WolfeNotes.com

Bill Would Amend Global Warming Response Act And NJ Air Pollution Control Act

Authorizes DEP To Regulate Air Pollution Sources To Meet Goals Of Act

Bill Effectively Kills Murphy DEP Proposed CO2 Rule

After 15 years of avoidance, NJ State lawmakers finally have acknowledged that the greenhouse gas emission reduction goals of the landmark 2007 Global Warming Response Act (GWRA) were aspirational and the law lacked regulatory teeth to implement the goals.

For 15 years I’ve made that argument and urged lawmakers to put teeth in the law. I summarized that torturous legislative and regulatory history in these posts, see:

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

• A Decade After Passage of The NJ Global Warming Response Act: From “Toothless” to a “Dead Letter”

• Senator Smith Urged To Put Teeth In Proposed Climate Legislation

Senate Environment Committee Chairman Bob Smith recently (on February 14, 2022) introduced legislation that would authorize DEP to regulate certain air pollution sources in order to meet the goals of the act (read the bill, S1602 (Smith/Greenstein))

Senator Smith reached out to me this week to give me a heads up that he introduced the bill. While he provided no explanation of his intent or legislative strategy or schedule for hearings on the bill, he graciously went out of his way to remind me that I had most recently asked him to draft the legislation back in December and that I pledged to support the bill.

[Note: I had no role in drafting the bill and did not review it prior to introduction.]

Since DEP proposed a CO2 emissions rule, I’ve sent Senator Smith and DEP Commissioner LaTourette a series of emails explaining the lack of legislative authority in the GWRA for DEP to regulate emissions and thus illustrate why the DEP proposal was fatally flawed legally and must be withdrawn.

Given that lack of authority, I’ve urged DEP to withdraw the rule proposal and for Senator Smith to introduce and pass legislation authorizing DEP to regulate emissions to meet the goals of the Act, similar to New York State’s climate law.

The recent decision by the US Supreme Court to review US EPA’s authority to regulate GHG emissions under the federal Clean Air Act highlighted exactly the arguments I have been making.

I urgently warned Senator Smith and DEP Commissioner LaTourette that should the US Supreme Court strike down EPA’s authority, that certainly would spawn parallel litigation attack on DEP’s CO2 rule proposal.

So, I’m glad that Senator Smith finally listened.

But, we are in a very dangerous legal and political situation.

The introduction of the bill effectively kills and will force withdrawal of the Murphy DEP’s proposed CO2 rule, because the existence of the bill – (passage not required) – makes it clear that DEP lacks legislative authorization to regulate GHG emissions under both the GWRA and the NJ Air Pollution Control Act.

The bill basically brings DEP back to square one in attempting to regulate GHG emissions to meet the emission reduction goals of the GWRA.

In order to for DEP to proceed on reducing GHG emissions, the bill – in some form – now must pass. Must pass.

Today, is our introductory note.

We hope it will spur media coverage and an aggressive campaign of support by climate activists and environmental groups.

In our next posts, we will discuss the merits of the bill, suggest amendments, and outline a strategy going forward.

[End Note: For those who think I’m just Old and In The Way or, paraphrasing Twain, who may have prematurely celebrated my demise:

This bill shows that I’m still exerting more influence than environmental groups with large staffs and multi-million budgets and out-smarting corporate lobbyists who make big money (from 2,500 miles away in the desert with an intermittent and extremely slow internet connection!).

Poorly Planned And Regulated Development & Climate Change Are Creating Catastrophic Risks

NJ Hazard Mitigation Plan Documents and Maps Wildfire Hazards

Joint Petition For Rulemaking Urges Wildfire Restrictions and Retrofit Requirements

DEP has done a ton of press (and multiple promotional social media/Tweets), DEP Commissioner LaTourette testified to the Senate on February 10, and NJ media recently have highlighted the risks of wildfire, particularly how those risks are increasing dramatically as a result of climate change and exploding new development in the “wild-urban interface”.

