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Department Of Energy Report To Congress Casually Mentions Huge Unaddressed Risks

Over $800 BILLION Military Budget, But No Funds For Abandoned Uranium Mine Cleanup 

I’ve been reading government environmental documents and risk assessments for 5 decades now, and I don’t recall ever reading one like the US Department of Energy’s 2014 Report to Congress on the risks of abandoned uranium mines that served the US military’s nuclear weapons program, including the obscurantist title, see:

• Defense Related Uranium Mines (August 2014)

I happened upon this Report upon reading a devastating essay this morning. The essay objected to the “Oppenheimer” film and had a very clear title, please read it:

• Oppenheimer’s Deadly Legacy of Nuclear Terror

I am ashamed to admit that I knew very little about most of this “legacy” (despite having read the superb book “American Prometheus” that spurred the movie and having been roaming the southwest for the last 7 years in precisely the landscape of this legacy.)

Disgusted, I felt obligated to chase some links and learn about what was going on. I began with this 2014 DoE Report to Congress.

It is an astonishingly superficial and casual 20 page Report – bordering on negligence and coverup – particularly given the appallingly high cancer risks of 1 in 10 to nearby residents (consider that the next time some Democratic Party hack or faux climate activists tells you that no one ever died from nuclear power).

For context, NJ law establishes a 1 in a million cancer risk. The abandoned uranium mines pose a cancer risk 100,000 times greater. US EPA policy sets a risk range of 1 in ten thousand to 1 in a million. So this 1 in 10 risk is just astonishing and how DoE addresses it is simply scandalous.

My small group at DEP did more thorough work in 1985 documenting the risks from chemical plants. These were, by design, cursory reviews known as “Preliminary Assessments” (the first screening step in the remedial process).

The DoE Report found at least 4,225 abandoned mines, mostly in southwestern states, many on the lands of indigenous people and impacting the health of Native American people:

Despite estimating incredibly high cancer risk findings, the Report fails to provide the specific locations of these mines so that impacted people and communities could be warned and empowered to demand remedial actions.

The Report makes other astonishing findings, including the fact that: 1) the cleanup (reclamation and remediation) of these hazardous abandoned mines is not regulated; 2) there are no health based radiological cleanup standards; 3) there are enormous gaps in existing federal environmental mine related and remedial programs; 4) there are totally inadequate funds to cleanup and no funding source; and 5) implicitly, by omission, there is a serious lack of community awareness and involvement in cleanup.

In general, mines that provided ore to the AEC operated under provisions of the General Mining Law of 1872, as amended, under which there were no requirements for reclamation or remediation of mines when operation of them ended. As a consequence, many of them were left in an uncontrolled state

The Report also found a pattern of bureaucratic negligence, neglect, and lack of followup, even at US EPA:

EPA prepared a Report to Congress in 1983; the report made recommendations for regulations to control wastes and air emissions at uranium mines but did not request congressional action for a new remedial action program. In a similar report in 1985, EPA expressed concern that mine wastes may pose a threat to human health and the environment, but that EPA did not have enough information to conclude they do.

I need to do additional research – in the meantime, I urge you to read the Report.

[Update: Correction: I can’t say “no funds”. US DoE has a legacy mines program. Need to read up on that. But it looks like all they’ve done since the 2014 Report to Congress is conduct “field visits” at about 90% of the sites, with completion expected in 2024. That’s not even the first step of “preliminary assessment” in the remedial process. Here is the most recent “progress report” (2022) – cool maps, but not much happening. 

And it looks like they’ve done little and virtually no cleanup work on tribal and Navajo Nation lands:

In 2022, the DRUM program began V&V work on its tribal land campaign. The DRUM team developed a cooperative agreement with the Pueblo of Laguna in New Mexico to support and plan for V&V work. DRUM personnel conducted and completed V&V work at mines on Pueblo of Laguna land in August. The DRUM team developed an additional cooperative agreement with the Navajo Nation for their assistance with public outreach, operational planning, V&V work, and future safeguarding tasks. After many months of planning and collaborating with the Navajo Nation and other agency counterparts, LM began V&V work at mines on the Navajo Nation in October. In June, LM completed the work to assess the future resource needs and to make recommendations for future V&V activities on Spokane Tribe of Indians land.

