WolfeNotes.com

Murphy’s Executive Order Designed To Avoid Real Reforms On Chemical Safety

Poorly Trained And Equipped Local Governments Remain In Charge of Chemical Safety

No New Chemical Plant Siting, Regulatory Standards, Or Protections

Massive Loopholes In NJ Chemical Safety Laws Remain

Or maybe seconds from annihilation, yeah

But no one stopped to think about the people

Or just how they would survive ….

when it come to people’s safety

money wins out every time. ~~~ We Almost Lost Detroit (Gil Scott-Heron)

In a lame response to the Passaic chemical fire disaster, NJ Gov.Murphy issued another toothless Executive Order #284.

The Gov.’s Executive Order attempts to breathe life into a failed 35 year old Executive Order issued way back in 1987 by Gov. Tom Kean that abdicated State authority and delegated chemical plant safety and emergency response planning to local governments.

As I’ve written, the National Transportation Safety Board (NTSB) severely criticized NJ’s “home rule” approach to chemical plant safety and the dissemination of inaccurate and false information in the Paulsboro NJ toxic train derailment that forced community evacuation.

The NTSB made the following findings in a scathingly critical Report:

• About 7:30 a.m., police radio transmissions suggested that the vapor cloud was “nontoxic.”  The police then changed the evacuation orders from mandatory evacuation to shelter-in-place. The police department did not become aware that vinyl chloride had been released until 8:30 a.m., just before the first incident command briefing. The situation was further confused when, at 10:30 a.m., the NJDEP publically (sic) announced that the hazard had dissipated. Therefore, the community protective measures were based on incorrect information about the released material.

• The NTSB concludes that the dissemination of inaccurate public information about the release of vinyl chloride revealed the lack of an effective system for communicating to the public accurate information about the current situation following the accident.  (@ page 41

• These statistics indicate that many communities in the state still do not have NJSP-OEM-approved EOPs and that these communities are likely unprepared for emergencies that could occur in their jurisdictions, as was the Paulsboro community. This problem is  amplified by New Jersey home rule laws that keep authority for managing an incident at the lowest local government level, thus discouraging regional and state authorities from intervening in an incident, even when faced with obvious response deficiencies;

• Fact-based decisions regarding the community exposure did not occur until the unified command was established at 1:00 p.m., when the federal on-scene coordinator directed more information to be gathered about community exposures. (@ p.42

• Like many small fire departments throughout the country, the Paulsboro Fire Department was unprepared for large-scale hazardous material emergency responses. The frequency of hazardous materials train traffic through the borough would have suggested a higher level of awareness and preparedness. The firefighters need to understand how to respond to incidents involving such hazards and advise the community on whether to evacuate or shelter in place if a release does occur. (@p.47)

• The NTSB concludes that the New Jersey firefighter certification and training requirements were not effective as demonstrated by the failure of emergency responders to conduct operations in accordance with established health and safety protocols and OSHA HAZWOPER standards, and their lack of familiarity with available tools to evaluate toxic exposure threats.  (@p.46)

But hey, the Gov. says you can now have a “reading room” to briefly examine the chemical industry prepared “kill zone” maps (technically called “off site consequence analysis”):(EO 284, emphasis mine)

Make the ERP and other 11044 documents available to the general public in a reading room during normal business hours or through another secure method as may be prescribed by the SERC in the future.

Doesn’t that make you feel so safe? (snark) You have a “right to know” essentially nothing!

One has to get deep into the weeds of EPA Technical Guidance Documents (Appendix D, page D-8) to find out what’s at stake, euphemistically referred to as certain “irreversible health effects”:

Of course, NJ Spotlight fell for the Gov.’s cosmetic and toothless diversion, which is superficial and does not begin to scratch the surface of the reforms that are required. They even let the Gov. get away with this whopper, where the Gov.’s people couldn’t even name “recent emergencies”:

“The updates to the SERC have been in the works for many months and are not related to recent emergencies. Rather, the changes are consistent with federal emergency planning requirements. The updates act to simplify the process for emergency planning committees and ensures that key constituencies are represented on said committees,” the office said in a statement.