In order to be eligible for hundreds of millions of dollars in federal disaster assistance funding from FEMA – including from a wildfire disaster – NJ is required to adopt a “Hazard Mitigation Plan” that outlines the risks and provides a planning framework for managing and reducing those risk.

The map above is from NJ’s most recent Hazard Mitigation Plan (2019).

In order to hold the Murphy administration accountable to its own DEP Commissioner’s legislative testimony, climate science, and Hazard Mitigation Plan, I submitted a joint petition for rulemaking to pressure the DEP, Pinelands Commission and Highlands Council to reduce wildfire risk and impacts by limiting new development and requiring fire prevention retrofits of existing development in extremely hazardous locations that are prone to wildfire.

DEP must publish a Public Notice of the filing of the petition and publish a formal response.

I’m not optimistic about the chances of these recommendations being adopted, but it is a first step. It sure beats cheerleading, which is about all NJ environmental groups seem to be doing these days.

This petition is timely in light of upcoming DEP Climate PACT REAL land use rules.

I plan on filing additional petitions seeking to reduce the risks, impacts, and occurrences of repeat flooding and storm damage, particularly in light of climate change driven sea level rise, storm surge, and more frequent and intense storms (including inundation and increased flooding). 

This will force the Murphy DEP to put regulatory teeth that back up all their rhetoric about wildfire risks, “climate adaptation” and “resilience”.

Dear DEP Commissioner LaTourette; Pinelands Commission; and Highlands Council:

This letter petition is filed via email pursuant to N.J.S.A. 52:14B-4, which provides that:

“(f) An interested person may petition an agency to adopt a new rule, or amend or repeal any existing rule. Each agency shall prescribe by rule the form for the petition and the procedure for the submission, consideration and disposition of the petition. The petition shall state clearly and concisely:

(1)  The substance or nature of the rule-making which is requested;

(2)  The reasons for the request and the petitioner’s interest in the request;

(3)  References to the authority of the agency to take the requested action.”

Accordingly, I hereby jointly petition the Department, the Pinelands Commission, and the Highlands Council for rulemaking as follows.

(1)  The substance or nature of the rule-making which is requested

On February 10, 2022, DEP Commissioner LaTourette testified before the Senate Environment Committee to the effect, among other things, that he was “shocked” by the number of wildfires in NJ last year (apparently over 900) and that, according to the best available DEP science, wildfire risks and impacts were projected to increase due to climate change.

According to the most recent NJ Hazard Mitigation Plan (2019)

https://nj.gov/njoem/mitigation/pdf/2019/mit2019_section5-12_Wildfire.pdf

Section 5.12.1:

“New Jersey’s high population density has created land use pressures in which more people are moving from urban areas to build homes in rural wildland areas. With more people living in the State’s wildlands, the number of fires started could increase. A potentially explosive combination is created when hazardous wildland fuels interface home development, and an increased risk of human-caused ignition come together under extreme fire weather conditions.”

5.12.2.1 NEW JERSEY PINELANDS AND PINE BARRENS

“The New Jersey Pinelands is a fire-adapted forest ecosystem that depends on wildfire for reproduction and the control of fuel buildup. This forest community is one of the most hazardous wildland fuel types in the nation. Pinelands fires burn extremely hot and spread rapidly. New Jersey has a high population density and more people are moving from urban areas to build homes in rural wildland areas. With more people living in and enjoying the State’s wildlands for various forms of recreation, the number of potential fire starts and the seriousness of their consequences increases. A potentially explosive combination is created when hazardous wildland fuels, home development, and an increased risk of human-caused ignition come together under extreme fire weather conditions.

5.12.2 LOCATION

“The ecosystems that are most susceptible to the hazard are pitch pine, scrub oak, and oak forests. These are the vegetative fuels that are the most flammable.

In New Jersey’s north, northern hardwood, white pine, eastern hemlock, mixed oak, and a variety of other species including isolated stands of red spruce are part of the forest composition. The oak/hickory-type group is, and has been, the most common-type forest in New Jersey. This group makes up nearly half of New Jersey’s forested area. This forest contains many mast-producing species that provide important forage for wildlife.”

