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All That’s Wrong With NJ Environmental Politics – In One Photo

The New CCC: Careerism – Co-optation – Corruption

FB Photo: Dena Mottola Jaborska (NJ Citizen Action), Dave Pringle (Consultant), Curtis Fisher (NWF, former NJPIRG) and Doug O’Malley (Environment NJ) (L-R)

They were careless people, Tom and Daisy – they smashed up things and creatures and then retreated back into their money or their vast carelessness or whatever it was that kept them together, and let other people clean up the mess they made…” ~~~ The Great Gatsby, by F. Scott Fitzgerald

Former Goldmans Sach’s executive and current NJ Governor Murphy held an “Inaugural Ball” last week in MetLife Stadium. (that’s Metlife, the global insurance and financial services corporation that had over $70 billion in revenue last year).

I’ve likened Gov. Murphy and his trophy wife Tammy to Tom and Daisy from The Great Gatsby.

Even the hometown corporate media had a tough time swallowing that ostentatious self promotion (nj.com):

Thursday’s event was organized and paid for by a “dark money” nonprofit called New Jersey Forward, made up of Murphy allies. Because it’s a 501(c)4 organization, there are zero limits on what it can accept as donations and it does not have to reveal its donors. The group said 1,000 people were expected to attend Thursday’s gala — which would translate to at least $300,000.

The organization’s name is similar to that of a pair of political groups launched in February to bolster Murphy’s national profile: a political action committee and nonprofit that are both named Stronger Fairer Forward.

But NJ’s former and current “progressive” and “environmental” leaders – my former friends and colleagues – were all smiles (above photo).

Surprised they didn’t get a “groupie” with the Gov. and Tammy. (4 more years!!!)

I lack the words – and meanness of spirit – to describe what this really means.

But, its way beyond disappointment.

It sickens me and illustrates all that is wrong with NJ’s environmental “activism” and “progressive” so called environmental politics.

These people surely know that Murphy is a complete fraud on his claims of leadership on climate policy.

So why do they have their heads so far up his ass?

On that basis alone, they should have organized activists to protest outside the Gov.’s event, not partied inside it.

In 1848, Thoreau went to jail for refusing, as a protest against the Mexican war, to pay his poll tax. When RW Emerson came to bail him out, Emerson said, ‘Henry, what are you doing in there?’ Thoreau quietly replied, ‘Ralph, what are you doing out there?’ ~~~

(yes, we know that this story is legend – not historical fact – and that slavery as well as war was Thoreau’s concern)

Shame.

Legislature Must Conduct Oversight Of Murphy DEP Claim Of Lack Of Legislative Authority To Address Wildfire Risks in Land Use Programs

I must begin this post by providing context and an example.

Legal liability for causing harm is a significant structural component of public policies to protect the public interest, particularly human health and the environment. Liability for causing harm can reinforce and even strengthen protective regulatory policies (ELI Institute):

Liability for environmental harm is designed to compensate affected parties, with a particular focus on restoring or replacing injured resources and/or providing compensation for lost value. By increasing the costs for those who harm the environment, liability provisions can serve an important deterrent role, promoting compliance with laws and regulations. Liability provisions can also serve as gap-fillers, covering activities not specifically identified as illegal but nevertheless resulting in harm to the environment, livelihoods, and public health.

Simply put: when the law allows corporations and people to avoid accountability for unsafe and negligent practices that cause harm, then they act with impunity and we are all worse off.

As an example: We recently experienced corruption, concrete negative effects, and the huge implications of the liability scheme when NY Gov. Cuomo – followed by NJ Gov. Murphy and the NJ Legislature – provided liability immunity for negligence in responding to COVID, see:

• Cuomo gave immunity to nursing home executives after big campaign donations – Critics say data proves New York’s liability shield is linked to higher nursing home death rates during the pandemic

Repeat: “NY’s liability shield is linked to higher nursing home death rates”.

Public outrage forced Gov. Cuomo to repeal that law, see:

• NYS Governor Cuomo Signs Bill to Fully Repeal Immunity for Certain Health Care Providers and Facilities

With that context, now, let’s get to the topic of today’s post.

