Archive for January, 2022

State Ethics Commission To Review Gov. Murphy’s Pinelands Picks

January 31st, 2022 No comments

Request to Force Commissioners To Publicly Disclose Corporate Conflicts And Recuse 

Ethics Commission Immediately Imposes A Cloak Of Secrecy

There are ways to protect legitimate privacy rights without invoking total secrecy

After failing to convince Pinelands Commission Ethics Officer Stacey Roth to require public disclosure of corporate clients and require recusal of Gov. Murphy’s confirmed Pinelands Commisisoners Matos and McCurry, I appealed to the State Ethics Commission to intervene and review the ethics compliance issues.

On Friday, the Ethics Commission responded to my request.

In a cryptic email, they confirmed that the matter was under review, but immediately imposed confidentiality over the review process.

Dear Mr. Wolfe –

The State Ethics Commission is in receipt of your allegations.  We are unable to provide you with any update due to our confidentiality rules.

Thank you.

Mary Ann Keys, Esq.

Legal Specialist

New Jersey State Ethics Commission


So we find ourselves in a bizarre Kafkaesque situation where a Commission, created to enforce State ethics laws designed to promote public confidence and trust in government, is acting directly contradictory to that mission by using secrecy to undermine public trust and confidence in government!

The Ethics Commission is acting like some clandestine CIA like outfit that can not confirm or deny their involvement. Their review process is the epitome of a black box. No transparency whatsoever.

[Update 4/4/22: Almost as if to parody my reference to the CIA, I received this email from the State Ethics Commission today:

Hello Mr. Wolfe,

This will confirm the receipt of your most recent email. As previously noted, the SEC is in receipt of the information you provided. Unfortunately, I cannot provide you with any updates regarding the concerns you raised. This email nor any of my prior emails neither confirms or denies the existence of an investigation.

Mary Ann Keys, Esq.

Legal Specialist

New Jersey State Ethics Commission

She left out the part about “this email will self destruct in 10 seconds”!!! ~~~ end update]

I’ve been through this absurd situation with the Ethics Commission before, when back in 2005, I filed an ethics complaint on DEP Commissioner Brad Campbell for providing confidential information to Joe Riggs, CEO of Hovnanian (the huge housing developer) to give him a heads up on upcoming DEP Category One waters regulatory proposals, see:

At that time, I publicly spoke before the Commission to argue this same exact issue regarding the absurdity and contradiction inherent in its confidentiality rules.

At that time, a Commission member agreed with me and I had a very interesting colloquy with Commissioner (I think it was former Gov. Brendan Byrne who agreed with me).

So, of course I objected to this again and reminded the Commission staff of this history – perhaps the NJ media can ask similar questions and at least force the Ethics Commission to explain the rationale for and defend this total secrecy policy.

It seems that there are many ways to protect the legitimate privacy rights of people subject to ethics reviews without invoking total secrecy:

From: Bill WOLFE <>

To: “Keys, Mary Ann [ETHICS]” <>

Date: 01/28/2022 2:18 PM

Subject: Re: Fw: [EXTERNAL] Pinelands Commissioners – ethics review

Ms. Keys:

Thank you for a timely reply.

FYI, back in 2005, I was interviewed by Ethics Commission investigators regard a complaint I filed agains DEP Commissioner Campbell. Subsequently, I appeared before the Commission during its public meeting and sought certain public disclosures.

At that meeting, Counsel for the Commission made a similar confidentiality claim. Of course, I strenuously objected, which triggered a very interesting colloquy with a Commissioner (I think it was former Gov. Byrne),who supported my position in support of public disclosure.

Just thought I’d advise you of that history and request that you provide the current legal basis for your assertion of confidentiality.

Bill Wolfe

[Update: Ms. Keys again promptly replied this morning and cited Commission regulations: N.J.A.C. 19:61-3.5(b) 1; N.J.A.C. 19:61-3.1(a)3; and/or N.J.A.C. 19:61-3.1(c)3..]