The Hazard Mitigation Plan classifies and maps wildfire risks, based upon DEP LU/LC data as “extreme”, “very high” “high” moderate” and “low”:

“NJFFS, a division of NJDEP, has developed Wildfire Fuel Hazard data for the State based upon NJDEP’s 2002 Land Use/Land Cover (LU/LC) datasets and NJDEP’s 2002 10-meter Digital Elevation Grid datasets. NJFFS took the NJDEP Modified Anderson Land Use/Land Cover Classification System 2002 and assigned Wildfire Fuel Hazard Rankings to it.” (5.12.10)

(see Map as Figure 5.12-4 Wildfire Fuel Hazard in New Jersey)

The Hazard Mitigation Plan projects these risks and impacts to increase significantly due to increased climate impacts and the effects of even more new uncontrolled and poorly planned and regulated development:

“The likelihood of urban fires and wildfires is difficult to predict in a probabilistic manner. Estimating the approximate number of a catastrophic wildfire to occur in New Jersey every year is next to impossible because a number of variable factors impact the potential for a fire to occur and because some conditions (for example, ongoing land use development patterns, location, fuel sources, and construction sites) exert increasing pressure on the WUI zone. Based on available data, urban fires and wildfires may continue to present a risk.” (5.12.5)

The Plan documents serious risks and impacts from wildfires:

5.12.6.1 SEVERITY AND WARNING TIME

“Potential losses from wildfire include human life, structures and other improvements, and natural resources. Given the immediate response times to reported wildfires, the likelihood of injuries and casualties is minimal. Smoke and air pollution from wildfires can be a health hazard, especially for sensitive populations including children, the elderly, and those with respiratory and cardiovascular diseases. Wildfire may also threaten the health and safety of those fighting the fires. First responders are exposed to the dangers from the initial incident and after-effects from smoke inhalation and heat stroke. In addition, wildfire can lead to ancillary impacts such as landslides in steep ravine areas and flooding caused by the impacts of silt in local watersheds.” […]

5.12.6.3 ENVIRONMENTAL IMPACTS

“Wildfire events can have significant positive and negative impacts on the environment. The loss of vegetation, biodiversity and habitat is a concern, especially where threatened and endangered species are located. However, many of the State’s listed threatened and endangered species thrive in the open conditions that had historically resulted from the natural fire regime (NJFFS, 2013).

Exposed soils are vulnerable to wind and water erosion which may impact the quality of downstream water bodies and drinking water supplies. The composition of plant communities, as well as their vegetative and growth characteristics, is affected by fire. For example, many plant species have adapted to fire and are dependent on it for reproduction (NJFFS, 2013).”

Based on the Plan’s own findings, NJ’s land use planning and regulatory framework are seriously flawed and incapable of preventing and reducing wildfire risks and impacts. Accordingly new and more stringent measures must be imposed to prevent and reduce such risks and impacts.

(2)  The reasons for the request and the petitioner’s interest in the request

The reasons for this request are

• to protect people and property from current and projected wildfire risks and impacts;
• to protect ecosystems, natural resources, air quality, water quality, wildlife, vegetation, and public health from current and projected risks and impacts of wildfire;
• to mitigate the risks and impacts of climate change; and
• to reduce the occurrence and damages from wildfire disasters and the disbursements of federal and state taxpayer funded disaster assistance and response programs

The petitioner is a former longtime NJ resident and retired NJ DEP planner and policy analyst, former Policy Director for NJ Chapter of Sierra Club, and former and Director of NJ PEER. During this 35 year career, Petitioner has advocated the public interest and protection of public health, safety and environment. The petitioner’s interests are to continue that advocacy.

