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After Gov. Murphy Repeatedly Touted The Importance Of NJ Rejoining RGGI, DEP Has Spent Less Than 1% Of Over $250 Million Collected

June 28th, 2022 No comments

DEP Weak CO2 Emissions Proposal, No Adaptation Rules, And Not Even Spending Money

Gov. Environmental Award to NJ Climate Alliance (December 10, 2018)

Gov. Environmental Award to NJ Climate Alliance (December 10, 2018)

Fulfilling a campaign promise, less than 2 weeks after his election, NJ Gov. Murphy issued Executive Order #7, which authorized NJ to rejoin the northeastern states Regional Greenhouse Gas Initiative (RGGI). He got high praise from environmental groups and great press coverage:

Gov. Phil Murphy yesterday signed an executive order to have the state rejoin the Regional Greenhouse Gas Initiative, a step signaling the state is shifting to a much more aggressive stance on fighting climate change.

In an event in Atlantic Highlands, the governor fulfilled one of his primary environmental pledges by reentering the multistate program to reduce pollution from power plants by participating in the carbon budget-trading program.

Gov. Murphy bragged about that multiple times. For example, when DEP adopted regulations implementing Executive Order #7, the Gov. again highlighted the significance of NJ rejoining (RGGI). Here’s a June 17, 2019 press release:

“Climate change and sea-level rise affect us all, and as a coastal state, New Jersey is especially vulnerable to the impacts of global warming,” said Governor Murphy.The reckless decision to pull out of the Regional Greenhouse Gas Initiative in 2012 cost the state millions of dollars in revenue that could have been used to put toward initiatives to reduce greenhouse gas emissions and improve the health of our residents. New Jersey has reemerged as a national leader in fighting climate change and reentering the Regional Greenhouse Gas Initiative will propel us on a path to 100 percent clean energy by 2050.

The Gov. emphasized and prioritized the allocation of RGGI revenues to “disproportionately impacted” communities: (EO#7):

Such guidelines shall include, as a primary consideration of the State agencies charged with allocating said funds, factors that will ensure that funds are allocated to projects that will serve communities that are disproportionality impacted by the effects of environmental degradation and climate change, and which will alleviate the negative effects on human health and the environment resulting therefrom.

On a daily basis, there’s a drumbeat of media reports about the billions of dollars of investment that will be required to reduce energy demand, maximize energy efficiency, electrify buildings and transportation, upgrade the power grid, phase out fossil, and transition to 100% renewable energy to meet deep greenhouse gas reduction climate goals.

We regularly read about Gov. Murphy and DEP Commissioner LaTourette’s commitment to disproportionately impacted environmental justice communities.

Yet 4 and a half years after the Gov. issued EO#7 and 3 years after rejoining RGGI, according to recent DEP testimony to the legislature on this year’s budget, DEP has spent less than 1% of over $256 million collected.

In DEP’s response to  Legislative oversight of DEP’s budget, DEP wrote: (@page 5)

Since New Jersey’s 2020 return into RGGI, the State has received $256,290,826 in auction proceeds. To date $116,750,471 has been awarded and allocated to projects and $1,380,452 has been spent.

Did you get that?

DEP has collected over $256 million dollars and spent just $1,380,452 – that’s 0.5%!

Is DEP practicing “reckless” mismanagement that cost the people millions of dollars that could have been spent to reduce GHG emissions and improve public health? Let’s repeat Gov. Murphy’s press release:

The reckless decision to pull out of the Regional Greenhouse Gas Initiative in 2012 cost the state millions of dollars in revenue that could have been used to put toward initiatives to reduce greenhouse gas emissions and improve the health of our residents.

Look, I’ve long been a harsh critic of RGGI, for many reasons, including: 1) lack of a real cap on emissions, 2) the fake cap is far too lax to meet emission reduction goals, 3) the emissions allowance price is far too low; 4) RGGI applies to less than 20% of greenhouse gas emissions, 5) the cost of the program has been greatly exaggerated, and 6) the program has been politicized.

