Murphy DEP Denial Of Climate Petition Exposes The Sham Of Murphy’s Climate Rhetoric And Executive Orders
DEP Rejects Enforceable Greenhouse Gas Emissions Reductions
DEP Admits Continued Reliance On and Expansion Of Fossil Power
On December 18, 2021, the Murphy DEP denied a petition for rulemaking filed by a coalition of over 50 climate, environmental justice, and environmental groups and activists (read the DEP denial). It is an incredible example of bureaucratic obfuscation and diversion.
We wrote about the petition when it was filed back in July and again in October when DEP cowardly postponed a decision before the election, see:
As far as I can tell, the NJ media – certainly NJ Spotlight – failed to cover the story .(i.e. when it mattered and could have made a difference in mounting public pressure: i.e. when the petition was filed and when it was delayed by DEP until after the election).
There are several critically important lessons to be drawn from the Murphy DEP denial:
1. Climate activists refused to publicly pressure the Governor with aggressive protest tactics. At the same time, groups I call the NJ Green Mafia (NJ LCV, Clean Water Action, NJCF, Environment NJ, NJ Audubon) repeatedly provided undeserved praise and political cover for the Governor.
With little or no activist protest and no media coverage, the Governor felt no pressure to approve the petition, especially when he was enjoying such robust green cover and a supplicant stenographic media who constantly praised his rhetoric.
2. The DEP denial exposes the sham of the entire Murphy DEP climate rhetoric and the hollow and self serving train of Executive Orders. Those Orders never had any teeth and the media and Green mafia duped the people of NJ about that fact.
3. The DEP denial exposes the ideological and policy basis for the administration’s climate program, which, as I have written, are the Neoliberal pro-business anti-regulatory disaster of market driven, voluntary, and individual actions in pursuit of purely aspirational goals with huge government corporate subsidies (Orwellian incentives).
The DEP went out of their way to confirm this and stick a finger in the eye of activists, who DEP ridiculed as “simplistic”:
Consistent Statewide climate policy development underway since January 29, 2018, has demonstrated that New Jersey’s response to the climate crisis is not a matter of environmental regulation alone; rather, it is a composite of concerted structural, economic, and societal change across sectors, aided by supportive regulatory reform where applicable. The complexity of achieving emissions reductions on the scale necessary does not lend to simplistic regulatory formulations as proposed by petitioners.
Back in the day, there used to be the concept of a “technology forcing” role for environmental regulations, where strict environmental standards would drive technological innovation and increase productivity (even Al Gore touted that). (That’s why NJ’s State Air Pollution Control Act has an “Advances in the art of pollution control“ standard, which, as I’ve written, DEP has ignored for decades). And before that, environmental regulations were considered part of what economist Lester Thurow and others called old fashioned New Deal era “industrial planning” (which morphed into “industrial ecology” and then “sustainable development”). This is not some green leftist utopian environmental program, it has deep roots in political economy, most aptly in the “creative destruction” of economist Joseph Schumpeter. So, the poorly educated pompous Neoliberal Hayekian corporate hacks at DEP can take their “simplistic” smear and shove it.
5. The DEP denial exposes the fact that the Murphy Administration is committed to relying on and even expanding current fossil power for the “next several decades” – and that the projected doubling of electric demand will be fueled by natural gas (not off shore wind)
Indeed, with the electrification of buildings and transportation, the EMP predicts more than doubling energy demand and in-State dispatchable generation will be required to meet the State’s energy demand. See id. at. pp. 17, 37. Fossil fuel-fired electric generation in the State will continue to be needed until clean energy sources come online and clean energy technology advances to meet anticipated electric demand.
As a result, “New Jersey must look broadly across the entire energy system and engage in a holistic transition to moderate the effects of climate change while continuing to grow the economy and maintain a modern way of life.” Id. at 24. The 2019 EMP thus included extensive modeling that resulted in the identification of seven overarching strategies deployed over the next several decades that the State should pursue to meet the 80×50 goal and 100 percent clean energy goal.
The term “dispatchable generation” gives the fossil game away (renewables are often not “dispatchable”). So does the requirement to “meet anticipated electric demand.”
6. The DEP denial exposes the fact – as I testified when the bill was under consideration, as I wrote when Gov. Corzine signed the bill into law (my 10/7/07 Star Ledger Op-Ed: “No Teeth in ‘Tough’ Climate Law” link doesn’t work, but see this DKos post) and as I’ve been writing for over a decade – that the NJ Global Warming Response Act has no teeth and the GHG emission reduction goals of that law are purely aspirational and can not be enforced by DEP.