That statement contradicts DEP Commissioner LaTourette’s Jan. 21 remarks on NJ Spotlight that regulatory reforms were called for.

And even if that evasive statement is true, that means NJ delayed federally required reforms that may have contributed to “recent emergencies”!

While Spotlight’s prior TV coverage was pretty good – and it quoted DEP Commissioner downplaying risks by using legalistic terminology for “chemical catastrophe”  – even the ACLU EJ and NJ WEC advocates included in that piece failed to call for real reforms.

So, we’ll again warn the people (for our prior warnings, see:

• Passaic Chemical Fire Raises Concerns About DEP Emergency Response And Chemical Safety Issues

• What The People Of Passaic NJ Didn’t Know Almost Killed Them

These totally unacceptable risks are concentrated in NJ’s poor and minority communities, yet the highly touted NJ environmental justice law does not apply to chemical safety issues, e.g. the DEP Right To Know, Pollution Prevention, or Toxic Catastrophe Prevention Acts.

• The Corrupt Political Power Of The NJ Chemistry Council, NJ Petroleum Council, And Big Pharma Is Blocking Common Sense Land Use And Chemical Safety Protections

NJ laws and DEP regulations under the NJ Worker and Community Right To Know Act and NJ Toxic Catastrophe Prevention Act and Environmental Justice law must be strengthened, at a minimum, as follows (bullets per my recent Jan. 18, 2022 letter to Senate Environment Committee Chairman Bob Smith scroll down to read it):

These are what real reforms reforms would look like:

I)  Unacceptable Risk Standard and Siting Restrictions, Phase Outs, And Bans

II)  Stronger State Standards and Oversight – Rescind Local Delegations

III)  Expansion of TCPA Protections Into RTK Program

IV)  Public Disclosure Of “Kill Zone” Risk Maps

V)  Immediate Incident Response Command Center And Real Time Disclosure Of All Monitoring Data

VI)  Eliminate The Spill Act $50 Million Cap On Liability

VII)  Additional Training, Certification, And State Oversight

VIII)  Eliminate Current Law Protections Of Trade Secrets

***IX)  Close the Gaping Loopholes In The Environmental Justice Law

The EJ law does not apply to DEP reviews and regulations under the Toxic Catastrophe Prevention Act (TCPA), the Worker and Community Right to Know Act (RTK) and State remediation law regarding cleanup, redevelopment, and NRD compensation and/or restoration of contaminated sites.

[End Note: Here’s a critical equation, relevant to scores of NJ communities, that’s you’ll never see in a High School algebra or chemistry class: (EPA Off Site Consequence Analysis – Appendix C):

Life Does Imitate Art

Old and in the way, that’s what I heard them say
They used to heed the words he said, but that was yesterday
Gold will turn to gray and youth will fade away
They’ll never care about you, call you old and in the way”~~~ Old And In The Way (Garcia/Grisman Band)

That album was one of my favorites, recorded in 1973 and released in 1975, the year I graduated High School.

I sometimes would fondly think of my grandfather when listening to it.

So, in that spirit, I write this brief and blunt warning note to NJ climate activists with the Empower NJ campaign who are now drafting a strategy for 2022 and the Murphy administration:

Until you can admit that NJ’s climate laws are toothless aspirational frauds, nothing real can happen.

I outlined that – again!!!!!! – in this recent post.

“They used to heed the words he said...”

We’re on the bus!

 and we’re not the only ones!

And Pretty Soon, The Wheels Are Coming Off

Climate Lawsuit Exposes The Sham Of NJ Climate Laws & Fraud Of Fake Green Groups

Upcoming Industry Lawsuit Sure To Put The Final Nail In The Coffin

Climate activists (EMPOWER NJ) have announced a lawsuit against the Murphy administration challenging DEP’s denial of their petition for rulemaking designed to force DEP to adopt enforceable regulations on greenhouse gas emissions, see NJ Spotlight story today.