But despite this, the Biden Secretary of Energy thinks they are doing great:

On January 18, 2023, LM was notified that the DRUM Program received the Secretary of Energy Achievement Award for work completed in 2022. According to the notice, “These awards are among the highest forms of internal, non-monetary recognition DOE Federal and contractor employees can receive.” This is the first time an LM program or project has ever received this award. ~~~ end update]

And please support the work of “Cleanup The Mines”, who are seeking

passage of the Uranium Exploration and Mining Accountability Act, which will ensure clean up of thousands of hazardous abandoned uranium mines throughout the United States.

• “Your Post Goes Against Our Community Standards So Only You Can See It”

[Update: 8/5/23 – Robert F. Kennedy, Jr. just filed a lawsuit against Google for violations of free speech rights. Read the lawsuit and watch the RFK, Jr. speech that Google took down from YouTube.

Prior to that, a federal District Court judge issued an opinion that documented widespread, systemic government censorship. Read the opinion too. ~~~ end update]

It is shameful that I have to begin by noting this, but anyone who knows me or reads what I write knows that I am not a science denier, racist, anti-semite, homophobic, misogynist, anti-trans, anti-vaxer, MAGA Trumper, Putin puppet, violent extremist, Fascist, et al. or distributor of disinformation, misinformation, libels, or any other intentional and/or malicious falsehoods or smears. This is all irrelevant anyway.

(if the government has now defined a whole new concept of “malinformation” including information that deviates from government diktat or criticizes government policy, then I am proud to be a distributor of “malinformation”)

So, let me say that I was appalled by how the Democrats in Congress just defended the indefensible, at yesterday’s House hearing on blatant censorship by the federal government (the hearing behavior was actually worse than the Democrats’ letter prior to the hearing).

I’d also like to go on record to document that I was one of the millions of Americans whose First Amendment rights were infringed upon and violated by the federal government.

The above post is clear evidence of that.

On January 8, 2021, I posted the photo above of myself and a group of environmental leaders from NJ on the Capitol steps. This group was selected and honored by Congressman Rush Holt (who signed the photo FB suppressed).

It was suppressed by Facebook.

At the time, I was not aware of the fact that Facebook’s rationale or motives to intentionally censor speech were at the direction of and under the coercion of the federal government. I now know that.

My intent was exactly the opposite of what I assume Facebook and the government’s intent was.

But my intent is irrelevant.

It was blatant and intolerable censorship. Period.

The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold. ~~~ US Supreme Court, NAACP v. Alabama (1958)

DEP Downplaying Global Warming Potential Of Methane Emissions

DEP Continues To Fail To Regulate Methane Emissions

On January 13, 2020, NJ Gov. Murphy signed into law legislation that mandates that BPU and DEP use a 20 year time horizon to calculate the global warming potential of methane, based on the Intergovernmental Panel on Climate Change Assessment Report, not the US EPA, not the NJ DEP science, and not based on prior DEP climate Reports and/or emissions inventories.

Buried at the bottom of Gov. Murphy’s Press Release, we find:

S3215 (Greenstein, Singleton/Zwicker, Mukherji, Swain) – Requires State to use 20-year time horizon and most recent Intergovernmental Panel on Climate Change Assessment Report when calculating global warming potential to measure global warming impact of greenhouse gases.

Methane is a potent greenhouse gas, with a warming potential far greater than carbon dioxide. And the warming potential is far greater over a 20 year period than over a 100 year period, which is why this law is so important: (International Energy Agency):

The Intergovernmental Panel on Climate Change (IPCC) has indicated a GWP for methane between 84-87 when considering its impact over a 20-year timeframe (GWP20) and between 28-36 when considering its impact over a 100-year timeframe (GWP100).

The bill’s Prime sponsor said:

Assemblyman Andrew Zwicker (D-Somerset, Mercer, Middlesex, Hunterdon): “The threat of global warming increases every day and while the President has given up our leadership position in curbing greenhouse gases on the world’s stage. This legislation New Jersey will take firm and calculated steps on how we regulate our emissions. Understanding that not all pollutants have the same impact  on the Earth’s warming, measuring the ‘global warming potential’ of gases over a 20-year time span will allow us to craft public policies that enable the State to better address how we’ll combat global warming.”

