Home > Uncategorized > Gov. Murphy Tries To Walk Back LNG Export Plant Approval

Gov. Murphy Tries To Walk Back LNG Export Plant Approval

Days After Voting To Approve LNG Plant, Gov. Now Says He Opposes LNG

If The Gov. Is Serious, Here’s A Regulatory Roadmap to Kill The Project


[Update: I am holding off on posting Part 2 until DEP responds to my OPRA request for the Waterfront Permit, Water Quality Certification, and TCPA documents. Should post 1/13/21. ~~~ end]

This post is in two parts because the issues are complex: Part 1 exposes the Gov.’s lies, while Part 2 will lay out a regulatory path to kill the LNG project should the Gov. really want to do that. Some of the regulatory failings in Part 1 set up the Kill roadmap in Part 2.

Part 1

In a remarkable and embarrassing turn of events – and if true, potentially a huge victory for environmental activists –  NJ Spotlight reports that NJ Gov. Murphy now says he opposes and will seek to block an LNG plant on the Delaware River.

The Gov.’s U-Turn comes just days after his December 9 vote on the Delaware River Basin Commission to approve the project, see:

In the week prior to the DRBC vote, we blasted the project – which was opposed by a four state coalition of environmental groups:

We also were shocked by and questioned how the LNG project had quietly received Murphy DEP permit approvals a year prior to the controversial DRBC vote:

So, while we are pleased to learn that the Gov. now opposes the LNG plant he just voted to approve (a year after his DEP issued permits to approve it), we are highly skeptical of the Gov.’s reported pledge now to try to “block” the project.

I) The Governor’s Press Office Is Flat Out Lying

That skepticism is compounded by two flat out lies the Gov.’s press office told in defending the Gov.’s embarrassing U-Turn.

The Gov. seems to suggest that the LNG project is not what DEP permitted and voted at DRBC to approve. Gov. Murphy seems to think – incorrectly – that the dredging operation/dock and the LNG are two different projects and he only supported the dredging and dock construction.

It is not possible to make this kind of mistake.

Let me be clear, of course, I want to hold the Gov. accountable for his lies and DEP accountable for what appears to be massive incompetence based on flawed regulations.

But, more importantly, I need to elaborate on the lies because if they are accepted then the Gov. and DEP can not kill the project.

Specifically, NJ Spotlight reported:

“The DRBC vote was in support of upholding a dredging permit for the construction of a dock,” Murphy said in a statement issued by his deputy press secretary, Alex Altman, on Tuesday. “It was based upon an extensive and comprehensive scientific and technical analysis of its impact on water quality performed by DRBC staff and examined again during a subsequent hearing.”

The first lie here is that the DRBC vote was NOT only for a dredging permit. The project the DRBC approved explicitly included the LNG export operation. For the wonks, here’s the full DRBC docket on the project, which makes that very clear.

The DRBC Opinion Approving the Resolution for the project makes it clear that DRBC approved an LNG operation:

As stated in the Application, “The purpose of Dock 2 is to develop a marine facility capable of accommodating the export of bulk liquid products by vessel, including infrastructure necessary for transloading operations which will allow vessels to be loaded directly from railcar or truck.”

1 The liquids to be transloaded to marine vessels at Dock 2 include liquefied hazardous gas (“LHG”) and liquified natural gas (“LNG”). S

More than a year before that, here is the DRBC Hearing Officer’s report that formed the basis for the DRBC review and approval:

Most relevant to the instant proceeding, these changes included amending the project description by specifically listing liquid natural gas (“LNG”) and Liquid Petroleum Gas (“LPG”)3 among the “bulk liquids and bulk gases” generally referenced in DRP’s Application. Changes recommended by Mr. Kovach also included the addition of an express condition that the DRBC may rescind or reopen the docket if warranted in light of new information. With these changes and others discussed infra, the draft docket was unanimously approved by the Commission on June 12, 2019.

Keep that phrase “reopen the docket if warranted in light of new information” in mind – we’ll get to it in part 2.

The DRBC Hearing Officer’s report also has another highly significant finding we’ll get to in part 2, see paragraph 358 g.

DRP is required to comply with NJDEP’s Toxic Catastrophe Prevention Act (“TCPA”) which mandates an extensive risk analysis and demonstration through a risk management plan prior to the introduction of LNG products on site. (Exhibit J-50, p. 12-13)

But first we explain the second lie.

