was built into the algorithms of power and how racism actually works in society.

Feminists also have shown how sexism is built into daily life. My favorite illustration is how even auto safety is sexist, as the engineering, safety and design strategies were all based on the male body. This fact results in smaller bodied women suffering far more serious crash injuries than would be the case if things like seatbelts and auto safety design were based on the female anatomy.

The underlying similarity in all  these examples in how institutional racism works is how racism is built into the algorithms of power.

Racism “works” so powerfully because it is built into the Operating Systems and algorithms of power.

In order to dismantle these racist systems, the underlying algorithms must change.

Which takes me to the pending environmental justice legislation.

II)  EJ Bill Fails To Change The Rules of the Regulatory Game

As I previously wrote, that bill completely fails to address DEP’s regulatory algorithms – things like how DEP conducts “risk assessment” and local air quality impacts.

Just like the redlining banks and insurance companies injected race into their financial risk assessment, and the cops inject race into deciding which neighborhoods to target and which groups to stop & frisk and profile, and the car companies based auto safety on sexism, so too does DEP inject race (if only by neglect) into their regulations and permit decisions.

In order to provide environmental justice, environmental laws, DEP regulations, Technical Manuals, Guidance Documents, permit review methods, public participation processes, and permit decision criteria and standards must be changed.

Again, the pending EJ bill fails to do this, thereby giving DEP a pass to continue the status quo business as usual.

III)   Details Matter – Some significant positives

Much, but not all, of my prior analyses and criticism remain valid, see:

However, this post shall supercede prior posts that are in conflict, because the bill has been amended since those posts were written.

On the positive side, the bill would provide authority for DEP to consider cumulative impacts, deny permits for certain new major sources of pollution, and impose conditions on renewals of permits for existing facilities, upon a finding that there are or would be unacceptable disproportionate public health stressors or environmental impacts in certain already overburdened “environmental justice communities that meet the criteria in the bill for that designation.

However, there are several problems with the implementation and enforcement of this authority which narrow it and render it unworkable, such that it would be rarely – if ever – invoked, which I discussed yesterday and will  add details today.

Another positive is that the final version of the bill also narrowed a huge loophole I previously criticized regarding existing sources of pollution and renewal of permits for those facilities. However, DEP is not authorized to deny those permits, but merely impose conditions, as I discuss below.

The DEP rulemaking delay issue I flagged also has been addressed, although imperfectly.

IV)  Huge Negatives Outweigh Positives and Argue For Governor Murphy To Veto

The negatives far outweigh the positives, which leads me to recommend that Gov. Murphy veto the bill, as the flaws are too major to be remedied via a conditional veto (CV) and even if they were, the legislature is very unlikely to concur with a CV that essentially re-writes the legislation.

Here are the major technical problems with the bill:

1. Contradictions On Cumulative Impacts

The bill, for the first time, would force DEP to consider “adverse cumulative environmental or public health stressors in the overburdened community”.

That is a huge step forward, but other loopholes in the bill completely gut this cumulative impact standard.

The whole concept of “cumulative impacts” is based upon the fact that while a single small source of pollution may have negligible adverse impacts, when multiple sources are considered, then the cumulative pollution from these many small sources may be harmful.

Additionally, the DEP’s Paterson NJ air toxics/EJ study addressed cumulative risk. That study found that small pollution sources located nearby sensitive receptors (like schools) could create dangerous “hot spots”. That study also confirmed that the cumulative impact of many small sources can create unacceptable risks.

But the bill would gut this cumulative impact standard while ignoring the whole concept of “hot spots”.

The bill has a 100 ton per year air pollution emission threshold. Smaller pollution sources (i.e. the emit less than 100 tons) would not be regulated by the cumulative impacts standard. This 100 TPY threshold would exempt numerous small sources that, combined, have unacceptable cumulative impacts as well as potential “hot spot” risks.

Additionally, it is not clear that even major sources above the 100 TPY threshold that are regulated would have to consider the cumulative impacts of the smaller sources.

That 100 TPY exemption threshold contradicts the fundamental concept of cumulative impacts and renders the bill ineffective and absurd on its face.

2. Compelling public need waiver

The bill would allow DEP to waive the permit denial or permit condition requirements of the bill – regardless of public health or environmental impacts – if DEP finds that the project/permit in question would satisfy a “compelling public need”, i.e. based on a DEP finding that the “facility will serve a compelling public interest in the community where it is to be located”

It is arguable that this broad and virtually unconditional waiver actually weakens current environmental laws, which do NOT authorize DEP to waive permit requirements to satisfy any “compelling public need”.