We wrote about that petition to DEP several times, most recently in this post:

• Murphy DEP Denial Of Climate Petition Exposes The Sham Of Murphy’s Climate Rhetoric And Executive Orders

I don’t want to repeat all those arguments today, but I do want to make a few very quick observations – and a painful prediction – that clarify issues raised by the lawsuit, flaws in the news coverage, and future legal and political prospects.

I)  Lawsuit

I haven’t read the legal arguments yet, but I assume that the lawsuit will challenge DEP’s petition denial based on conflicts with State climate laws and Murphy’s Executive Orders and as an “arbitrary and capricious” violation of the NJ Administrative Procedures Act.

As such, it 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, specifically:

1) The Global Warming Response Act (and it’s recent amendment) are toothless, in that they do not establish enforceable greenhouse gas emission reduction goals and do not authorize DEP to regulate greenhouse gas emissions from individual GHG emission sources, in relation to the goals.

In fact, just the opposite: a very strong legal argument can (and will) be made that:

a) the GWRA’s 80% emission reduction goals are purely aspirational – as are the amendments which call for interim “benchmarks”; and

b) the legislature eliminated DEP’s regulatory authority to control GHG emissions, on both a statewide basis (i.e. overall goals) and on an individual GHG emission source level via air permit emission limits.

Instead, the legislature provided that the market based Regional Greenhouse Gas Initiative (RGGI) is the sole State program for addressing GHG emissions, not DEP regulatory authority.

2) Gov. Murphy’s various Executive Orders are not legally binding on the private sector, that they can not expand DEP’s authority beyond what’s in statute, that they can not legally bind DEP’s discretion (e.g. by forcing DEP to propose regulations that follow the interim emission reduction goals or timetables in the Ex. Order), and that any violation of them by DEP is not a legally actionable matter in a Court of law, but rather an internal Executive Branch management issue.

In other words, climate activists, the media, and the public have been duped since the 2007 passage of the Global Warming Response Act. They are doubly duped by being told that Gov. Murphy’s Executive Orders were meaningful (instead of the legal equivalent of a press release).

That fraud will all now be made absolutely clear, and it will be revealed by the Murphy Attorney General in legal briefs. (A similar thing happened when the Biden administration’s lie about 80 million acres of Gulf oil & gas leases was exposed by legal briefs.)

These tragic legal realities collide with the naive and ill informed assumptions of the EMPOWER activists:

The failure to establish such benchmarks, the coalition argued, ignores Gov. Phil Murphy’s own executive order issued in November 2021, calling on the state to reduce carbon pollution 50% below 2006 levels by 2030. The coalition also argued the denial flouts amendments to the Global Warming Response Act signed by Murphy in 2019 requiring interim benchmarks be established to achieve the goal of reducing emissions by 80% by 2050.

“There are only two ways to look at DEP’s outright denial of our petition: DEP has gone rogue or this administration is uninterested in pursuing its own stated policies and state law,’’ said John Reichman, chair of BlueWaveNJ’s environment committee and a member of the coalition, Empower NJ.

No, there are 3 ways: the third is that the NJ law is toothless.

The DEP has not gone rogue. DEP is led by a former corporate lawyer who knows the law and follows orders.

The Murphy administration – like their predecessors – has always been spouting slogans and they have always known that NJ climate laws are toothless.

Another media outlet similarly exposes this contradiction

“Biden set up enforceable targets. Many other states have also set legally enforceable targets. New Jersey is an outlier, where there’s no rules or regulations at DEP to actually enforce or achieve these targets,” said Matt Smith, NJ director of Food and Water Watch.

NJ law does not empower DEP to set enforceable “targets” or permit specific GHG emission limits.

President Biden’s “targets” are not enforceable. They are just as aspirational and fraudulent as Gov. Murphy’s are.

The real comparison that EMPOWER ignored is right next door in New York, where there are legally enforceable standards, which, as I’ve written, were just used by NY DEC to deny air permits for new gas plants. WAKE UP!