The second lie is that the DEP and the DRBC reviews were NOT  “based upon an extensive and comprehensive scientific and technical analysis of its impact on water quality.”

II)  The DRBC Review Was “Narrow”, Not “Comprehensive”

DEP’s State Geologist, who represents Gov. Murphy on the DRBC and was involved in the DEP permit approvals of the LNG project, admits that the DRBC’s review and approval was “narrow“, while also trying to spin the Gov.’s false distinction between the dredging and dock construction and LNG: (State Impact)

“While New Jersey acknowledges the larger criticisms surrounding the proposed operations of this project, the issue presented to the commission is a narrow one: whether or not to affirm its prior decision that dredging activities related to the construction of a second dock at the marine terminal complex in Gibbstown satisfy the commission’s water quality standards,” said New Jersey geologist Jeff Hoffman, representing that state’s decision to approve the plan.

The DRBC not only failed to comprehensively regulate water quality standards issues.

The DRBC review completely ignored the impacts of climate change on important and comprehensive DRBC water resource management responsibilities under the DRBC Compact.

The DRBC is a powerful institution (State Compacts are established under the US Constitution and the DRBC Compact was created by an act of Congress, signed by President Kennedy). The 4 Delaware watershed State Governors are DRBC’s Commissioners, so this is not some backwater or rinky dink operation. DRBC not only has a broad mission and broad authority, but it also has broad legal discretion. For example, Section 3.6 General powers include:

(b) Establish standards of planning, design and operation of all projects and facilities in the basin which affect its water resources, […]

(h) Exercise such other and different powers as may be delegated to it by this Compact or otherwise pursuant to law and have and exercise all powers necessary or convenient to carry out its express powers or which may be reasonably implied therefrom.

An LNG plant obviously – via climate change – “affects its water resources”.

These impacts are “reasonably implied” by the best available science and the Commission’s mandate to manage water resources.

Furthermore, effectively as a legal matter, DRBC’s jurisdiction, authority, responsibilities, and obligations are broader under the Compact than under the limited specific DRBC management policies, standards, and project review regulations and protocols.

What this means in practice is that just because there is no specific DRBC water quality standard, regulation, or permit review protocol that explicitly identifies “regulated activity” (i.e. LNG) and mandates consideration of climate impacts does not mean that the Commission can not do so if the best available science demonstrates that activity would adversely effect the water resource management objectives delegated to the Commission under the Compact.

But instead of assuming the Commission’s responsibility under the Compact, the Commission tries to evade it with BS like this: (NJ Spotlight)

“The Commission does not exercise jurisdiction over the surface transport of cargo to regional port facilities; nor does it review or approve the cargo that moves through our region’s ports,” the DRBC said in a statement on Thursday. “We have no comment on matters outside of DRBC’s authority and jurisdiction.”

What irresponsible bullshit – this is not about shipping or cargo, it’s about major fossil infrastructure and climate impacts to protected DRBC resources (and I could even make a case that DRBC does in fact have jurisdiction to review cargo shipping under the recreational powers of the Compact).

This is no esoteric or theoretic debate. The failure by DRBC to consider climate impacts include consideration of climate change impacts on:

  •  water quantity (i.e. changes in precipitation that effect river flows, flooding, and drought); climate change
  • impacts on water demand (i.e. higher domestic, industrial, and agricultural water use due to increased temperatures); 
  • climate change impacts on hydrology and water availability (e.g. additional evapo-transpiration, changes in river flow conditions as there is more rain and less snow, reduced and accelerated snowmelt, loss of forest cover alters runoff dynamics, etc), and
  • climate impacts on water quality.

Instead of the falsely claimed “comprehensive scientific and technical analysis“, the DRBC considered climate impacts on just 3 features: migration of the salt line; impacts on T&E species, and impacts on certain fisheries like sturgeon. DRBC did not even conduct these narrow reviews, they delegated them to the National Marine Fisheries Service (NMFS).

These are not just hypothetical or theoretical omissions in the DRBC review of the climate impacts of a major fossil infrastructure project.