The law went into effect on January 13, 2020 as P.L. 2019, Chapter 319 and was codified as C.26:2C-59

Gov. Murphy and his DEP Commissioner LaTourette constantly claim to be climate leaders, so one would assume that they would aggressively implement this law at DEP and BPU programs that address methane emissions.

One would be very wrong.

Wading through the fine print of DEP’s recent air permits issued to municipal landfills, I noted that DEP issued the permits with estimates of the CO2 emissions presented as total CO2 equivalents in tons per year. But the permits also had a separate table on methane emissions that did not convert methane to CO2 equivalents.

The Millville City landfill draft air permit was open to public comment.

So, I wrote to DEP and asked them to provide their methodology for converting methane emissions to CO2 equivalents.

Today, DEP responded with a spreadsheet that used a conversion factor of 21X (see red arrow above).

That is lower than even the current 100 year timeframe (28 – 36X) , and clearly in violation of the law which mandates a 20 year timeframe and IPCC (84 – 87X).

So, DEP is grossly underestimating the global warming impacts of methane emissions, by at least a factor of 4.

And DEP is blatantly violating the law to do so.

Underestimating warming potential is bad, but much worse is the fact that DEP doesn’t even regulate methane emissions, meaning all those refineries, gas power plants, pipelines, and compressor and transmissions stations don’t control methane emissions or pay pollution emissions fees (and DEP has no legal basis to deny permits).

[Update: To understand the significance of using a 20 year horizon, see DEP’s GHG emissions inventory, where DEP again underestimates the impact of using GWP20 in the text. The reader must go to footnote #7 to learn that using GWP20 significantly increases total emissions and makes methane (and other long lived gases) the second largest source, at 31%) (see DEP, @ page 10)

[Update: NJ phased out coal power plants and replaced coal with natural gas. But gas can be worse than coal, when methane leaks are considered. A recent published study illustrates the significance of the 20 year horizon: (Evaluating net life-cycle greenhouse gas emissions intensities from gas and coal at varying methane leakage rates:

Numerous studies compare varying temporal and spatial climate impacts of gas utilization compared to coal on an electricity basis [7–9]. These studies find that, if 2%–5% of natural gas produced leaks along supply chains, the electricity generated by natural gas is on par with coal plants in terms of the climate impact over a 20 year timeframe [10–12]. Considering the climate impact over a 100 year time frame, methane leakage rates up to 9% from gas are reported to benefit the coal-to-gas shift in power plants in numerous geographies [7].

… We find that the benefits of gas do not outweigh coal at certain methane leakage rates.

Seems like DEP Commissioner LaTourette is too busy doing press events instead of managing his own agency.

I called out DEP Commissioner LaTourette, with a copy to legislative sponsors of the law and NJ press corps:

Dear Commissioner LaTourette:

Please be advised that the Department’s methane conversion factor for CO2 equivalents used in the Millville City landfill draft air permit violates NJ law. The Department used a 21X conversion factor, which is based on a 100 year timeframe (see below).

NJ law mandates that DEP calculate global warming potential of methane based on a 20 year time horizon:(emphasis mine):

C.26:2C-59 20-year time horizon for calculating global warming potential to measure global warming impact of greenhouse gases.

1. a. Whenever the Department of Environmental Protection, the Board of Public Utilities, or any other State agency calculates a global warming potential for the purposes of assessing the global warming impact of a greenhouse gas, the Department of Environmental Protection, the Board of Public Utilities, or other State agency shall use a 20-year time horizon.

https://pub.njleg.state.nj.us/Bills/2018/PL19/319_.PDF

This law took effect on January 13, 2020.

Please withdraw this Millville draft permit immediately and recalculate and re-public notice the revised draft permit..

Please call up all other landfill and all other air permits issued by DEP after January 13, 2020 that apply to methane emissions and public notice and amend them in accordance with law.

Please revise the Department’s methodology for air permitting and emissions inventory to comply with law for all future air and landfill permits and other methane emission sources.