Accordingly, DEP could use this bill’s compelling public need waiver authority to issue various environmental permits that they would have denied under current law.

Additionally, the whole concept of a “compelling public need” waiver is deeply troubling. It will operate in direct contradiction of and defeat the stated primary objective of the legislation to reduce the siting of polluting facilities in disproportionately overburdened EJ communities.

Here’s why:

a) There is a compelling public need to manage waste – including hazardous waste. Therefore, DEP will continue to issue and renew permits for garbage incinerators – and even worse – hazardous waste management treatment, storage and disposal facilities in EJ communities

b) There is a compelling public need to treat domestic sewage and industrial wastewater. There fore DEP will continue to issue and renew sewage treatment plants and industrial wastewater treatment operations in EJ communities.

c) There is a compelling public need to compost and recycle wastes. Therefore, DEP will continue to issue and renew permits for scrap metal, junkyards, compost, and recycling facilities in EJ communities.

d) There is a compelling public need to ship and transfer garbage. Therefore, DEP will continue to issue and renew permits for garbage transfer stations in EJ communities.

e) The Chemical industry already argues and will now be given a legal basis to argue that there is a compelling public need to manufacture chemicals that are needed to make Kevlar vests that protect our troops and cops.

Therefore, DEP will continue to issue and renewal permits for highly polluting industrial chemical manufacturing facilities, including facilities like Khuene Chemical (and the rest of the “Fatal Fifteen”), that handle extraordinarily hazardous chemicals that could kill thousands of nearby residents.

f) There is a compelling public need to provide energy. Because the bill completely ignores climate change, greenhouse gas emissions, and energy policy, DEP will continue to issue and renew permits for major fossil fueled energy facilities, including pipelines, compressor stations, generation stations, and LNG/oil/gas storage and refining facilities in EJ communities.

g) The pharmaceutical industry will argue that there is a compelling public need to manufacture drugs and consumer products. Therefore, DEP will continue to issue and renew permits for polluting manufacturing facilities.

h) The NJ BIA, Chamber of Commerce, and trade unions already argue and now ill be given a legal basis to argue that there is a compelling public need to provide jobs and local tax ratables, especially over the next decade in a post COVID-19 depressed economy.

DEP will be pressured to accept these economic argument in virtually every EJ permit review process.

The compelling public need waiver is certain to be litigated and courts are very likely to interpret this loophole broadly – as it is written – and in a very pro-business anti-EJ/public health/environmental way. That could create a deadly statewide precedent that actually makes current conditions worse!

Just look at how the NJ Supreme Court struck down Newark’s Police Citizen Review Board subpoena power.

3. Permit Renewals

The final version of the bill narrowed a huge loophole. The bill previously exempted renewals of existing permits (and existing pollution) from the new EJ review process.

The final version has included permit renewals, but DEP power is limited with respect to renewals. DEP may not deny renewal of an existing permit, regardless of whether or not the pollution creates unacceptable impacts. DEP may only impose conditions on permit renewals. There are no specifics provided in the bill about what these conditions may be or how they are related to offsetting the pollution from the renewed permit.

Those are serious flaws that will limit DEP’s ability to protect EJ communities, who suffer disproportionate and unacceptable pollution from existing DEP permitted facilities.

4. The Bill Has Major Loopholes

  • Toxic sites are exempt. This makes no sense because there are many toxic sites – from dry cleaners and gas stations to major industry sites – and those sites significantly impact communities via toxic chemicals discharged to air, soil, and water and vapor intrusion into buildings.
  • Hospital medical waste incinerators are exempted regardless of pollution impacts. Hospital incinerators are highly polluting, because they: a) burn lots of plastic (the combustion byproducts from chlorinated plastics are highly toxic, including dioxin and furans); b) are located in dense populated areas; c) have poor combustion (e.g. they fail to maintain high temperatures and long residence times); d) ineffective pollution controls; and e) their low smoke stacks heavily pollute nearby dense populations. These incinerators should be she down immediately, not exempted from review.

(and I believe we need to go “Beyond the Green New Deal” to respond to the climate emergency)

5. Local Authority Stripped

The final version of the bill eliminated local power to block DEP permits, a strong provision that was included in the original version of the bill.

This stripped people and local governments of real power and forcing exclusive reliance on DEP decisions

We can do better than this.

The BLM activists must not be sold out or sold short.