DRBC’s own scientist have analyzed climate impacts on the Delaware River and watershed, see:

Here are DRBC’s scientific findings on climate change impacts on water resources regulated by DRBC under the Compact:

Climate Change Impacts in the Delaware River Basin

Climate change has the potential to impact water availability, water quality, and the ability to meet water management goals in the Delaware River Basin. […]

DRBC science also notes, in more detail:

Sea levels are rising. Since the early 1900s, sea level has risen at an average rate of about 2.93 mm/year, which equates to 0.96 ft/100 years. A change in sea level affects the overall volume of water in the Delaware Estuary and Bay, which can affect the movement of the salt front, increasing salinity in the upper portion of the estuary….

Local climate change impacts for the Delaware River Basin include increased temperature, changes in precipitation patterns, and sea level rise, all of which affect water supply and water quality.

  • Increased temperatures will affect evapotranspiration rates; more evaporation means less water available for streamflow. Increased temperatures will also affect stream water quality; turbidity levels will likely increase, and dissolved oxygen levels decrease.
  • Precipitation is predicted to occur in the form of fewer, more intense storms occurring in the winter months. This means a potential increase in flood events coupled with extended drought cycles.
  • The seasonality of flows may also change, for example, less snowpack in the winter may cause lower flows in the spring.
  • Sea level rise may require increased releases from storage to augment river flows to repel salinity and/or costly modifications by water suppliers to treat increases in dissolved solids.
  • Climate change could also affect instream flow and temperature conditions for aquatic biota.

In December 2019, DRBC formed the Advisory Committee on Climate Change (ACCC) to provide the Commission and the basin community with scientifically based information for identifying and prioritizing these threats to the basin’s water resources, as well as recommendations for mitigation, adaptation and improved resiliency. Its inaugural meeting was held on August 4, 2020. Please visit the above link for committee information.

The effects of climate change are being considered as DRBC plans for future water supply availability and whether new drought or flow management programs are needed in the basin. Modeling and other analyses are already underway to further define the range of risks due to climate change as well as evaluate future water demands for different purposes. Once this work has been completed, different approaches and mitigation measures will be needed to develop robust plans and resources to address the risks posed by climate change

But don’t let the recent December 2019, DRBC formed Advisory Committee on Climate Change fool you.

DRBC’s consideration of climate science is longstanding. Over a decade ago, way back in 2010, DRBC scientists were involved in this study:

We wrote in detail about that study – which predicted the devastating impacts of Superstorm Sandy – in a July 2012 post:

But over a year before the recent DRBC approval, the Murphy DEP quietly issued permit approvals – the Gov. has not even tried to explain how this happened. These DEP permits call into question not only the Gov.’s veracity, but the competence of his DEP Commissioner.

 DEP permits include: (source: DRBC Docket approval)

The New Jersey Department of Environmental Protection (NJDEP) on May 20, 2019 issued its Waterfront Development Individual Permit for the Project (0807-16-0001.2 WFD190001), which includes the Water Quality Certificate required by Section 401 of the federal Clean Water Act.

III)  The DEP review was not science based or comprehensive

The DEP Waterfront Development permit failed to consider climate change impacts or safety impacts.

The DEP Water Quality Certificate failed to consider climate impacts. The NY DEC denial of WQC for pipelines provides a template and precedent for DEP to use.

I’ve written about these major flaws many times, so will not repeat all that now.

IV) The LNG Kill Path

Tomorrow, I’ll post Part 2, which lays out a specific regulatory strategy to kill the project. Here’s the gist, without the regulatory text, citations, and links:

As we noted above, the project has not yet received DEP Toxic Catastrophe Prevention Act (TCPA) approval. Not sure if they’ve submitted a TCPA application yet. Someone needs to file OPRA requests about this TODAY! Importantly, the DEP Waterfront Development Permit standards explicitly include a review of public safety, which DEP failed to do.

Basically, what the DEP can do now is suspend and re-open the current Waterfront Development Permit and Water Quality Certificate (similar to how DEP recently suspended permits for the NJ Natural Gas pipeline in the Pinelands).

Based on the new review during suspended permits, based on “new information” and/or information they failed to consider in issuing the original WFDP and WQC, DEP would mandate a new review of climate change impacts and water quality impacts they failed to do initially.

DEP would also mandate a TCPA analysis as part of the suspension process, including for off site consequences of the LNG operation.

DEP would have a very strong hand to deny the TCPA approval as an unacceptable risk.

This denial would be based on both TCPA risk analysis and the DEP waterfront development “public safety” regulatory standards.

The climate and WQC are more technically difficult and less likely to succeed, but must be made.

Categories: Uncategorized Tags:
You must be logged in to post a comment.