(3)  References to the authority of the agency to take the requested action

This joint petition if filed pursuant to the Department’s, Pinelands Commission’s, and Highlands Council’s various legal authorities and police powers, including but not limited to:

• The Highlands Act
• The Pinelands Act
• The DEP’s Organic Act (NJSA 13:1D-1 et seq.
• CAFRA
• Freshwater Wetlands Act
• Air Pollution Control Act
• Water Pollution Control Act
• Endangered Species Act
• Flood Hazard Act

(4) Specific regulatory actions requested

The petitioner requests that the DEP, Pinelands Commission and Highlands Council use the aforementioned legal authorities to amend current DEP regulations, Pinelands CMP and Highlands RMP to:

• ban new development in mapped “extreme” wildfire hazard areas
• restrict new development in mapped “very high” and “high” wildfire hazard areas
• mandate retrofit of state of the art fire prevention practices on existing development in mapped “extreme”; “very high” and “high” wildfire hazard areas
• prohibit reconstruction of fire damaged properties in mapped “extreme”; “very high” and “high” wildfire hazard areas
• monitor, quantify, and publicly Report in NJ’s Clean Air Act SIP all air pollution emissions – including greenhouse gas emissions and fine particulate matter (including very fine particulates less than PM10) – and impacts of wildfires and prescribed burns

We incorporate by reference the DEP’s recent climate science report, the most recent DEP SIP, the DEP Commissioner’s February 10, 2022 Senate testimony, as well as the wildfire and related findings of the 2019 NJ Hazard Mitigation Plan, the Pinelands CMP and the Highlands RMP.

We appreciate the Department, Pinelands Commission, and Highlands Council’s timely and favorable response to this petition for rulemaking.

Respectfully,

Bill Wolfe

DEP Announced Next Year’s Logging Plans, Despite Ongoing Legislative Task Force Deliberations

DEP Logging Plans Fail To Consider Climate Science

With questionable science, twisted management policies and priorities, dubious legislative authority, virtually no independent support, and strong public opposition, all the lights are flashing RED and demanding that the Department cease and desist logging activity on public lands.

In another ill-timed and shocking move, the Murphy DEP just announced an opportunity for the public to comment on next year’s logging plans for Sparta Mountain:

In accordance with the July 2021 Addendum to the approved 2017 Sparta Mountain WMA Forest Stewardship Plan, forest management activities planned for next year (2022/23) is now open for comment. Please email comments to sharon.petzinger@dep.nj.gov by March 31, 2022. 

As outlined in the 2017 Sparta Mountain WMA Forest Stewardship Plan, forest management activities in the form of a modified seed tree prescription will be implemented on 10 acres within Stand 18 next fall/winter (November 2022 – March 2023). This prescription will likely retain around 20 sq. ft. of basal area per acre across the 10-acre site to allow for the growth of young oak and hickory trees, blackberries, sedges, and a variety of other native shrub and sapling plants.

The DEP move comes just weeks after Senate Environment Committee Chairman Bob Smith formed a legislative Task Force to develop reform recommendations to improve DEP’s current controversial “forest stewardship” (AKA logging) practices and address the climate emergency.

I urge folks to each out directly to DEP Commissioner LaTourette and Gov. Murphy to demand a halt to these destructive logging projects. It seems clear that the DEP bureaucrats are blocking any meaningful reforms. The referenced  “July 2021 Addendum” made some important changes, but they are not enforceable (i.e. there are no enforcement sanctions for violations, the restrictions are stated in a contract, not a permit or enforceable document, and there is a huge loophole, i.e. “to the extent practicable“).

The DEP Addendum revisions still fail to address climate science, formally close loopholes by codification in law and/or DEP regulation, or address other criticisms of DEP’s logging plan.

The Addendum established new restrictions – which were strongly opposed by NJ Audubon – as follows: (DEP wrote):

Here’s my note to DEP:

Ms. Petzinger:

Please accept the following public comment on the DEP’s proposed July 2021 Addendum to the approved 2017 Sparta Mountain WMA Forest Stewardship Plan, forest management activities planned for next year (2022/23).