Last week, I wrote that a “prescribed burn” by the US Forest Service started the biggest wildfire in the US in New Mexico. That wildfire damaged billions of dollars in property and put lives at risk. Development was allowed to be built in areas of extreme wildfire risks, see:

• US Forest Service Prescribed Burn Started New Mexico Wildfire

That post also explained how the NJ legislature – just like COVID in nursing homes – recently very quietly provided broad liability immunity for damage from prescribed burns, including damage from wildfires:

The Prescribed Burn Act, specifically see C.13:9-44.16 Prescribed burn deemed to be in public interest; immunity from liability, also exempts wildfires caused by prescribed burns that get out of control and damage people and property (e.g. your barn or house burns down or your animals are killed).

And I exposed the claim by the Murphy DEP that DEP lacks common sense legal authority to regulate land use to prevent and reduce the risks of wildfire from proposed new development and existing development, even in mapped areas of “extreme wildfire risk”, see:

• Murphy DEP Denies Climate Wildfire Risk Petition

I was stunned that the Department wrote to deny legislative authority to consider wildfire risks in DEP’s land use regulatory programs. DEP wrote:

While the Department has considerable authority to regulate certain activities in particular environmentally sensitive areas, the Department does not possess the sort of master land use planning or regulatory authority alluded to by Petitioner.

I previously wrote to Senator Smith to conduct oversight of that DEP claim and – if accurate – to close that legal gap.

So, let’s not wait for a New Mexico out of control prescribed burn disaster to act.

Let’s learn from New York State’s COVID liability experience and repeal bad law.

Let’s close the legal land use gaps DEP claims exist.

Let’s not allow more people and property in harms way and repeat the historical mistakes of allowing development in hazardous coastal and flood locations.

Let’s make common sense reforms:

• REPEAL THE WILDFIRE DAMAGE LIABILITY EXEMPTION FOR PRESCRIBED BURNS.

• PROVIDE LEGAL AUTHORITY TO DEP TO RESTRICT LAND USE IN EXTREME WILDFIRE AREAS.

Ironically, in a February 10 Senate hearing, both Murphy DEP Commissioner and Senate Environment Committee Chairman Bob Smith highlighted the wildfire risks of western fires, like the New Mexico blaze. Amazingly, DEP Commissioner LaTourette even touted DEP’s prescribed burn program (without even a mention of the liability waiver or lack of land use authority issues).

So, I wrote the following letter to Senate Environment Committee Chairman Bob Smith and urge you to contact your legislator and Gov. Murphy:

Dear Senator Smith:

As you and DEP Commissioner LaTourette raised concerns about western wildfires during the February 10, 2022 Senate Environment Committee, I thought you would be concerned that the largest active wildfire in the country currently burning in New Mexico was started by a US Forest Service prescribed burn that got out of control.

According to a New Mexico State Senator and Congressional representatives, the US Forest Service “fire model” determined that the prescribed burn was “safe”, despite local fire restrictions due to extremely fire inducing conditions, e.g. drought, wind, relative humidity, soil moisture, vegetation, landscape, et al.

As you know, in 2018, the legislature enacted The Prescribed Burn Act, specifically see C.13:9-44.16, which established liability exemptions for prescribed burns that get out of control and cause damage.

As you also know, the DEP recently announced support for expanding DEP controlled burns in NJ.

In light of the New Mexico situation and the claim that the US Forest Service fire model appears to be seriously flawed, I urge your reconsideration and repeal of the liability exemption established by The Prescribed Burn Act.

I also request that you conduct oversight of DEP’s “fire model” to determine if it is current and reflects the best available science.

Links to the New Mexico news accounts are provided below, FYI,

Respectfully,

If DEP Started Wildfire Burned Down Your Home, You Could Not Sue To Recover Damage

NJ Law Quietly Exempted Liability For Property Damage From Prescribed Burns

Why is DEP willing to expand the use of risky prescribed burns – with damage liability exempted – yet they totally reject much less damaging and risky management strategies, like limiting new development in extreme wildfire hazard areas and requiring fireproofing of existing development in those risky areas?

A major wildfire now burning in New Mexico – the largest active fire in the country – was started by the US Forest Service (USFS).

A USFS “prescribed burn” got out of control.

A lot of people are pissed off: (listen to the entire TV news video – here’s an excerpt):

NM lawmakers frustrated with US Forest Service’s role in starting Hermits Peak Fire

Sen. Ben Ray Luján shared his frustration with the U.S. Forest Service’s role in starting the Hermits Peak Fire, which now, combined with the Calf Canyon Fire, is the largest active fire in the country.

