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DEP Plan Required To Ratchet Down On Pollution To Attain Federal EPA Clean Air Act Ozone Standards

An Example Of Gaslighting: Rhetoric Versus Regulation

[Update below]

The Murphy DEP just proposed revisions to NJ’s federal Clean Air Act mandated State Implementation Plan (SIP), see:

The Ozone SIP has huge implications for public health, environmental justice, reducing greenhouse gas emissions, and conversion of NJ’s transportation sector to zero emission electric vehicles. 

The “mobile source” powers even provide back door land use leverage to restrict or effectively block traffic intensive land uses, like warehouses (e.g.  just think if DEP mandated that new warehouses not only had to be net zero emissions, but also had to have 100% electric trucks. Solar ready? that’s political cover, not science based policy).

The SIP revisions were required by US EPA in order to demonstrate how NJ would come into compliance with federal EPA’s ground level ozone standards – technically the entire state of NJ is in “non-attainment” status for ozone and the problem is serious and getting worse. According to DEP’s SIP revision:

It is not clear, but I suspect that a more restrictive plan is required to meet the lower existing 70 ppb standard -which scientists have criticized as inadequately protective:

A huge coalition of scientists, environmental groups criticized the Trump EPA for retaining that 70 ppl Obama EPA standard: (WaPo)

“There is powerful, overwhelming evidence that shows that this standard is not adequate to protect the health of Americans,” the group said in a statement. “EPA’s proposal violates the core purpose of these standards under the Clean Air Act: to protect public health with an adequate margin of safety.”

Curious, those same groups were silent when the Obama EPA withdrew and later adopted that “inadequate” standard (something we wrote about at the time (Obama’s first term) and later during Trump’s EPA.)

Regardless, there is no doubt that ground level ozone is a significant threat to public health. NJ has failed to attain the ozone standard for decades.

Ozone pollution disproportionately impacts urban “environmental justice” communities and is exacerbated by increasing temperatures driven by the climate emergency (i.e. see: “urban heat island” effect). Many ozone precursors are volatile organic compounds that are hazardous air pollutants (HAPs) that cause serious public health impacts and risks, like cancer. Many pollution sources have localized “hot spot” and “cumulative impact” environmental justice concerns . Many ozone precursor pollutants also contribute to global warming and their effects are magnified by global warming.

DEP’s own Climate Science Report (July 2020) noted the interactions between ozone and climate and EJ:

Increases in temperature expected as a result of climate change could intensify air pollution as well as respiratory and cardiovascular health concerns. Such impacts are of particular concern for already overburdened environmental justice communities.

But when it comes to putting that science and press release rhetoric into enforceable regulations, DEP takes a walk.

Remarkably, none of this is even mentioned – never mind addressed – in the DEP’s SIP.

The climate  and EJ issues, however, ARE included in the SIP, but only in rhetoric, not in regulation – a critical distinction.

But these issues are implicit and DEP evasively alludes to these issues, but ultimately dismisses them as “Another complexity”:

Serious consideration of climate and environmental justice would force radical changes in DEP’s air quality planning and regulatory programs – from everything from the location of air monitoring stations to the scientific methods for risk assessment and air quality modeling.

But despite the passage of recent environmental justice legislation and the 2007 Global Warming Response Act, DEP has not even begun to make these kind of changes, as this SIP reveals.

In addition to neglecting climate and environmental justice, quite honestly, I could not understand the specific regulatory mandates DEP was planning in order to reduce pollution levels necessary to attain the EPA standards (unless all that is implicit in the models). Let’s hope EPA holds NJ’s feet to the fire on that and makes critical issues transparent.

So, here’s some background on the DEP plan and suggestions on how to pierce the regulatory jargon and spin to read this complex document.

The core elements of the DEP SIP plan are called “Control Measures” (see Chapter 3) – they are regulatory mandates on industry that require specific reductions in emissions of chemical pollutants that cause or contribute to the formation of ground level ozone.

But even in Chapter 3, keep an eye out for DEP weasel words, like this:

The SIP also must include an “Attainment Demonstration” (see Chapter 6) that provides the data and modeling on exactly how the mandatory reductions will attain the ozone standards. 