I continue to be astonished at the arrogance of the Department in continuing these controversial logging projects in Highlands forests, on publicly funded and acquired preserved public lands. The various minor changes (buffers, etc) the Department has included as modifications to the 2017 Plan do not come close to addressing public concerns or remedying scientific and policy flaws.

The rationale for these projects lacks a scientific and ecological basis, most glaring in the failure to even consider known current and projected climate impacts (either adaptation or carbon sequestration). That alone is a fatal flaw that should force the Department to suspend these logging projects until the DEP’s forestry practices are brought into alignment with DEP’s climate science and policies.

Even the purported habitat creation aspects of these projects lacks a current scientific basis because of the failure to consider climate impacts on habitat. I previously provided comments on golden wing warbler habitat migration due to climate change to illustrate this flaw. Those comments were simply ignored by the DEP. I find this, too, to be astonishing.

There have been many additional scientific critiques by qualified expert ecologists, water quality, wildlife, and forestry experts.

There is virtually no public support for these logging projects. The only support is coming from individuals and organizations with economic interests in these projects. The few other supporter are largely consumptive users, e.g. hunters.

Legally, the failure, for over a decade, of Senator Smith’s various “forest stewardship” bills designed to legislatively authorize the Department’s “stewardship” projects in publicly owned forests, strongly suggests a lack of legislative authorization to conduct these projects.

The Department’s contract terms and the low bids the Department has accepted (ranging from free to $8,500 as far as I know) are obscene and a total mismanagement of state lands.

The Department has conducted NJ specific studies that document that the economic value of forests is far greater in preservation than any form of active management (see DEP’s Natural Capital and Ecosystem Services research Reports).

The contract terms regarding protection of natural resources and water quality are not effectively enforceable, compared to DEP regulatory based permit conditions and Highland RMP approvals. The statutory and regulatory loopholes that enable these unregulated contract practices must be closed. This is another reason for the DEP to impose a moratorium on these projects.

The DEP has forestry related policy initiatives currently underway, including the Forest Action Plan, The Natural and Working Lands Initiative and climate PACT REAL land use, water resource, and stormwater and flood management regulations. Again, the DEP should impose a moratorium pending public comment and formal regulatory adoption of these policies.

Finally, Senator Smith established a Forestry Task Force that its currently deliberating on reforms to current law, regulation, policy and practice. That too should force DEP to suspend current projects.

I am not confident that Commissioner LaTourette is aware of or has been fully and faithfully briefed on these many issues, so I am copying him on these comments in hope that he is able to penetrate the self interested and impenetrable bureaucratic veil that you and others at the Department seem to perpetuate.

With questionable science, twisted management policies and priorities, dubious legislative authority, virtually no independent support, and strong public opposition, all the lights are flashing RED and demanding that the Department cease and desist logging activity on public lands.

Bill Wolfe

March 2022, Sonoran desert

I’m not the kind of man who tends to socialize
I seem to lean on old familiar ways
And I ain’t no fool for love songs that whisper in my ears
Still crazy after all these years
Oh, still crazy after all these years. ~~~ Paul Simon (1975 – listen)

NJ Courts Have Rejected NRD Lawsuits Due Lack of Legislative And Regulatory Standards

Current Lawsuits Vulnerable To Repeat Exxon Pennies On The Dollar Settlements

[Update below – AG’s Press Office responds]

Former Murphy Attorney General Grewal was aggressive right out of the gate in issuing an unprecedented flurry of joint press releases with DEP touting his lawsuits against corporate polluters seeking compensation for natural resource damages (e.g. see this and this and this) AG Grewal was even more PR promotional than former DEP Commissioner Brad Campbell!

But oops, Campbell’s DEP’s NRD “sweetheart deal” neglected this:

• Dupont deal gave state more tainted soil

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

Will Murphy’s AG/DEP correct Campbell’s disgraceful Dupont deal?