“I know that week, where I live, my brother was going to burn the acequias as we were cleaning it, and so sometimes you burn that vegetation off, so you can get a cleaner cut with that shovel,” he said. “Well, we were told by the local fire department, no burning, there were fire restrictions.”

That was the same week the Forest Service started a prescribed burn in Santa Fe National Forest, which has since grown out of control to more than 160,000 acres.

“It makes zero sense to me, and this is also something we have to get to the bottom of,” Sen. Luján said. “I’m terrified that this is the new normal with wildfire behavior across the West.”

He added that state leaders are doing everything they can to hold the federal agency accountable.

“There is a real federal liability here,” said New Mexico Governor Michelle Lujan Grisham in a recent interview with KOB 4.

Congresswoman Teresa Leger Fernandez sent the Forest Service a letter, asking if there has been an investigation, what protocols are in place to prevent a controlled burn from getting out of control, and when those protocols were last updated.

According to officials, the USFS prescribed burn was deemed “safe” by the USFS fire model.

The New Mexico US Forest Service “prescribed burn” wildfire sheds light on the risks of prescribed burns and the resulting liability issues.

Don’t think accidents can’t happen here – for example, in 2013, smoke from a DEP prescribed burn resulted in the death of a firefighter. I wrote:

The death of a fireman was caused during a prescribed burn last year at round Valley Reservoir sheds new light on these risks, see: Prosecutor: Thick smoke blinds driver who hit, killed N.J. fireman at Round Valley].

DEP refused to respond to my OPRA data request regarding data on how many NJ prescribed burns got out of control and caused damage. So we don ‘t know how often it happens here and what the damage is.

Despite these risks, remarkably, the NJ legislature in 2018 eliminated liability for damages caused by a “prescribed burn” that got out of control.

I recently warned about that:

Worse, the 2018  Prescribed Burn Act exempts “prescribed burns” from air pollution permit and compliance requirements and provides exemptions from liability for air pollution impacts (e.g. like sending you asthmatic kid to the hospital).

4) With so many people and so much property at risk from wildfire, why did DEP support legislation that eliminated liability for wildfires caused by poorly managed “prescribed burns”?

The Prescribed Burn Act, specifically see C.13:9-44.16 Prescribed burn deemed to be in public interest; immunity from liability, also exempts wildfires caused by prescribed burns that get out of control and damage people and property (e.g. your barn or house burns down or you animals killed).

Despite the New Mexico prescribed burn disaster which illustrates the poor public policy of the liability exemption in NJ law that lets DEP off the hook for damages they may cause, just yesterday, as the New Mexico fired burned, the Murphy DEP doubled down on the use of “prescribed burns”. see:

• Murphy DEP Denies Climate Wildfire Risk Petition

DEP wrote to note that the causes of a “wildfire” include an out of control “prescribed burn”:

A wildfire or “wildland fire” is defined as “any non-structural fire that occurs in the wildland,” which can be naturally occurring, human-caused, or prescribed and occur in forested, semi-forested, or less developed areas.  Hazard Mitigation Plan at 5.12-2. 

Completely ignoring the risks of an out of control “prescribed burn” and with no mention of the ill-advised the liability relief in NJ law, DEP then touted the benefits of prescribed burn and committed to expanding them:

Each year the Department conducts prescribed burns to reduce forest fuels and undergrowth that contribute to wildfire starts and spread. The prescribed burn program has expanded over time to include both public and private forests. In 2021, the Department conducted prescribed burns on 17,936 acres. For the 2022 season, the Department is targeting a program covering 20,000 to 25,000 acres. 

Just beware that if a DEP prescribed burn” get out of control and burns down your house or barn, you are SOL.

Did you know that?

Did the NJ media report that?

Are you OK with that?

Why is DEP willing to expand the use of risky prescribed burns, yet they reject much less damaging and risky management strategies, like limiting new development in extreme wildfire hazard areas and requiring fireproofing of existing development in those risky areas?