But failure to even spend the RGGI money – in the face of the climate emergency and tremendous unmet investment needs – is simply outrageous.

And I’m sure PSE&G has not waited years to receive their $300 million annual nuclear subsidies.

And while DEP is not spending available RGGI money, the Gov. has diverted and spent millions of dollars of Clean Energy Funds (even with a huge budget surplus).

(all while over 1 million NJ residents can’t pay their bills and face utility shutoffs)

Once again, the facts and substance exposes the PR of the Murphy DEP.

Don’t hold your breath waiting for the NJ media to report these kind of inconvenient facts, or for NJ environmental groups – sycophants and cheerleaders all – to criticize them.

[End Note: It’s probably a very good thing that DEP has not spent the RGGI money allocated to carbon sequestration, because under current DEP “Forest Action Plan” policies and RGGI funding regulations and programs, they would conduct sham “young forest” “thinning” “stewardship” logging projects and call them sequestration.

Of course, there is a massive need and unmet demand for urban forestry projects – which DEP has failed to satisfy – and of course I strongly SUPPORT expenditure of RGGI money for those urban forestry programs.]

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Murphy DEP Commissioner LaTourette Warned: Do NOT Propose Climate PACT Regulations As “Emergency Rules”

June 27th, 2022 No comments

Courts Struck Down DEP “Interim” Rules On PFNA

Longtime Legal Precedent Dooms Any DEP “Emergency Rule” Proposal

Activists don’t know the difference between the science supporting a “climate emergency” and legal requirements to justify “emergency rules”

Murphy DEP Commissioner Latourette recently publicly announced his plans to propose DEP’s long delayed “Climate PACT” land use rules as “emergency rules”, see this June 1, 2022 NJ.Com story:

The next day, on June 2, I wrote to explain how that would violate NJ’s Administrative Procedure Act and be struck down by NJ Courts or vetoed by the NJ Legislature.

On June 3, the NJ business community weighed into the debate with a letter to Gov. Murphy strongly opposing proposal of these rules as “emergency rules” (procedurally (not substantively) for exactly the same reason I did the day before).

But despite these obvious legal problems – which I again highlighted on June 7 and even raised the question of whether the Murphy DEP is intentional sabotaging their own regulations –  on June 21 NJ climate activists wrote a letter to Gov. Murphy demanding that DEP propose emergency rules.

Unfortunately, the activists don’t know what they are talking about. The activists don’t know the difference between the science supporting a “climate emergency” and legal requirements to justify “emergency rules.”

If DEP follows that recommendation it will be rejected by NJ Courts and inject years of even more destructive delay.

Regardless, that request was prominently and uncritically reported by NJ Spotlight.

So, in doing some followup research on this legal issue, I found a related decision by NJ Appellate Division that struck down DEP’s  2014 “Interim Specific Groundwater Quality Standard” (ISGWQS) for “forever chemicals” PFNA.

At the time, I warned that DEP’s proposal was illegal and violated the NJ APA:

“it is NOT adopted as a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.”

Of course, the chemical industry immediately sued DEP and won.

And of course, none of this got reported by the cheerleading media or criticized by environmental groups, but the corporate lawyers obviously know all about it.

So today, in hopes of avoiding another regulatory train wreck, I just wrote to warn DEP Commissioner LaTourette NOT to propose an emergency rule but instead follow traditional notice and comment rulemaking procedures:

Dear Commissioner LaTourette:

I am writing to urge your reconsideration of your publicly announced plans to propose upcoming Climate PACT rules in the form of an “emergency rule” under the NJ APA.

Such a plan is a clear violation of the APA, as pointed out in the Business Community’s letter to Gov. Murphy, and is therefore doomed to failure and will create even more delay in adopting necessary regulations.

As you know, NJ Courts closely scrutinize DEP’s regulatory actions, particularly on procedural grounds.

For example, as you may know, the Appellate Division struck down DEP’s “interim” IGWQS for PFNA on procedural grounds as a violation of the APA.