Here is the request for an ethics review that I submitted to the Commission:

———- Original Message ———-

From: Bill WOLFE <>

To: “” <>

Cc: “” <>, “” <>, “” <>

Date: 01/27/2022 6:26 PM

Subject: Pinelands Commissioners – ethics review

Dear State Ethics Commission:

I am writing regarding two recently confirmed and seated Commissioners at the NJ Pinelands Commission, Ms. Matos and Mr. McCurry.

As you know, the State Uniform Ethics Code has a very broad standard regarding potential conflicts of interests:

“interest might reasonably be expected to impair a State official’s objectivity and independence of judgment in the exercise of his/her official duties or might reasonably be expected to create an impression or suspicion among the public having knowledge of his or her acts that he/she may be engaged in conduct violative of his/her trust as a State official.”

Issues involving actual, potential, or the appearance of conflicts of interest by Gov. Murphy’s corporate nominees to the Pinelands Commission, Ms. Matos and Mr. McCurry, were raised by many people immediately after their nominations were announced in December.

On December 3, 2021, Carleton Montgomery, Director of the Pinelands Preservation Alliance wrote

“In a truly shocking move, Governor Murphy today nominated three corporate lobbyists for the Pinelands Commission. They would replace three seasoned environmental leaders with years of service for the Pinelands.

All three of the new nominees appear to have fundamental conflicts of interest due to their employment as lobbyists for industry.  Only one of the three appears to have any prior interest at all in environmental protection.”

A scathing December 9, 2021 Star Ledger editorial also raised concerns regarding the corporate backgrounds and conflicts of interest of these nominees.

The Star Ledger editorial board excoriated Gov.Murphy’s nominations of these individuals as “a craven power play”, a “brazen” attempt to “gut the Commission during lame duck”, and a “scheme” that was similar to the “bullying” by Gov. Christie.

Testimony before the Senate Judiciary Committee in early January by David Pringle of Clean Water Action specifically raised concerns about conflicts of interest of the nominees.

Given this media coverage, Senate testimony, and public debate, there is already significant public concerns and a reasonable appearance of ethical conflicts.

This situation warrants intervention by your Office.

I am requesting that the State Ethics Commission review this matter for compliance with the spirit, intent, and letter of NJ’s ethics and conflicts of interest laws, i.e. the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq., standards and codes adopted pursuant thereto, including Gov. Murphy’s Executive Order #2, for, among other things, the following reasons:

1. Ms. Matos is currently – and previously was employed – by corporate firm(s) that represents corporate clients, organizations, and individuals that may have, or appear to have, various interests in the NJ Pinelands or appear before the Pinelands Commission.

Additionally, she has served in various capacities for political candidates and Governor Murphy, see bio:

Accordingly, there may be reasonable grounds for the public to question her

objectivity and independence of judgment in the exercise of his/her official duties”  or that there “might reasonably be expected to create an impression or suspicion among the public having knowledge of his or her acts that he/she may be engaged in conduct violative of his/her trust as a State official.”

2. Mr. McCurry is currently employed by Orsted, a corporation that is currently involved with Gov. Murphy’s off shore wind development program and has huge economic interests of a statewide nature, particularly in potential issues that may come before the Pinelands Commission.

Here is my McCurry’s bio, per Orsted:

I am concerned with this job function for Orsted:

“McCurry will help develop and implement strategies to ensure the successful advancement of existing projects, Ocean Wind 1 and 2, inform efforts to secure additional business and shape Ørsted’s position and standing in the state.”

According to his bio, Mr. McCurry also has prior employment and relationships with Gov. Murphy’s office and a Trenton corporate lobbying or public relations firm where he may have had relationships with corporations or individuals that may have interests in the Pinelands or appear before the Pinelands Commission.

Accordingly, there may be reasonable grounds for the public to question his

objectivity and independence of judgment in the exercise of his/her official duties”  or that there “might reasonably be expected to create an impression or suspicion among the public having knowledge of his or her acts that he/she may be engaged in conduct violative of his/her trust as a State official.”