DEP Claims To Lack Legislative Authority To Regulate Land Use To Prevent And Reduce Wildfire Risks

DEP Doubles Down On Flawed Strategies of Burning and Logging Forests

DEP Abdicates State Responsibility Via Delegation To Local Governments

DEP actually supports new development in extreme wildfire hazard areas

On the heels of the Highlands Council’s denial, in a Friday afternoon news dump, today the DEP denied my petition to force the Department to address climate induced wildfire risks in various DEP regulatory programs, including the land use programs.

As I wrote yesterday, the main objectives of filing the petition were, among other things, to:

to raise public awareness of the issues of climate, wildfire, and land use.

to pressure the [DEP] to adopt a policy of managing wildfire risk – primarily if not exclusively – through land use and development controls and fireproofing existing structures, instead of the damaging “active management” of prescribed burns, “thinning” and forest “treatments” (logging).

Finally, I had hoped to generate some pushback to DEP’s attempts, in their Forest Action Plan, Natural And Working Lands Strategy, and other “Forest stewardship” initiatives, to using wildfire risks as pretext for logging. (for recent examples of that abuse, see:

• Murphy DEP “Forest Action Plan” Sparks Controversy Over Conflicts With Climate Goals And Logging State Land

• Murphy DEP Caught Blowing Smoke On Wildfires

In denying the petition, the Department failed to engage the land use issues and instead doubled down on and defended exactly the flawed management strategies I opposed.

I was stunned that the Department wrote to deny legislative authority to consider wildfire risks in DEP’s land use regulatory programs:

While the Department has considerable authority to regulate certain activities in particular environmentally sensitive areas, the Department does not possess the sort of master land use planning or regulatory authority alluded to by Petitioner. In the particular areas over which the Department has regulatory authority, the development of many land areas that may be susceptible to wildfire is already minimized under the Department’s regulation of impacts to natural resources such as wetlands, threatened and endangered species habitat, coastal areas, riparian areas, and certain forested areas. As discussed below, the Department is engaged in an ongoing analysis of wildfire risk in the state and is developing information and tools to reduce wildfire risk and mitigate wildfire hazards to the maximum extent possible. 

DEP expressly limited their jurisdiction to:

regulation of impacts to natural resources such as wetlands, threatened and endangered species habitat, coastal areas, riparian areas, and certain forested areas.

Perhaps DEP failed to understand that the petition explicitly linked wildfire risks to impacts on DEP “regulated features“, i.e. the natural resources DEP noted above.

Clearly, there are scientific and legal nexus between land use, wildfire risks, and DEP regulated features. DEP is simply in denial about those linkages.

Later, the Department contradicted this denial of legislative authority to regulate land use, and concluded that land use restrictions are “unnecessary”

As such, the Department has determined that the requested rulemaking to prohibit or restrict development and mandate building retrofits is unnecessary. Nevertheless, the Department remains committed to continued research, as well as monitoring and reducing wildfire risk through both direct action and work with community partners.

I immediately wrote DEP to request that they clarify this fundamental legal issue, with a copy to Senator Smith requesting that he sponsor legislation to close that legal gap.

The Department then doubled down on controversial flawed, destructive, and ineffective DEP management strategies that rely exclusively on burning and logging forests to prevent and reduce wildfire risks:

Among the available forest management techniques are treatments to remove hazardous fuels and brush by thinning overstocked forests or creating fire breaks, as well as prescribed burning.  Id. at 35-36. The Department also utilizes prescribed burning for public safety and wildfire control.  See Forest Action Plan at 134-135.  

The Department admitted the huge risks of new and existing development in extreme wildfire risk areas.

But DEP then defended their current policy, which effectively abdicates State responsibility by delegating primary risk reduction strategies to local government.

Notably worse, the local strategies do not include land use controls under the NJ Municipal Land Use Law.

Thus, while DEP is fully aware of risks, by regulatory abdication DEP effectively actually supports new development in extreme wildfire hazard areas.

DEP wrote:

The Forest Action Plan recognizes that “[a]s the population in New Jersey continues to spread into the wildland or increase the amount of Wildland Urban Interface (WUI), community planning or the protection of both lives and property from wildfire is an unremitting challenge.”  Forest Action Plan at 133. One effective tool to address this challenge is a network of Community Wildfire Protection Plans (CWPPs).  Ibid. CWPP development focuses on restoring and maintaining landscapes that are resilient to fire-related disturbances, fire-adapting communities so that human populations and infrastructure can withstand a wildfire without loss of life and property, and engaging all jurisdictions to “participate in making and implementing safe, effective and efficient risk-based wildfire management decisions.” Ibid.