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NJ Environmental Justice Bill On Gov. Murphy’s Desk Is Seriously Flawed And Will Not Work

September 8th, 2020 No comments

No Changes To DEP “Environmental Redlining”

Wolfe stands with EJ activists from Camden to demand Corzine Administration stop building schools for poor black kids on toxic waste sites (2008, Trenton State House press conference)

Wolfe stands with EJ activists from Camden to demand Corzine Administration stop building schools for poor black kids on toxic waste sites (2008, Trenton State House press conference)

Despite being a longtime advocate of incorporating environmental justice in DEP regulatory programs, I have written several critical posts about the proposed environmental justice bill now of Gov. Murphy’s desk (to read the final version of that bill, see S 232 [2R]).

These posts largely have focused on politics, legislative history, and broad policy issues.

There have been two conflicting versions of the bill this legislative session and both bills have been amended significantly during the course of legislative consideration.

Therefore, given my prior focus and the amendments to the bills, today I’d like to drill down on the substance of the final bill now before the Gov. and talk about what the bill would do and fail to do.

This is part one, where I lay out the major science, regulatory, and policy flaws.

I)  Current Science and Regulatory Requirements Are Ignored

At the outset, let me state the most fundamental flaw in the legislation: the bill completely ignores the current underlying scientific, technical, and regulatory bases that DEP considers in granting the air pollution permits, water pollution permits, land use permits, chemical hazards, drinking water, and toxic site cleanup requirements that are allowing the disproportionate pollution burdens to harm environmental justice communities.

Any serious EJ legislation would have to mandate that DEP change the way it regulates and issues permits.

For example, the key DEP technical and regulatory standards and grounds for issuing air pollution permits include:

  • “advances in the art of pollution control” – also known as “state of the art” or SOTA
  • risk assessment, including “acceptable risk” and how DEP considers cumulative impacts and disproportionate burdens
  • air quality modeling
  • emissions monitoring (at the stack)
  • ambient air quality monitoring (at the fence line and in the community)
  • mitigation and offsets
  • a host of legal thresholds & standards for what facilities, processes, chemicals, emissions (potential/actual/fugitive/lifecycle), ambient air quality, and the kind of impacts that are regulated

None of this is a mystery to DEP, Chairman Smith (bill sponsor), or to the environmental justice advocates who negotiated the legislation.

Similarly, a federal judge examined exactly how DEP issued permits and issued an opinion that made extremely harsh critical findings, see:

In fact, DEP conducted specific research on urban air quality, EJ, and cumulative impacts in Paterson NJ that closely examined all these air permitting issues. I criticized that effort, see:

Among the “rotten” things I found were that DEP suppressed findings of that Paterson study, regarding:

  • elevated rates of respiratory disease, especially in children
  • local industrial emission “hot spots”, located close to homes and schools
  • the community was provided a false rationale as to why Paterson was selected for the study
  • relationship to prior Camden Pilot study and Environmental Justice concerns
  • DEP suppressed consideration of cumulative impact risks presented in the draft report
  • DEP downplayed the risks to minimize public health concerns –  DEP spun the health risks to the community
  • DEP failed to release industrial emissions inventory
  • DEP sanitized Report findings of flaws in DEP air permit database and permit program
  • DEP has conducted limited to no followup source track-down investigations and air permit and enforcement to mandate emissions reductions and reduce risks

What is a mystery is how all this could have been completely ignored in the legislation.

Instead of applying the federal judge’s findings and the knowledge gained by DEP’s Paterson cumulative impact/EJ research by amending and reforming these specific technical frameworks that are the causes of the DEP regulatory failures that allow EJ communities to be unduly burdened, the bill relies on a vague, standard-less, undefined and novel “environmental justice impact statement” review process.

The bill grafts an Ill defined and novel process on a seriously flawed substantive DEP permit foundation.

It won’t work.

II)  Lack of Standards To Guide Environmental Justice Impacts Statements Invites Abuse

The “environmental justice impact statement” will be written by the polluter (permit applicant). Th EJ review process will become just another technocratic manipulative process – similar to the current “environmental impact statement” and the “regulatory impact statement” requirements that have become boilerplate and ignored, or – at best – fodder for bargaining and corrupt deal making (e.g. see the Newark Ironbound Community Corporation deal with the Covanta Newark garbage incinerator, brokered by former Newark Mayor Cory Booker.