3. I previously attempted to work with the Pinelands Commission’s ethics officer, Ms. Stacey Roth. I wrote her on Jan. 14 and made the following requests, which she subsequently denied due to a timing issue. I wrote to request that Ms. Roth:

“1) Consult with your ethics liaison in the Attorney General’s Office regarding the procedure, scope, and content of the ethics review for these Commissioners and secure a formal written opinion providing legal guidance;

2) Consult with your ethics liaison at the State Ethics Commission regarding the procedure, scope, and content of the ethics review for these Commissioners and secure a formal written opinion providing ethics guidance;

3) require that both Commissioners file ethics disclosure and recusal request documents, prior to the AG and Ethics Commission consultations suggested above and incorporate those documents in the AG and Ethics Commission reviews.”

Ms. Roth rejected those requests on the following basis (emphasis mine). Ms. Roth wrote in reply:

“The Pinelands Protection Act, at N.J.S.A.13:18A-5(a)1, authorizes the Governor to appoint seven members to the Commission with the advice and consent of the Senate. The Senate approved Ms. Matos’ and Mr. McCurry’s appointments to the Pinelands Commission on January 10, 2022. The Act does not provide a mechanism for the Commission itself or the Commission staff to appoint, vet or challenge Commissioner appointments.

With regard to potential conflicts of interest and participation in official Commission matters, please be advised that all Pinelands Commissioners, as Special State Officers, are subject to the requirements of the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq., the regulations of the State Ethics Commission at N.J.A.C. 19:61 implementing same, the Uniform Code of Ethics and other ethics requirements pursuant to other statutes and gubernatorial Executive Orders.

Accordingly, Commissioners are required to recuse themselves from any official matter in which s/he has a direct or indirect financial or personal interest that is incompatible with the proper discharge of his/her public duties. N.J.S.A. 52:13D -23(e)2 and Uniform Code of Ethics, last revised July 2021, Paragraph IX Recusal on Official Matters. Commissioners are also required to recuse themselves from any official matter if s/he had any involvement in that matter, other than on behalf of the State, prior to commencement of his/her State service. Thus, the concerns raised in your letter regarding potential conflicts of interest, should such arise, would be addressed by the recusal process.”

4. Given the resistance and dismissal of my prior Jan. 14 request and Ms. Roth’s support for what appears to be the Pinelands Commission’s case by case voluntary Commissioner originated recusal process, I request that the State Ethics Commission intervene and conduct a de novo review of this matter, including:

a) clarify – procedurally and substantively – exactly what Ms. Roth meant by writing “the concerns raised in your letter regarding potential conflicts of interest, should such arise, would be addressed by the recusal process.”

Whatever this means, is this consistent and in compliance with all State ethics requirements?

b) require public disclosure or all former and current corporate clients, individuals and interests these Commissioner have personal, financial or other relationships with;

c) require public disclosure of all documents filed pursuant to Gov. Murphy’s Executive Order #2; and

d) require mandatory categorical recusals for any and all these clients, individuals and organizations – on a prospective basis, i.e. recuse now, before a potential conflict emerges in the future on a voluntary  case by case basis.

Under these circumstances, Commissioner’s should not be the judge of a potential conflict or appearance of one, nor should Ms. Roth as ethics officer, because she is too close to and captured by the Commission and has shown a pattern of insensitivity to ethical conduct.

I appreciate your assistance and would be glad to discuss this matter of provide additional supporting information.


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Kicking The Can Down The Road On Climate – For 15 Years!

January 30th, 2022 No comments

The Global Warming Response Act Is A Fraud

I’ve written two recent posts to explain how and why the 2007 NJ Global Warming Response Act (GWRA) is a toothless fraud, see:

We didn’t just arrive at this analysis yesterday – we’ve been trying to expose this fraud for 15 years!

Today’s post begins to explore the implications, particularly for DEP’s proposed CO2 rule for certain power plants.

The only reason that NJ corporate climate polluters have not exposed that fraud via litigation and/or political attack is due to the fact that the DEP has never even attempted to enforce the emission reduction goals of the Act.

The business community has gone along with the fraud because the GWRA does not impact them in any way. Instead it actually shields them from real emission reduction requirements.