That Appellate Court decision (link below) is a roadmap to how Courts will analyze any DEP emergency rulemaking. The Appellate Division PFNA IGWQS decision relied on the NJ Supreme Court’s articulation of precedent on triggering APA procedural requirements for rulemaking (i.e. the Metromedia and University Cottage Club decisions).

FYI, just 4 days after DEP posted the ISGWQS on the DEP website (March 14, 2014), I warned that the IGWQS:

“it is NOT adopted a a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.”

http://www.wolfenotes.com/2014/03/is-dep-faking-it-on-proposed-new-draft-interim-groundwater-standard-for-pfna/

I’ve similarly been correctly warning DEP for decades about the need to adopt Natural Resource Damage regulations as well.

As you know, those warnings have been ignored and NJ Courts have rejected DEP NRD claims on that basis.

Let’s not repeat the same failures – please listen to my criticism, which are offered in good faith.

Bill Wolfe

Links to relevant documents on the PFNA IGWQS:

Appellate Division decision:

https://www.njcourts.gov/attorneys/assets/opinions/appellate/unpublished/a1439-15a1442-15a1917-15.pdf

law review

https://www.bracheichler.com/insights/the-new-jersey-appellate-division-invalidates-njdeps-isgwqc-for-pfna/

law review

https://www.mankogold.com/publications-CCNJ-NJDEP-ISGWQC-PFNA-Rulemaking.html

wolfenotes warning

http://www.wolfenotes.com/2014/03/is-dep-faking-it-on-proposed-new-draft-interim-groundwater-standard-for-pfna/

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Murphy DEP Commissioner LaTourette Urged To Provide Public Records On DEP Enforcement Actions At Ringwood Mines Superfund Site

June 25th, 2022 No comments

DEP Ford Lawsuit Seeks $100,000 Per Day In Civil Penalties For Violations  Of NJ Environmental Laws Over a 45 Year Period

The Murphy DEP and Attorney General issued a joint press release last week, touting their lawsuit against Ford Motor Company seeking public compensation for Ford’s Damages to Natural Resources (NRD) at the Ringwood Mines Superfund site.

I wrote an overview analysis to put that lawsuit in context and point out vulnerabilities.

In addition to the NRD aspects, I was intrigued by one particular aspect of the lawsuit, which seeks the award of $50,000 per day in civil penalties for violations of the NJ Solid Waste Management Act and NJ Soil Compensation And Control Act. (a total of $100,000 per day, for a period of about 45 years).

While DEP and the AG are not pursuing criminal indictments, those are the maximum civil penalties allowed under NJ environmental laws, and are rarely, if ever, sought by DEP.

I could not recall prior DEP enforcement actions against Ford at Ringwood, so my initial impression was that this was not a credible demand. For example, if I were a Judge, I would ask why should DEP ask a Court to impose penalties that they had failed to seek under their own administrative enforcement powers?

So, to get the facts on DEP’s enforcement actions against Ford, I filed an Open Public Records (OPRA) request and sent Commissioner LaTourette a note requesting his support for that inquiry.

Here is my email to Commissioner LaTourette – we’ll keep you posted on DEP’s response:

Dear Commissioner LaTourette:

Per DEP’s recent NRD lawsuit against Ford Motor Company regarding the Ringwood Mines Superfund site, I noticed that DEP is seeking, among other things, $50,000 per day Civil penalties for violations of the NJ Spill Compensation Control Act and NJ Solid Waste Management Act.

To clarify and provide public information regarding that provision of the DEP’s NRD lawsuit, I filed the below OPRA request.

In light of your professed commitments to transparency and the public interest, I would appreciate your support in responding to this OPRA request to ensure that it receives a fully compliant response.

“I request the following public records:

1) DEP compliance and enforcement actions (Notices of Violation, penalty assessments, settlement agreements, fines collected, etc) issued to Ford Motor Company for violations of the NJ Spill Compensation and Control Act, the NJ Solid Waste Management Act, NJ Water Pollution Control Act and other applicable NJ laws and DEP regulations for activities at the Ringwood Mines Superfund site;

2) Written communications between Ford Motor Company and the NJ DEP regarding compliance and enforcement activities for activities at the Ringwood Mines Superfund site.”