NJ based petro-chemical, pharmaceutical, and energy Industries have long strongly opposed DEP regulatory mandates to ratchet down on pollution, often blaming “mobile sources” (cars and trucks) for the problem.  DEP has long deferred to these self serving industry arguments and delayed the necessary ratchet down on pollution controls on both industrial and mobile sources required to achieve the ozone standards and protect public health.

Historically, to mask these failures and avoid accountability – going back to the Whitman “open for business” administration – DEP and NJ industry have claimed that out of state pollution is the major cause of the problem.

The Murphy DEP continues to assert this lame excuse:

The DEP also has engaged in a lot of finger pointing, by blaming EPA and other states. The Murphy DEP continues this bureaucratic game – an incredible hypocrisy given NJ’s proposed major increase in transportation related emissions (new roads (and ports and airports) like the Turnpike and GS parkway expansions, create more vehicle miles travelled, and more pollution from mobile sources): Here’s DEP finger pointing:

Mobile Source Rules: Upwind states should adopt mobile source measures similar to those in New Jersey such as the California Low Emission Vehicle Program. The USEPA must also do its part to address mobile source emissions that contribute the largest portion of total NOx emissions within the nonattainment area as well as the region.

This behind the scenes industry lobbying and bureaucratic finger pointing largely explain why NJ has failed to attain federal EPA ozone standards.

The Murphy DEP has even gone so far as to echo the polluters’ discredited economic attacks and blame public health protection and environmental regulations for economic growth concerns. I’ve heard this Big Lie spouted by the Chamber of Commerce and NJ BIA for decades, so its disturbing to find it in the DEP’s own SIP:

Amazingly, not one NJ environmental group, public health group, or environmental justice group requested that DEP hold a public hearing on this SIP revision, which has tremendous implications for air quality, public health, and climate justice.

As I’ve written many times, the Foundations do not fund this essential regulatory work and therefore NJ environmental groups no longer do it.

Just as remarkably, DEP used this ENGO failure to cancel the scheduled public hearing on the proposed SIP revisions. Just what the corporate polluters wanted, as they remain below the radar. Here’s is DEP’s public notice:

Take notice that the New Jersey Department of Environmental Protection (NJDEP) will not be holding a public hearing on July 13, 2021, or on another date, because a public hearing was not requested.

So, let me just highlight the major flaws in the SIP revision. Keep in mind that the core regulatory requirements that actually require that pollution emissions are reduced are established in the  “Control Measures” (Chapter 3)  and “Attainment Demonstration” (Chapter 6).

It is critically important to keep this in mind because the DEP Ozone SIP plan does include a lot of rhetoric – which has no regulatory meaning and is not enforceable – about climate change and environmental justice. Basically, DEP inserted the text of a press release in a regulatory plan – but it was done in a way that is not enforceable (or subject to EPA oversight).

This distinction between rhetoric and binding regulations exposes the Murphy DEP Ozone SIP as a highly misleading fraud.

Similarly, it is critically important to distinguish actual regulatory controls with plans to develop future regulatory controls.

It is also critical to distinguish quantified pollution emissions reductions with rhetorical assertions and aspirational goals.

The Murphy DEP plan is largely written in the future tense and does not quantify emissions reductions associated with either future proposals or rhetorical program assertions (unless all that is implicit in the models). Here is a perfect example of that:

The Murphy DEP plan includes a lengthy Executive Summary that rhetorically describes various air pollution related programs and State funding for those programs.

But there is a huge difference between air pollution related programs and program funding and actual biding, quantified, and enforceable regulations on pollution reductions.

Finally, it is important to distinguish taking credit for prior accomplishments with current and binding future regulatory actions.

The Murphy DEP SIP is loaded with descriptions of prior actions, but very thin on current and binding future regulatory mandates.

For all these reasons, the headline correctly notes that the DEP SIP “ignores” climate and environmental justice – because it does so rhetorically and not with science and binding regulation.

The essential distinction that must be kept in mind while reading the document is between an enforceable regulatory standard and a press release.

So, with that context in mind, here are the major flaws.

1. DEP’s Ozone SIP Revision Ignores Climate Emergency