I need to do additional research on how DEP responded to the air pollution related issues, which are complex. I will note now, however, that DEP failed to mention recent NJ State legislation that exempted prescribed burns from DEP air permit requirements, as well as recent EPA Guidance regarding emissions inventory and reporting of controlled burn and wildfire emissions.

So, to summarize:

While the Governor and Murphy DEP tout their “climate resilience” leadership and regularly emphasize the risks of wildfires and the significant increase in those risks due to the climate emergency – and DEP even admits the significant increase in those risks due to existing development and burgeoning new development in extreme wildfire hazard areas – they are unwilling to regulate land use and development to mandate reductions in those risks.

Similarly, they abdicate the State responsibility and role in wildfire risk reduction strategies via delegation to their local government “partners”.

We’ll have more to write about this after we more thoroughly digest the DEP denial document (I hav an email version, no links, provided upon request)

Council Claims Current Regional Master (RMP) Plan Is Adequate

But RMP Does Not Even Address Climate Or Wildfire Risks

The NJ Highlands Council just denied my petition for rulemaking that sought additional land use and development restrictions to reduce “extreme wildfire” risks associated with the climate emergency. (read the petition, also see:

• Murphy DEP, Pinelands Commission, and Highlands Council Urged To Restrict New Development In Areas Of “Extreme” Wildfire Risk

• NJ Highlands Council Accepts Wildfire Risk Petition

While I am surprised by how quickly it was made, I am not surprised by that decision, given the Council’s failure to take action to address the climate emergency (which contrasts to ongoing climate planning by the Pinelands Commission), and their recent promotion of new development in the region, and failure to respond to exploding new development threats from warehouses and industrial solar “farms”, see:

• Gov. Murphy Promoting Corporate Development Of The Environmentally Sensitive NJ Highlands Region

The Council’s denial basically claimed that the current Regional Master Plan (RMP) adequately addresses the climate and wildfire risks I identified. The Council wrote:

The Highlands Council agrees with Petitioner that wildfire prevention, combating climate change and protection of the natural resources in the Highlands Region are essential actions; however, the Highlands Council has determined that a rule change is unnecessary at this time.

At this time? If not now, when? We’re in a  climate emergency.

In addition to agreeing with the science and need for the policies I recommended,  the Highlands Council was forced to admit that extreme wildfire risks are real. The Council wrote:

Many of the “extreme” wildfire hazard areas – areas where Petitioner would like to see development banned – are located in the Preservation areas of the New Jersey Highlands.

Here the Council misrepresents the petition by omission. I not only sought development bans, but new land use and development controls. And not only for new development but also for existing development.

The Council concluded – with no supporting science, factual evidence, maps, or citation to the provisions of the RMP – that the RMP adequately addressed these risks. The Council wrote:

in accordance with the Highlands Act and the RMP, strong restrictions on development are already in place in these areas.

However, that conclusion is belied by the fact that the Highlands Act and the RMP do not even mention wildfire and climate risks, never mind provide adequate land use and development controls to prevent and reduce those risks.

The terms “climate” and “wildfire” are not even mentioned in the Regional Master Plan. 

Neither “climate” or “wildfire” is a basis for any of the land use planning and development standards of the RMP.

“Global warming” is mentioned exactly once in the RMP, and not in relation to land use and wildfire:

▶ Air Quality – This element addresses the connection between land development patterns, automobile transportation and the creation of air pollutants affecting the Highlands Region. Because development patterns also affect energy use, improved regional growth patterns also help address global warming issues to some extent. The element also calls for additional monitoring of toxic air pollutants from both within and nearby the Region.

The technical “stewardship” support documents for the RMP mention “climate change” only in relation to “carbon trading”. It mentions “wildfire” only as a descriptive element in “Forest Stewardship Plans” and US Forest Service grants (see p. 22 and Appendix C). Again, this is not a basis for land use or development restrictions and fireproofing requirements to address climate or wildfire risks.

The Council’s claim is not only not supported by any evidence, it is flat out false. And the Council didn’t even attempt to demonstrate that the current RMP standards are substantively equivalent to or somehow incorporate climate and wildfire science and policy.