Thank you,

Bill Wolfe

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Senate Leaders Urged To Amend Solar Incentive Legislation To Prohibit Siting On Farms and Forests

June 24th, 2022 No comments

Subsidies To Lower Cost Siting On Farms and Forests Is Undermining More Appropriate Solar on Old Landfills and Brownfields

NJ Spotlight ran an Op-Ed today by the solar industry, warning of impending economic problems for solar projects, see:

The Op-Ed does a good job of outlining the problem and closes by urging public support of a partial legislative solution.

But the legislative solution is merely a stop gap measure – which new FERC rules may have solved – and does not address core economic issues that threaten the solar industry, one of which is subsidies to develop at cheaper locations such as farms and forests.

That pending legislation provides an excellent opportunity to fix a related problem in current laws, which provide subsidies to inappropriate siting locations, such as NJ’s vanishing farms and forests. 

Here is my note to the Senate sponsors, who include leadership: Senate President Scutari and Environment Committee Chairman Smith – seeking amendments. I urge readers to contact the Senators and make similar requests:

Dear Senators Smith and Scutari:

I read in NJ Spotlight Op-Ed today that you are sponsoring solar legislation:

Thankfully, the Legislature has taken it upon itself to right this wrong. Bills (S-2732 and A-4089), sponsored by Sens. Nick Scutari and Bob Smith and Assemblyman Wayne DeAngelo, will give deadline extensions to pending “subsection t” projects that are held up by the delays at PJM.”

As you know, is it cheaper to site grid scale solar projects on farms and in forests.

The lower costs of these inappropriate locations is part of the economic problems that undermine more appropriate siting on old landfills and brownfields. Mere deadline extension will not address these economic issues and will continue requirements for more public subsidies.

Accordingly, I urge you to amend this legislation to repeal current law and prohibit the siting of grid scale solar on farms or in forests. That will protect NJ’s vanishing open spaces and provide zero cost incentives to appropriate solar siting.

Respectfully,

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Olmsted Weeps

June 22nd, 2022 No comments

Assembly Committee Approves Billionaire Backed Bill To Develop Liberty State Park

Pearls Before Swine

Before even taking testimony this morning, the Chairman of the NJ Assembly State and Local Government Committee advised the standing room only audience that the bill would be released without amendments and that discussions with the Governor’s Office and Senate were ongoing.

So much for democracy and deliberation and civilized discourse.

As the testimony soon made clear, landscape design, aesthetics, and the philosophy and objectives of public park planning were the not on the agenda today.

Nor was there any kind of solidarity – parks are supposed to unite people in a common cause, not divide people.

Which takes me to Olmsted weeping.

Frederick Law Olmsted is best known for the design of Central Park, but his career spanned far more than that. He not only completed dozens of other public park designs, he was a leader in the early conservation movement and in the design of National Parks.

His landscape design principles were based on his:

conviction that nature has healing and restorative psychological effects on the individual and his equally strong belief that nature is a civilizing force in society. …

Olmsted believed that nature affects me (sic) emotions both psychologically and socially. Fresh air, sunlight, and abundant foliage improve physical and mental health through what he called me “unbending” of faculties that are placed under tension by the pressures of urban life, producing a sense of mental tranquility and rest, intellectual vigor, and a “temperate, good-natured, and healthy state of mind” (Olmsted 1997; 66).

The enjoyment of scenery employs the mind without fatigue and yet exercises it, tranquilizes it and yet enlivens it; and thus, through the influence of the mind over the body, gives the effect of refreshing rest and reinvigoration of me whole system. (Rybczynski 1999a, p. 258)

He thought that nature’s healing occurs through an unconscious process which the mind is influenced through the imagination, and he was also convinced that parks in urban areas would help to achieve this effect.