II)  Spotlight coverage

As I’ve written, NJ Spotlight failed to cover the EMPOWER petition when it mattered, ie. when it was filed and when DEP postponed a decision just before the election. This is important, because it is possible that Gov. Murphy’s narrow margin of victory in the election was provided by voters who mistakenly believed that he was serious about addressing the climate crisis.

It is also interesting to note a very revealing fact in how they source today’s lawsuit story.

I haven’t conducted the analysis but would reliably estimate that well over 90% of Spotlight stories on climate and energy rely on just 3 environmental sources and that all these sources almost always praise Gov. Murphy and DEP and BPU: Doug O’Malley, Ed Potosnak, and Tom Gilbert.

But today, Tom Johnson uses Tracy Carluccio from Delaware Riverkeeper:

“The Governor and his DEP must recognize the urgency of measurably reduce greenhouse gas emissions and they must specifically demonstrate how NJ plans to achieve what Gov. Murphy says he wants — a 50 percent cut back by 2030,’’ said Tracy Carluccio, deputy director of the Delaware Riverkeeper Network.

Why didn’t Tom put Murphy cheerleaders Doug O’Malley, Ed Potosnak, and Tom Gilbert on the spot and force them to go on the record?

So, where are the Murphy sycophants?

III)  Future Prospects

Legally, future prospects are bleak and getting bleaker.

At the national level, the US Supreme Court is on the verge of stripping EPA of jurisdiction to regulate greenhouse gas emissions.

A similar legal attack is very likely to be mounted in NJ that challenges DEP’s recently proposed CO2 emission standards for electric generating units.

[Ironically, DEP’s proposed CO2 emission standards were not even proposed pursuant to the Global Warming Response Act. The DEP’s legal authority and basis for the proposal is the NJ Air Pollution Control Act (traditional BACT based). But DEP does such a lousy job explaining that and puts so much bullshit in the proposal about the GWRA that industry can assemble a plausible legal argument that DEP did. DEP may even think that the GWRA authorizes emission standards! DEP seems to think they can wave a magic wand called a “comprehensive strategy” and do whatever they want. We used to write what were called “Basis And Background” documents at DEP to make the legal basis clear. But DEP seems to have simply assumed they have unambiguous legal authority. DEP basically just cited the GWRA on the cover sheet of the proposal, with virtually no legal basis provided. That was a huge legal mistake.

Amazingly, here is all that DEP wrote about the complex relationship between statewide emission reduction “goals” of the GWRA and site specific individual CO2 emission limits on a single discrete category of emissions sources (EGU’s) for a single global warming gas (CO2): (emphasis mine)

“Comprehensive strategy”? What are the “relevant provisions”? Are those “relevant provisions” authorizing and applicable provisions? And it is not at all clear that the GWRA “requires” “New Jersey” (who in NJ? How?) to reduce short lived pollutants – and what is the distinction between all GWRA pollutants and short lived ones? And where is the authority delegated to the DEP to set emission standards and enforce them in individual air permits? On top of that, there is the legislative history of the GWRA (where the introduced version of the bill included DEP regulatory and permit authority, which was deleted. Subsequently, RGGI was enacted. This is certainly not a slam dunk legal case that can be asserted in a single vague paragraph. Heads should roll at DEP for this schlock legal work.)

Industry will challenge DEP’s regulations despite the fact that they are lax and will have very little if any impact.

Here’s where the EMPOWER NJ activists get it exactly right:

“None of the administration’s existing or proposed climate rules will prevent the continued proliferation of dirty pipelines, power plants and other new sources of climate destroying pollution in New Jersey. The proposed power plant rule doesn’t even require polluters to use the best available technology, let alone do anything to stop new fossil fuel plants, like the one proposed by the Passaic Valley Sewerage Commission in Newark, from being approved”, added Matt Smith, NJ State Director for Food & Water Watch.