That passive acceptance and willingness to go along with the GWRA fraud is likely to change as a result of DEP’s proposed CO2 emission rule for a small set of power plants, despite the fact that the DEP proposal is very weak in terms of emissions reductions and applies to only a small subset of GHG emissions and would have a negligible impact on corporate compliance costs and profits.

That acceptance posture will change because DEP is asserting regulatory authority to mandate GHG emissions reductions in permits – and – in theory – DEP could force permitees to actually meet the GWRA goals.

This would fundamentally conflict with the political and legal understandings that allowed the GWRA to pass.

If DEP is now allowed to regulate emissions to force corporate NJ to actually meet what were always understood to be rhetorical and aspirational GWRA reduction goals, there will be significant and costly implications for the status quo. That is totally unacceptable and an existential threat to the profits of powerful corporations in NJ. That’s not what they agreed to.

The last time DEP even suggested that they might do that (2005), DEP was forced to get down on their knees and apologize. DEP was forced to explicitly exempt GHG emission sources from DEP permit requirements and air pollution emissions fees.

Here it is: (DEP, from the NJ Register)

It was not the Department’s intent to establish CO2 emissions permitting and regulatory requirements through the proposed amendments. The Department has modified the rules on adoption to except CO2 from existing air pollution regulatory and reporting requirements. ~~~ NJ DEP, 2005

In contrast to their fundamental opposition to DEP regulatory authority and enforceable emission reduction goals under the GWRA, corporate polluters are willing to accept the Regional Greenhouse Gas Initiative (RGGI) – a market based, not regulatory – program for several reasons:

1) because the RGGI allowance fees are so small they are a minor cost of doing business and can be fully passed through to energy consumers via a surcharge in BPU Orders;

2) because the RGGI “emissions cap” is a fiction – i.e. the cap is not enforceable as a real cap (i.e. strict limit) on total GHG emissions

3) because the RGGI “emission caps” are not enforceable in DEP permits at individual facilities;

4) because the RGGI cap is 30% HIGHER than current GHG emissions and there are millions of tons of surplus “banked credits”, therefore the price of RGGI allowances will remain low for a long time; and

5) because RGGI applies to a tiny subject of GHG emissions sources (in NJ, only about 33 industrial power plants that produce at least 25 MW of energy to the grid), not the entire economy, or all greenhouse gases (like methane), or all major GHG emission sources.

I’ve been trying to get focused attention on this fraud for 15 years. I have failed.

Weeks after the GWRA was signed into law, I wrote an Op-Ed to expose the fraud.

In an October 7, 2007 Sunday Star Ledger Op-Ed, we explained why the law was designed to fail (see: No teeth in ‘tough’ pollution law):

The law — contrary to widespread media coverage — does not legally cap greenhouse gas emissions or mandate emissions reductions on any major pollution sources. As a result, the law’s theoretically “mandatory” goals are unenforceable and therefore a fiction. They amount to the same voluntary approach backed by the Bush administration.

Specifically, the law provides no regulatory authority, funding or staff for the DEP to take the necessary steps to implement and enforce the emission reduction goals. Instead, the DEP is kept on a tight leash and merely directed to develop a set of recommendations on how to meet the goals and to submit that proposed plan to the Legislature by June 2008. In passing the law, the Legislature merely kicked the can down the road, postponing hard choices for well over a year.

Perhaps even worse, any DEP powers to implement the goals of the law were explicitly narrowed. DEP’s role is limited to emissions monitoring and reporting progress in achieving the goals.

Silly me – I thought there would just be a year or so of delay – not 15!

Given their numerous climate promises, the Murphy DEP is desperately trying to keep this fraud viable – that’s what explains their incredibly weak CO2 emission proposal. DEP is hoping if they just pretend to regulate emissions and not really impact the status quo, that the corporate powers that bill will continue to go along with the fraud.

No way. One of the corporate interests will litigate, if only to nip a strategic regulatory threat in the bud.

Ironically, this fraud will be exposed not by my warnings, but by a lawsuit resulting from DEP’s denial of a petition for rulemaking – and in response to a very weak and narrow DEP CO2 rule proposal.