The chief end of a large park is an effect on the human organism by an action of what it presents to view, which action, like that of music, is of a kind that goes back of thought, and cannot be fully given the form of words. (Beveridge 1998, p. 31)

Olmsted integrated his landscape design principles with a democratic and egalitarian public social philosophy – public parks must be free and accessible to all, and private encroachments and commercialization must be resisted – not embraced!

But instead of reflecting upon and applying those principles, the discussion before the Committee degenerated basically into tragedy and farce: local residents expressed their legitimate rage for suffering decades of neglect, underinvestment, and having to live with the results of greedy developers. But, they expressed their resentment by blaming the very people who have protected Liberty State Park from those same greedy developers and corrupt politicians who had neglected and abused them for decades!

There was also a very ugly racial undertone – with black longtime residents and athletes resenting outsider white environmentalists.

The dynamics were kind of like Trump speaking in a de-industrialized rust belt community and blaming government bureaucrats and pointy headed intellectuals for their woes, instead of the greedy corporations who offshored their jobs and Wall Street vultures who financialized the economy.

Listening to the legitimate grievances by Jersey City residents being manipulated by a cynical billionaire golf course developer was truly sickening. I had to turn the audio off and go for a walk before it was over.

Procedurally, the Assembly bill and the amended Senate version go to the respective Budget and Appropriations Committees for consideration. Those Committees will hold hearings and likely amend the bills. Behind the scenes, the Gov.’s Office is weighing in and all sorts of deals are possible, given the proposed $250 million appropriations and the context of the budget negotiations. DEP Commissioner LaTourette is MIA and obviously not a player. Of course, there will be opportunities for Floor amendments in both Houses and the Gov. can veto or conditionally veto the bill.

At this point, I think Gov. Murphy should be targeted and asked to outright veto the bill, unless it meets very specific demands by park supporters (which I’ve heard referenced in testimony, but have not read. More to follow on that, along with an analysis of the Senate Committee amendments, which were window dressing). The Gov. could also “conditionally veto” the bill with the same demands, but that is less likely, given the deal that is likely to emerge.

Not much more to say right now. It is truly demoralizing to witness what a billionaire funded PR campaign can do and how destructive and polarizing the politics it can manipulate can become.

But I’d like to ask the Legislators and local resident supporting the legislation on the belief that it will benefit local residents and serve recreational and social needs:

Why then would would you oppose amendments that prohibited large scale commercial development and privatization, made specific allocations of the $250 million appropriated, and preserved Caven Point (the target of billionaire golf course developer Paul Fireman)?

The environmentalists and Friends of Liberty State Park have explicitly supported active recreation. Why can’t the local Fireman crowd reciprocate?

[Update: I just found this NY Times article, which does a good job exposing Fireman’s divisive PR campaign tactics. The national implications flow from the politics that Fireman is exploiting. The danger lies in this becoming a model; i.e. if a billionaire can fund a PR campaign that exploits legitimate urban minority grievances and drive a wedge in a way that promotes billionaire interests so easily, it will be used elsewhere. This could be not only the model, but also a new issue and opportunity for the right wing to exploit – after Stop the Steal, COVID anti-vax, attacks on Trans, CRT and school curriculum, they might move on to public parks. The right wing already did something similar by attacking public schools in urban black and minority communities with the Charter School movement.

The NJ Dems could be creating the next issue for the Right to exploit. Obviously, the billionaire class is watching closely. These are Trump politics.

See this NPR story:

Think about it this way. We’re talking about the same activists who appeared at the Unite the Right rally in Charlottesville in 2017 and infamously were chanting antisemitic chants and doing a lot of activity that made a lot of people feel really uncomfortable. When those same activists and groups showed up on January 6, they, by and large, were not wearing swastikas and using Nazi chants and wearing Klan uniforms. They were mostly uniformed as militiamen because that is a bid for public acceptance.

What they are always doing is looking for the open window – right? – the people that can be persuaded, recruited and radicalized further. And in our culture, with this intense political polarization that we’re experiencing, there is a larger and larger set of opportunities for these groups. And this kind of opportunistic mobilization is very well-practiced and is something that they have been working with for a very long time.

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