The DEP’s recently proposed CO2 emissions rule also validates this criticism, because, as I wrote, the DEP failed to link individual permit emissions with compliance with or attainment of Statewide GHG emissions reductions under the GWRA or Gov. Murphy’s Executive Order #274, as is done by NY DEC under NY climate law
7. The exact same criticisms applied to recent amendments to the GWRA, dubbed the NJ Clean Energy Act. That is another cynical Kabuki game. DEP was forced to admit this as well and did so openly: (p. 14-15)
The 2019 GWRA amendments also directed the Department to adopt, within 18 months of transmittal of the 80×50 Report, rules establishing any interim benchmarks and measures necessary to meet both the 80×50 goal and any interim benchmarks. N.J.S.A. 26:2C-41. […]
While petitioners seek the establishment of interim benchmarks by rule, the Department interprets N.J.S.A. 26:2C-41 as giving the Department discretion to first determine if establishing interim benchmarks as a matter of regulation is a prerequisite to achieving the 80×50 goal. {…]
… the GWRA also appears to give the Department discretion to promulgate interim benchmarks by rule. Since the filing of the subject petition, an interim benchmark, i.e., the 50×30 goal, has since been established pursuant to Executive Order 274. It bears noting, however, that other interim benchmarks have been accomplished without a specific regulatory codification.
The GWRA “appears” to provide regulatory authority? And then as soon as they make that equivocal statement, they quickly run away from any regulatory action.
8. Relatedly, very few people are aware of the fact that – despite the DEP Commissioner and the Gov.’s rhetoric and Executive Orders – the highly touted Murphy “environmental justice law” does not explicitly apply to or regulate greenhouse gas emissions. That effectively means that DEP EJ permit reviews will continue to ignore regulation of GHG emissions.
(we are now working on a post that will expose the fact that the recent DEP CO2 GHG emissions proposed rule totally ignores environmental justice concerns. The Cliff Notes version of that post goes like this: a) the Murphy EJ law applies only to certain DEP permits; b) those permits include for any: “Facility” means any: (1) major source of air pollution”; c) DEP just proposed a regulation for CO2 air pollution emission from major sources and that proposal did not include any EJ concerns; and d) the EJ law did not amend the current DEP air permit regulations.; e) The new EJ law created an entirely new EJ DEP permit review process, parallel to pre-existing air permit regulations; f) The EJ law created a new “EJ impact statement”. DEP EJ permit decisions are based on the EJ impact statement and a series of complex, novel, and vague standards; g) As such, give all this, the EJ law will not be able to overcome the status quo, as DEP just revealed in their basis for denial of the climate petition. I’ve called the current fiasco for developing rules to implement the new EJ law a “wild-goose chase”.)
9. The DEP denial – exactly as I warned – exposes the fact that DEP has very narrowly interpreted their statutory authority to regulate greenhouse gas emissions.
In the denial, DEP completely fails to assert jurisdiction to regulate greenhouse gas emissions under DEP land use programs and DEP fails to make the link (as NY State DEC has done) between greenhouse gas emissions and water resource impacts:
Moreover, achieving these reductions implicates, inter alia, the regulation of energy markets, solicitation of renewable energy capacity, establishment of Statewide building codes, management of transportation systems, and other areas where the Department may lack sole authority. In areas of Department jurisdiction, including authorities arising under the Air Pollution Control Act, N.J.S.A 26:2C-1, et seq., the Commissioner has proposed and continues to propose successive climate pollutant reduction rules as part of the Department’s iterative NJPACT initiative.
This dangerously narrow legal interpretation – coupled with DEP’s recent failure to regulate methane, failure to build a nexus between GHG emissions and water resource impacts, and the exclusion of GHG emission from the EJ law – absolutely guarantees that DEP will continue to rubber stamp gas pipelines and other gas infrastructure (in contrast, while NY Sate DEC has denied fossil pipelines on the basis of greenhouse gas emissions and climate impacts on water resources).
In a deeply dishonest move, the DEP denial tangentially alludes to – but evades response to – the critically important issues of:
a) a scientific and regulatory nexus between greenhouse gas emissions and regulated water resource impacts; and
b) the regulatory authority to deny a permit based on GHG emissions and their relationship to and compliance with State GHG emission reduction goals:
In their supplement, petitioners stated their petition was supported by two recent orders issued by the New York State Department of Environmental Conservation that separately denied two Title V permits under the State of New York’s Climate Leadership and Community Protection Act.
DEP failed to respond to that. Those are core issues and HUGE gaps and loopholes in NJ law and DEP regulation.
10. The DEP denial exposes the Green Mafia cheerleaders, who have praised Murphy’s climate rhetoric and hollow Executive Orders.
11. Finally, the timing of the DEP denial also exposes the gaslighting manipulation and cynical news management at the Murphy DEP.
The DEP knew this denial would prompt widespread and strong criticism – as well as force media coverage of a story they have ignored.
Therefore, DEP was sure to issue a few “good news” smokescreen diversionary press releases about climate initiatives before the shit hit the fan. (a critique of DEP’s “carbon sequestration” strategy forthcoming).
And they did it just days before Christmas.
There can and should no longer be any doubt about the bullshit emanating from the Murphy DEP.
The Green masks are off and the Corporate and Wall Street fangs have been exposed.
Let’s hope that the Green Mafia cheerleaders and the NJ media stenographers get the message.