As I wrote, that lawsuit:

will force the Murphy Attorney General’s Office to file legal briefs that finally and openly admit the fundamental legal flaws that I have long written about with respect to NJ’s climate laws and Gov. Murphy’s Executive Orders

Things happen in strange ways – and after 15 years of a mountain of lies.

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January 29th, 2022 No comments

Hummingbird don’t fly away fly away
Hummingbird don’t fly away fly away
Haven’t you noticed the days?
Somehow keep getting longer
And the spirit voices whisper in us all
Haven’t you noticed the rays?
The spirit Sun is stronger
And a new day is dawning
For us all.  ~~~ Hummingbird  (Seals and Crofts, 1973)

Music from back in the day is just as fine, but apologies for the poor image quality – these are highly cropped shots from a 70 mm lens about 100 feet away (in our winter home. Hummers just appeared here last week. We’ve seen a ruby red variety too):





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How The Global Warming Response Act Was Stripped

January 29th, 2022 No comments

Ugly Legislative History Reveals How The DEP Regulatory Teeth Were Removed

This post is for the legal eagles and those that like to get into the weeds – or those who seek to fact check my prior post:

Here is the NJ Legislature’s legislative history of the Global Warming Response Act.

Obviously, if I can do this analysis, the $600/hour corporate lawyers already have the litigation briefs drafted. DEP’s proposed CO2 rule is very likely to be successfully legally challenged for the reasons I outlined in my prior post.

To understand how badly the bill was gutted and why DEP does not have authority to regulate GHG emissions and enforce the GHG reduction aspirational goals, compare the version signed into law with the DEP regulatory powers and enforcement provisions in Section 4 and 5 of the introduced version, specifically:.

  • “enforceable limits”;
  • requirements on sources of greenhouse gas emissions to achieve these reductions”; 
  • “monitoring compliance with the emissions limits“; and
  • monitoring compliance with the requirements established “

All of those teeth were stripped out of the bill signed into law.

Here are the versions of the bill:

  • Introduced version (7/6/06);
  • stripped in the first Senate Committee Substitute (SCS) (5/4/07);
  • further stripped in the Second Senate Committee Substitute (SCS/SCS) (6/18/2007) and
  • final version, which was signed into law (6/18/07) – identical to the Senate SCS/SCS version passed on 6/18/07).

The compliance dates were all scaled back as well, leading to the kind of delays where a full 15 YEARS later, DEP is finally attempting to promulgate regulations.

Here are the links to the different versions of the bill so you can read them and confirm what I’ve written:

The text in boldface is from the introduced version of the bill – it was all deleted.

The enforcement and regulatory teeth were knocked out and DEP was put on a very short leash (i.e the DEP role was limited to “monitoring and reporting” emissions, not: 1) regulating them, or 2) setting emission limits, or 3) setting “enforceable limits”, or 4) adopting regulations that established “enforceable reductions”, and 5) not enforcing emission limits on individual sources with reference to compliance with the statewide goals. Even DEP’s powers over emissions from gas pipelines was limited to “monitoring”).

Here is the relevant deleted text from the Introduced version – S2114  (July 7, 2006) (Buono (D) Kean (R))

Section 4

4. a. No later than one year after the effective date of this act, the Department of Environmental Protection shall establish:

(1) inventories of the greenhouse gas emissions in the State;

(2) inventories of the 1990 levels of greenhouse gas emissions in the State;

(3) priorities for the reduction of types of greenhouse gas emissions to be reduced pursuant to this act; and

(4) by rules and regulations, adopted pursuant to the “Administrative Procedures Act” P.L. 1968, c.410 (C.52:14B-1 et seq.) the percentage reduction below the 1990 levels of greenhouse gas emissions to be achieved by the year 2020.

b. No later than January 1, 2020, the levels of greenhouse gas emissions in the State shall be reduced to the percentage below the 1990 levels of these emissions established by the department pursuant to subsection a. of this section.