It amounts to a corporate shakedown that ICC was involved in. The deal provided cover for DEP to renew the permit (instead of shutting it down) and allow the garbage incinerator to continue to pollute in exchange for:

Community Benefits

Environmental Program Funding: [Newark Energy Center] NEC agreed to fund a total of $7 Million Dollars in environmental programs:

  1. NEC will pay $4 Million Dollars to the Brick City Development Corporation (“BCDC”) a not-for- profit corporation headquartered in Newark. A publication about BCDC is located at: http://bcdcnewark.org/cms/wp-content/uploads/2011/04/BCDC_Overview_Flyer.pdf
  2. This $4 Million Dollars is to be used to support programs to be managed by Newark as outlined under the Program Management/Use of Funds section below.
  3. NEC will spend $3 Million Dollars in Newark to retrofit and/or replace older, less efficient, oil burning boilers with cleaner, more efficient, natural gas fired boilers. Commercial and residential structures that use more than 20,000 gallons of fuel oil per year are eligible. NEC provides reports to the City on the program, which is expected to be complete by December 31, 2015.

City Resident Employment Development: NEC agreed to fund a total of $650,000:

  1. NEC has paid $500,000 to the Newark Workforce Investment Board, Inc. (“NWIB”) to fund a First Source Job Placement program. This program is designed to help NEC hire Newark residents. NWIB is a not-for-profit corporation headquartered in Newark. NWIB was created pursuant to a United States law to create state and local boards to provide better access to employment, education, training and information services. NEC promises to make good faith efforts to hire Newark residents.
  2. NEC has paid $150,000 to NWIB for a pre-apprenticeship training program.
  3. NEC will establish a paid intern program to be managed by the New Jersey Institute of Technology.
  4. To encourage city resident and business participation in the project, NEC also is required to includelanguage in its labor contracts encouraging local and minority hiring.

$5 Million Dollars in Payment to the City to Fund Health and Education Programs: The City of Newark decides how to allocate these funds for health and education programs for residents of Newark, and manages and oversees those programs. See the Program Management/Use of Funds section below for details on which projects Newark intends to fund.

Utility Easements/Connection Fees: NEC agrees to pay $11 Million Dollars for a utility easement. Program Management/Use of Funds

General: NEC manages the boiler replacement program, with oversight and input from Newark. All other programs funded by the Agreement are managed by Newark or by the non-profit corporation involved, and NEC has no input or control over them. Section 12 of the Agreement explains how Newark has elected to use the money:

Section12. City Allocation of Funding:

  • $2 Million Dollars for Newark Green and Healthy Homes program that will provide comprehensive energy and indoor air quality improvements in Newark residential structures;
  • $1.5 Million Dollars for Newark’s tree planting initiative;
  • $100,000 for air quality monitoring;
  • $100,000 for anti-idling and truck route enforcement;
  • $200,000 to fund sustainability office staff;
  • $100,000 for Waterfront Park maintenance; and
  • $5 Million Dollars for renovation of Ironbound Stadium.

Imagine that: a garbage incinerator is allowed to continue to poison a community in exchange for, among others,

  • $5 Million Dollars for renovation of Ironbound Stadium

III)  No Standards to Guide DEP Permit Decisions

But the flaws of the bill are not limited to the environmental justice impact statement.

Here is the broad and vague finding and “standard” that DEP is directed to apply and upon which DEP may deny or condition a permit:

a finding that approval of the permit  as proposed, 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

There are no legislative or scientific standards (numeric or narrative) or analytical methods provided in the bill to define, measure, and assess critical novel issues, including:

  • public health stressors
  • overburdened community
  • cumulative environmental or public health stressors
  • cause or contribute to
  • geographic unit of analysis
  • unacceptable risk or impact thresholds or standards

These are all highly complex and controversial scientific and policy issues. And DEP would be flying blind under this legislation.

That invites regulatory gridlock and successful litigation by lawyered up polluters – all while raising false expectations and manipulating the community.

The bill simply will not work without including substantive (preferably numeric) standards – or even a reference to scientific literature or regulatory policies or related legislative  standards.

In Part II (coming soon), we lay out 10 specific flaws with the bill.

[End Note: I was a victim of exactly the same politics and legislative draftsmanship by Senate Environment Committee Chairman Bob Smith in passage of the Coastal and Ocean Protection Council legislation.

In our first meeting where we pitched the bill to Senator Smith, he agreed  to sponsor it, but under 2 conditions:

1) the Council would have no regulatory powers, especially regarding land use;

2) the bill would not amend any environmental law (e.g. CAFRA), provide any new regulatory authority to DEP, or mandate that DEP do anything. The Council was to be a purely advisory body.

The difference is that – unlike the EJ advocates today – we never exaggerated the impacts of the bill; never misled the public; or compromised our principles or integrity and bargained away anyone’s health or community. ~~~ end]

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