The corporate GHG polluters are willing to allow RGGI to remain in place, because RGGI not only does not cap total emissions it actually shields individual polluters from DEP regulation and merely requires that they purchase GHG emissions allowances, which are very small cost and amount to business as usual.

But corporate polluters simply can not accept DEP regulatory authority over their emissions. Period.

Should DEP be allowed to regulate GHG emissions now, a future DEP Commissioner with a spine – unlike the current former corporate lawyer heading DEP – might take the GWRA goals seriously and establish an enforceable Statewide GHG emissions cap; ratchet down on current GHG emissions; and block issuance of permits for new fossil infrastructure.

[Update: and just imagine if DEP proposed land use regulations (REAL regulations, not the FAKE ones that will be proposed later this year) that mandated that any new buildings or developments seeking DEP land use or all other permits and approvals had to be electric powered, install solar, and provide emissions offsets for their climate footprints!

Imagine if DEP EV programs and diesel rules actually mandated that all commercial vehicle fleets be converted to electric by 2030!

Imagine if DEP’s greenhouse gas emissions rules regulated methane – which they don’t – and regulated all sources – not just 10% that produce electric power for the grid – and lifecycle impacts – which they don’t even mention – and provided clear authority for DEP to deny permits based on failure to meet GWRA goals – which they don’t – and mandated the shutdown of major sources of GHG emissions that are no longer necessary, like garbage incinerators, sludge incinerators and medical waste incinerators – which they don’t. 

Imagine if DEP used land use permit renewal authority to mandate that buildings be electrified, energy efficient, and solar powered.

Imagine if DEP used air permit renewal authority to mandate reductions in GHG emissions to actually attain the GWRA goals.

Imagine if DEP imposed $130 per ton fees on greenhouse gas emissions that they mandate for other air pollutants.

Imagine if DEP land use regulations mandated that any land conversion or deforestation that reduced carbon sequestration had to be offset or mitigated by a 5 – 1 ratio.

Imagine if DEP land use regulations required that every large flat roof had and parking lot had to have solar.

That every large employer and shopping center had to provide EV recharging stations.

Just imagine what DEP could do to reduce emissions if they had and seriously used regulatory authority!

One has to imagine all this because DEP has no plans at all to do any of this.

So why aren’t NJ climate activists demanding ANY of this? ~~~ end update]

Corporate polluters simply will not tolerate those risks and will sue the Murphy DEP to block any possibility of that in the future.

On the NJ State level, as I noted above, the EMPOWER lawsuit will fail. The only question is whether the Court will mask the underlying substantive legal flaws I’ve noted above behind a narrow administrative law procedural “arbitrary and capricious” decision, where they defer to DEP expertise. Regardless, the AG’s briefs will finally take the mask off and expose the fraud.

Politically, as I’ve written, the green masks are off – of both Murphy and his sycophants – and now this lawsuit means that the gloves are off.

Because: a) Gov. Murphy can no longer hide behind the fake green cover provided by his sycophants;, b) it is becoming increasingly obvious that his DEP  Commissioner is a corporate fraud; c) the media smells blood in the water; d) the problems are all getting worse; d) there are several decisions in the pipeline that will further expose the fraud; and e) the AG will be forced to let the cat out of the bag – this all means that the wheels will come off in the near future.

Bank on it.

It pains me to write this, but the sooner the dire truth is known, perhaps that will prompt the activist to get out in the streets, end the inside DEP “Stakeholder” games, force the media to warn the people, and discredit the Murphy green cheerleaders and sycophants who provide political cover and false hope.

[End Note: Not all the Green masks are off.

I just got a hold of the Empower NJ Coalition press release.

Notably absent from that press release are Coalition members Doug O’Malley (Environment NJ), Dave Pringle (consultant, former CWA), and Amy Goldsmith (CWA).

Their absence is not an accident. I’ve worked with them for many years and all of them are always very eager for any press coverage and fight like hell to get a quote in a press release.