Section 5

5. a. On or before January 1, 2008, the department shall adopt, pursuant to the “Administrative Procedures Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations establishing a greenhouse gas emissions monitoring and reduction program to:

(1) monitor and report greenhouse gas emissions levels in the State; and

(2) achieve Statewide the percentage reduction below the 1990 greenhouse gas emissions levels set by the department pursuant to section 4 of this act.

The rules and regulations shall also establish a series of enforceable limits that gradually reduce greenhouse gas emissions levels to the 2020 limit set by the department pursuant to section 4 of this act, and requirements on sources of greenhouse gas emissions to achieve these reductions. The first of these limits shall take effect on January 1, 2012, with additional limits taking effect on January 1 of subsequent years as determined by the department.

b. In developing these rules and regulations, the department shall take into account projected reductions in greenhouse gas emissions and other emissions reductions required pursuant to State emissions control programs otherwise established by law. The greenhouse gas emissions limits shall be expressed in total tons of allowable greenhouse gas emissions, expressed in carbon dioxide equivalents, and shall include, but shall not be limited to, all greenhouse gas emissions from the generation of electricity delivered by utilities and consumed in the State, whether generated in the State or imported into the State.

c. The rules and regulations adopted pursuant to subsection a. of this section shall identify all significant sources of greenhouse gas emissions in the State and shall provide for, but need not be limited to, the following:

(1) monitoring and reporting of existing emissions and changes in emissions over time from the sources identified by the department;

(2) monitoring compliance with the emissions limits established by the department;

(3) developing, implementing and enforcing requirements to achieve the required reductions;

(4) monitoring greenhouse gas emissions in the State;

(5) reporting the levels of those emissions and changes in those emissions levels annually, commencing on January 1, 2008; and

(6) monitoring compliance with the requirements established pursuant to paragraph (3) of this subsection and the progress towards attaining the required reductions determined pursuant to paragraph (2) of this subsection.

d. Pursuant to the rules and regulations adopted pursuant to subsection a. of this section, the department shall require reporting of the greenhouse gas emissions:

(1) associated with fossil fuels used in the State by entities that are manufacturers and distributors of fossil fuels, including, but not limited to, oil refineries, oil storage facilities, and natural gas pipelines;

(2) from any utility generating or delivering electricity consumed in the State, whether the electricity is generated in the State, or generated outside the State and imported into the State, and accounting for transmission line losses; and

(3) from any additional entities that are significant emitters of greenhouse gases, as determined by the department and appropriate to enable the department to monitor compliance with the emissions limits for greenhouse gases established pursuant to this act.

e. The rules and regulations also shall:

(1) distribute the costs and benefits of the program, including emission allowances, in a manner that is –

(a) equitable and maximizes the total benefit to the economy;

(b) does not disproportionately burden low-income and moderate-income households;

(c) provides compliance flexibility where appropriate; and

(d) ensures that entities that have voluntarily reduced their emissions prior to the implementation of the greenhouse gas emissions monitoring and reduction program receive appropriate consideration for emissions reductions achieved;

(2) ensure that the measures implemented to achieve reductions in greenhouse gas emissions do not result in direct or indirect effects or a cumulative impact that increase emissions of toxic air contaminants, identified by the department and the United States Environmental Protection Agency as hazardous air contaminants, or cause or contribute to a violation of a federal or State health-based ambient air quality standard in any community;

(3) evaluate emissions reduction opportunities based upon their cost-effectiveness and additional societal benefits, including, but not necessarily limited to, reductions in other air pollutants, energy security, and protection of the environment and public health;

(4) minimize the administrative burden of implementing and complying with the program;

(5) minimize displacement of emissions outside of the scope of the program; and

(6) where feasible, coordinate with other states and countries to reduce greenhouse gas emissions in a manner that does not conflict with State law and regulations.

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Who Stripped DEP Permit Authority From The Global Warming Response Act And Why Did They Do It?

January 28th, 2022 No comments

Murphy DEP CO2 Emissions Proposal Ignores Legislative and DEP Regulatory History

DEP CO2 Proposal Is Fatally Flawed Legally

Will Wise Men Avoid Upcoming Legal Train Wreck?