The Council’s denial also claimed that the lengthy 6 year plan review and update process was adequate, instead of responding to the urgency of the climate emergency now.

The Council claimed that they recently went though a plan update process:

The RMP was most recently amended in 2019; a public comment period was held from March 27 through May 28, 2019, and the Highlands Council held six public hearings in locations throughout the state to solicit public comment.

That is a transparent attempt by the Council staff to control the issue agenda and the planning process and avoid accountability, see:

• How To Beat The Bureaucrats At Their Own Game

In reliance on the Plan update process, the Council failed to provide any evidence that any of the recent RMP updates or public hearings actually addressed the climate emergency and wildfire risk management science, findings, maps, and recommendations in the petition. At a minimum, that would be required to support their claim that the Plan update process is superior to the petition mechanism.

The Council’s denial is an egregiously flawed document. It lacks any statutory, regulatory, cartographic, data, or scientific basis to support the denial. 

The Council makes mere vague assertions and conclusions, which are not backed up or supported by anything. Flimsy is too generous a description of this work product. The denial is a series of empty, fact free, unsupported assertions. 

Government decisions must be rational and based on articulated evidence in the administrative record.

It is obvious that the Council did not take my petition seriously.

If there’s a pro-bono land use or environmental lawyer out there, give me a ring. This is a classic “arbitrary and capricious” slam dunk win.

This denial is related to Senator Smith’s Forestry Task Force work (and a very poor signal for the upcoming DEP Climate PACT regulations and the Pinelands Commission and DEP’s decisions on the petition):

[End Note: One of my objectives in filing the petition was to raise public awareness of the issues of climate, wildfire, and land use.

Another was to pressure the Highlands Council to adopt a policy of managing wildfire risk – primarily if not exclusively – through land use and development controls and fireproofing existing structures, instead of the damaging “active management” of prescribed burns, “thinning” and forest “treatments” (logging).

Finally, I had hoped to generate some pushback to DEP’s attempts, in their Forest Action Plan, Natural And Working Lands Strategy, and other “Forest stewardship” initiatives, to using wildfire risks as pretext for logging. (for recent examples of that abuse, see:

• Murphy DEP “Forest Action Plan” Sparks Controversy Over Conflicts With Climate Goals And Logging State Lands

• Murphy DEP Caught Blowing Smoke On Wildfires

Highlands Council Executive Director Lisa Plevin was on the Zoom call for the Legislative Forestry Task Force, so she is involved in these issues now. That will be a venue for address these issues now. See:

• Murphy DEP Doubling Down On Logging Public Lands, Despite Pending Climate Regulations And Legislative Task Force

Here’s the relevant text of the Council’s denial:

The Highlands Council Response to the Petition The Highlands Council has determined to deny this petition for rulemaking. The Highlands Council agrees with Petitioner that wildfire prevention, combating climate change and protection of the natural resources in the Highlands Region are essential actions; however, the Highlands Council has determined that a rule change is unnecessary at this time.

As outlined below, notwithstanding Petitioner’s Petition for Rulemaking, the Highlands Council has strong protections in place to address the aforementioned issues. The Highlands Council encourages a comprehensive regional approach to implementing the 2004 Highlands Water Protection and Planning Act (the Highlands Act) (N.J.S.A. 13:20-14 and 15) . The Highlands Act established the Highlands Council and charged it with the creation and adoption of the Highlands Regional Master Plan (RMP) to protect and enhance the natural resources within the New Jersey Highlands. Many of the “extreme” wildfire hazard areas – areas where Petitioner would like to see development banned – are located in the Preservation areas of the New Jersey Highlands; in accordance with the Highlands Act and the RMP, strong restrictions on development are already in place in these areas. Additionally, the Highlands Act requires the Highlands Council to review and update the RMP every six years, after public hearings.

The Highlands Act contemplates that amendments to the RMP will arise principally out of this six-year reexamination. Accordingly, the Highlands Council follows this outlined structure to review and update the RMP in a manner that is consistent with the Highlands Act and ensures robust public participation. The RMP was most recently amended in 2019; a public comment period was held from March 27 through May 28, 2019, and the Highlands Council held six public hearings in locations throughout the state to solicit public comment. Petitioner is encouraged to comment on the Highlands Council ’s next RMP amendment which will take place in 2024.