It means that they are afraid of antagonizing the Murphy administration and it signals that they are still loyal sycophants in the Murphy Green cover operation. Pringle is a flagrant collaborator, as his role in the Christie administration and his recent manipulations on the Pinelands nominees reveal. O’Malley is hopelessly corrupt as is Goldsmith.

Shame on them.

Chris Hedges Relies On Corporate Propaganda To Attack “Regulatory Dark Matter”

It’s bad enough that I have to constantly battle clueless, misguided, and/or corrupt conservation groups for how they undermine protective environmental regulation and stenographic “journalists” who simply ignore regulation.

I find myself in a constant battle to educate on the fundamentals of regulation, which have been effectively abandoned by all the corporate Foundation Funded conservation and environmental groups.

But now even Socialist friends have drunk the Libertarian anti-regulatory corporate Kool-aid?

If I had heroes, Chris Hedges would be one, which is why it pained me so to read his most recent column, in which he wrote perhaps the worst sentence of his career:

The Democrats have been full partners in the dismantling of our democracy, refusing to banish dark and corporate money from the electoral process and governing, as Obama did, through presidential executive actions, agency “guidance,” notices and other regulatory dark matter that bypass Congress.

And he linked to a Competitive Enterprise Institute corporate propaganda piece to supported it!

In his uncharacteristically unhinged fervor to attack Democrats, Hedges wrote a disgustingly libertarian sentence worthy of a Glen Greenwald or Matt Taibbi.

This is stunning, because Hedges often praises his hero, Ralph Nader, who was a master of “regulatory dark matter”.

Hedges has also written critically many times about the infamous corporate strategy in the Powell Memo, which was corporate America’s attack on “regulatory dark matter”.

And Hedges must know that right now, Steve Bannon , Brietbart, the Koch networks, ALEC , The Federalist Society and every right wing corporate think tank are attacking the “administrative state” and its “regulatory dark matter”. 

The Supreme Court – led by Gorsuch and Kavanaugh – is about to dismantle the legal basis for “regulatory dark matter” by stripping EPA of power to regulate greenhouse gas emissions, the same way they just gutted OSHA’s attempt to mandate vaccines. 

The right is on the verge of dismantling the “administrative state”, a goal they have sought since the New Deal.

This attack goes back to FDR coup “Business Plot” and the Fascist Liberty League:

The most powerful of FDR’s conservative opponents eventually came together as the American Liberty League.  Prominent industrialists and financiers formed the Liberty League in August of 1934.  Democrats such as 1924 presidential nominee John W. Davis, 1928 presidential nominee Alfred Smith, and former party chairman John J. Raskob joined corporate leaders such as Alfred P. Sloan of General Motors, the DuPont family, and others to oppose the administration in advance of the year’s congressional elections.  At its height, the League claimed 125,000 members.

The Liberty League attacked the New Deal as a socialistic experiment.  The group railed against “regimentation” and supposed attacks upon individual liberties.

The amazing thing is that Hedges knows and has even written about this history.

It seems like US Senator Sheldon Whitehouse (D-RI) is the only main stream political figure who understands what’s going on and is willing to speak out on it. (read his whole series on the Powell Memo & “The Scheme”)

Hedges recently interviewed political philosopher and author Wendy Brown – author of the superb book “In The Ruins Of Neoliberalism” – who briefed him on the history and destruction wrought by the sustained right wing ideological attack on core policy elements like “regulatory dark matter”, so he knows the intellectual implications.

What the hell was Hedges thinking? Chris, take that back!

I fired off this email to my friend Hedges:

Chris – That sentence grossly missed the mark – and with a link to a CEI Report?

Ralph Nader was a champion of “regulatory dark matter” – and it’s only right wing libertarian’s that seek the “dismantling off the administrative state” who used such red meat rhetoric to undermine regulation.

I too am a regulatory maniac, and proud of it – none of it “dark matter” but done openly via formal administrative process that has a hell of a lot more public involvement than legislation through Congress does.

I take this shit personally. It hurts when heroes fail.