While its hard to admit because the man fired me, one of the few good things Gov. Whitman’s DEP Commissioner Bob Shinn did was to support DEP’s greenhouse gas emissions monitoring, inventory, and science program back in 1994-95. My good friend Mike Aucott was a pioneer in that effort.

At the time, there was no intention by Shinn or Whitman to actually regulate these GHG emissions, but it was important for DEP to begin to address the burgeoning climate emergency, which was obvious 30 years ago to anyone paying attention.

After 8 long years of “Open For Business” Whitman/Shinn DEP inaction on the climate front, in 2002 Gov. McGreevey assumed office and his DEP Commissioner Brad Campbell swiftly took regulatory action on climate. (full disclosure: I worked for Campbell, but not on climate).

In 2004, DEP proposed rules that defined GHG as “air contaminants” (i.e. pollutants) that were regulated under NJ’s State Air Pollutant Control Act. The proposal was adopted by DEP in 2005. That DEP regulatory move anticipated the groundbreaking US Supreme Court decision in the 2007 Massachusetts case, which basically found that GHG were pollutants regulated by EPA under the federal Clean Air Act.

But NJ’s major powerful corporate polluters – PSE&G, the Chemistry Council, NJ Petroleum Council, NJ BIA, Chamber of Commerce, Big Pharma – fully understood the implications of Campbell DEP’s regulatory move. And they used that power to force Campbell to stand down and back off any DEP regulation of their GHG emissions, including paying costly DEP air pollution emission fees (DEP’s current air pollution emission fees are $130 per ton).

Specifically, Campbell’s DEP was forced to explicitly exempt GHG emissions from DEP air permit emissions and fee requirements. The power of corporate polluters humiliated Campbell.

Here it is: (DEP, from the NJ Register)

It was not the Department’s intent to establish CO2 emissions permitting and regulatory requirements through the proposed amendments. The Department has modified the rules on adoption to except CO2 from existing air pollution regulatory and reporting requirements. ~~~ NJ DEP, 2005

Subsequently, just 2 years later, those same powerful corporate polluters made sure that DEP was not authorized to regulate GHG emissions by the 2007 Global Warming Response Act.

Current Murphy DEP Commissioner LaTourette has ignored all this history and it shows in DEP’s proposed CO2 emission rule for certain power plants that generate power for the grid.

Here’s how DEP now glosses over and obfuscates that whole political, legal and regulatory history:

In 2005, the Department amended the definition of “distillates of air” at N.J.A.C. 7:27- 8.1, 17.1, 19.1, and 21.1 in order to classify CO2 as an air contaminant, thereby placing the regulated community on notice that the Department would take future regulatory actions pertaining to CO2. See 36 N.J.R. 4607(a); 37 N.J.R. 4415(a). Consistent with the 2005 amendments, the Department proposes to define the terms “air contaminant” and “distillates of air” at existing N.J.A.C. 7:27-1 and new N.J.A.C. 7:27F-1.3, Definitions, so that it is clear that CO2 is not included in the definition of “distillate of air.” The effect of deleting N.J.A.C. 7:27- 1.36(b) and defining “distillate of air” is to classify CO2 as an “air contaminant,” which is subject to Department regulation.

LaTourette has a big ego – he likes to pretend his DEP was the “first” to issue a climate science Report and the first to regulate GHG emissions. But he stokes his ego and ignores history at our peril.

Clearly, DEP experts are fully aware of this history – and that shows by the fact that the DEP CO2 proposal explicitly revokes the 2005 Campbell DEP exemptions from DEP permit and fee authority. (ha! I wonder if by revoking this 2005 exemption, DEP has indirectly imposed $130 per ton emission fees? If so, DEP failed to discuss that in the Economic Impact section of the proposal).

[Even more revealing is the fact that the DEP proposal seeks to revoke the 2005 permit and emissions fee exemptions by stealth! DEP does this with absolutely no discussion in the background text of the proposal. Instead, they do it by bracketing (repealing) the text of the 2005 exemptions see DEP proposal on page 109. – and this vague statement on page 9:

the Department proposes to amend N.J.A.C. 7:27-1.36 to remove the language indicating that CO2 emissions (actual or potential) are not a basis for, among other things, a requirement to include emission information in a permit application, a permit limitation, or a fee in a permit.