• Murphy DEP Finally Re-Opens Corrupt Dupont Pompton Lakes Natural Resource Damage Settlement

But let’s get back to our topic today. Here’s the most recent (AG/DEP NRD press release)

 “As we said at the outset of the Murphy Administration, the days of free passes and soft landings for polluters in New Jersey are over,” said Attorney General Grewal. “The corporations we’re suing knew full well the potential harms they were inflicting on our environment, but chose to forge ahead anyway. When companies disregard the laws meant to protect our environment, they can expect to pay.”

Those press releases generated highly favorable media headlines and praise from environmental groups – exactly what the Governor, the AG and the DEP Commissioner wanted:

• NJ Seeks Compensation for Natural-Resource Damages with Two More Lawsuits

But when questioned about the status of those lawsuits and asked to respond to concerns about whether they were legally vulnerable given prior NJ Court decisions and the failure of DEP to adopt NRD regulations that courts have said are required and that DEP is legally obligated to adopt, the AG’s press office went radio silent.

[Full disclosure: I am a skeptic of not only the NRD cases, but other legal theories and litigation strategies Grewal has pursued.)

Is the Murphy Administration about to cut the same kind of pennies on the dollar settlements with corporate polluters that the Christie administration did with Exxon in response to DEP’s $8.9 billion lawsuit?

DEP has failed to provide a methodology and standards for monetizing NRD injuries. That makes it impossible to understand what the value of the NRD damages are and how much the AG and DEP recover (e.g. in the Exxon case, DEP claimed $8.9 billion in NRD injuries, but recovered just $225 million, less than 3 pennies on the dollar, see:

• Why Were We Blindsided By The Exxon NRD Deal?

Without any calculated NRD method or NRD injury Report (like DEP prepared in the Exxon case and in many prior cases) how can we know how the current Murphy NRD lawsuits are doing in holding polluters accountable for the natural resource damages that they cause?

I guess it’s a lot easier to issue press releases and spin NJ’s lame press corps than it is to respond to serious legal and policy questions and be held accountable to your own rhetoric.

The status of AG lawsuits is public information. Why would the AG’s Office not respond as aggressively in providing that information as they do in issuing self congratulatory press releases?

So, in hope that there are real investigative journalists out there willing to hold the AG accountable to his over the top press release rhetoric, here are the questions I recently posed to Lee Moore at the AG’s Press Office. They went unanswered (and after briefing his secretary for 15 minutes, there was not even a return phone call):

1) What is the universe and status of NRD cases filed to date? Dupont, Exxon, PFOA, et al

2) Any there legal concern with failure of Senator Smith’s NRD Taskforce and lack of legislative standards?

3) Former DEP Commissioner Campbell entered into a Judicial Settlement agreement in which the DAG at the time pledged that DEP would adopt NRD regulations, but DEP has since failed to do so. Several NJ Court decisions have rejected DEP NRD lawsuits based on the failure of DEP to promulgate regulations. What is your take on that? Does the lack of DEP NRD regulations undermine your litigation?

4) how do you respond to criticism that courts reject NRD claims in the absence of promulgated DEP NRD regulations?

5) why were there no appeals of prior court defeats of NRD claims?

6) how do you respond to criticism in the NJ Law Journal article on the Christie Exxon settlement that the State has a weak legal hand and is forced to settle (or accept voluntary agreements) for pennies on the dollar?

Appreciate your response. Don’t hesitate to call with questions.

Bill Wolfe

 [Update – 6:25 pm MST (8:25 pm EST) – In a “no comment” response, the NJ’a AG’s Press Office responded, as of 2:27 pm EST. I just opened the email now (no connection in Sonoran desert). They provided basic case status information (which I can’t access), but failed to respond to my legal and policy questions, as follows:

Bill:   Greetings. Attached is a listing of our environmental lawsuits since 2018 that contain NRD claims. As you will see,  the right hand column of the chart contains the official captioned names of the cases, as well as the court-assigned docket numbers for each case. This information will enable you to follow-up on individual cases through the public docket. (The left hand column contains strictly unofficial, working names for the individual cases.)

We have no comment regarding the other questions you’ve asked.

Best regards,

Leland Moore

NJ OAG communications