But, while DEP implicitly recognizes this regulatory history by revoking the 2005 exemptions, they completely fail to address the legislative history or understand WHY DEP was forced to issue those 2005 exemptions and WHY their regulatory authority was limited by the 2007 Global Warming Response Act.

That failure to recognize the legislative history is exposed by the fact that the DEP CO2 emissions proposal is based on the Global Warming Response Act, instead of the legal authority DEP asserted in 2005 under the NJ Air Pollution Control Act.

This is a fatal legal flaw that is certain to be exploited by the corporate lawyers representing NJ polluters.

I wrote the email below to DEP Commissioner LaTourette, with a copy to GWRA sponsor Senator Bob Smith. Will these wise men avoid the obvious upcoming legal train wreck?


Cc: senbsmith <>

Date: 01/28/2022 11:52 AM

Subject: Legal Flaw in CO2 proposal

Dear Commissioner LaTourette:

I write to advise you of an inadvertent but fatal legal flaw in DEP’s proposed CO2 emissions rule for EGU’s.

As a statutory basis for regulatory authority to limit CO2 emissions, the Department relied primarily – if not exclusively – on the 2007 Global Warming Response Act, as amended.

However, as you may know, there are strong legal arguments that the GWRA intentionally did not authorize the DEP to regulate GHG emissions or establish emission limits for permitted sources.

This can be confirmed by reviewing the legislative history, specifically by comparing the introduced version of the bill – which expressly provided authority to DEP to regulate emissions – with the final version enacted into law. The enacted version stripped this authority. The enacted version limited DEP to emissions monitoring and reporting functions. I strongly urge you to review that legislative history and intent argument.

There are two conflicting explanations for why the legislature stripped this authority and Gov. Corzine signed the bill into law:

1) some argue that it was stripped because the DEP already had pre-existing authority pursuant to the NJ Air Pollution Control Act (NJ APCA). This view is supported by the fact that in 2004/2005, DEP asserted that authority and proposed and adopted regulations that defined GHG as a “air contaminants” (pollutants) regulated pursuant to the NJ APCA. The GWRA also states that it dos not limit other DEP authority. This view is also supported by the US Supreme Court’s Massachusetts decision, issued just months before passage of the NJ GWRA, which essentially found that GHG were regulated pollutants under the federal Clean Air Act.

2) but other’s argue that it was stripped intentionally to prevent DEP from using regulatory authority to adopt emission standards and regulate GHJG emissions via permits to individual facilities under the NJ APCA and delegated federal CAA. This view is supported by the passage of the RGGI program, which relies on market based trading, not point source permitting, to control GHG emissions from certain point sources (EGU’s). This view also is supported by DEP’s 2005 rulemaking, which explicitly exempted point sources from DEP air permit and emission fee requirements.

While the GWRA amends and has been codified in the NJ APCA, there are major distinctions in DEP’a authority to regulate activities, emissions, and the factors DEP may consider in any regulatory scheme.

I am not a lawyer, but was involved during the legislative debate on the bill. I see credible arguments supporting both views.

Regardless, this is not a legal risk worth taking, especially in the current legal and political climate, where litigation risk is virtually 100%.

Accordingly, in order to avoid this legal risk, I strongly urge you to revoke and re-propose the rule.

The new proposal should be based on the DEP’s regulatory authority under the NJ APCA and rely on the GWRA only for policy guidance – conceptually like the relationship between a local Master Plan and zoning ordinance under the NJ MLUL.

Of course, nothing here provides any support for the scope of the DEP proposal (sources and pollutants), the actual emission rates proposed, and the GHG emissions reductions and timing that would result from the proposal.

DEP can and must do much better than that, even to conform to Gov. Murphy.s Executive Order (50X30).

I am available to provide additional support at your request, but the arguments I make are all in the text of the legislation, public record, and legislative history.

I am copying Senator Smith, a primary bill sponsor, to urge his guidance.

Bill Wolfe

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