Bill Wolfe

We’ll keep you posted on DEP’s response, if any. But obviously, they must withdraw the Millville City landfill draft permit.

DEP Hides Inaction Behind Vague Public Health Alerts

DEP Buries Public Criticism In Appendix 3

Wildland fire, which encompass both wildfire and prescribed fire, accounts for over 30% of emissions of primary PM_2.5emissions (U.S. EPA, 2021). ~~~ cited by Wolfenotes 2/10/23

I came across the above DEP air quality alert on fine particulate pollution (PM 2.5) from wildfire smoke yesterday on my Twitter feed (this DEP Commisisoner loves to Tweet!). My spin detection meter was immediately triggered.

In response, as usual, the NJ media again uncritically transcribed the DEP spin – and with absolutely no mention of the climate emergency (see today’s coverage:

• Air quality alert issued as smoke, haze from Canadian fires returns

I’ve been criticizing DEP’s flawed policies and inadequate responses to wildfire, forestry, climate, and air quality issues for some time now.

All those issues have become front burner issues (excuse the bad taste pun) given record extreme heat and widespread wildfires and choking unhealthy wildfire smoke.

In that vein, last week, I filed an Open Public Records Act (OPRA) for DEP and EPA documents on DEP’s recently submitted Clean Air Act State Implementation Plan (SIP) for fine particulate matter (PM 2.5). See this for flaws in that SIP:

• Murphy DEP Clean Air Plan for Fine Particulate Pollution (PM 2.5) Does Not Consider Smoke From Wildfires In Emissions Inventory

In curious timing, DEP finally replied to my OPRA request today (not coincidentally giving the DEP Press Office the jump and time to frame the issue and control the narrative in today’s media).

The DEP reply is revealing.

[Update: a friendly reader just sent me this YouTube video clip of a “disturbance in the kitchen”. It perfectly captures DEP’s bureaucratic non-responsive response!]

The DEP’s own replies to public comments submitted by Steve Fenichel, MD, a medical doctor, and myself expose significant public health risks and inadequate DEP regulatory action.

As usual, DEP buried the responses to public comments at the end of the SIP document in Appendix 3. My OPRA forced DEP to disclose that clearly:

2) public comments and DEP’s response to public comments on the January 2023 version:

Public Comments and Responses are in Appendix 3:  Public Participation:  appendix-3-pm2.5-sip-comments-response-7-6-23.pdf (nj.gov)

I urge readers to hit this link and read the issues raised and the DEP’s lame replies.

Here’s a taste of the important issues raised in a comment by Steve Fenichel, MD

As a physician who has lived and practiced medicine in the state of NJ for over 40 years, I am very concerned about the inadequate clean air standards in our state. This recently proposed amendment to NJ’s Clean Air Act falls short and should be much more stringent for the sake of the health of all our citizens. The federal EPA has proposed a revision, January 6, 2023, based on more recent science than used by NJDEP. EPA proposes the revision of “particulate matter” pollution standard from its present 12.0 micrograms per cubic meter (ug/m3) to within the 9.0 – 10.0 micrograms/cubic meter. “These are particles that can either be directly emitted into the air (primary PM) or be formed in the atmosphere from gaseous precursors such as sulfur dioxide, oxides of nitrogen, ammonia and non-methane volatile organic compounds (secondary particles”). (WHO, 2013)

These airborne particles are especially damaging to health as they are inhaled deep into the lungs, with the ultrafine ones able to get into the blood stream and circulate throughout the body. According to the American Lung Association, “Anyone who lives where particle pollution levels are high is at risk. Some people face higher risk, however. People at the greatest risk from particle pollution exposure include:

• Infants, children, and teens;
• People with lung disease, especially asthma, but also people with chronic
• obstructive pulmonary disease (COPD);
• People with cardiovascular disease;
• People of color;
• Current or former smokers;
• People with low incomes;
•  People who are obese.

This amendment is out of date, and completely inadequate given the gravity of the adverse health effects, and the present level of pollutants. The highest standard of measuring, monitoring, and mitigation of the causes of this deadly particulate matter pollution should be employed by the state. More time is needed to gather the most recent science in order for an informed decision to be made by the NJDEP. Postpone the decision until a full and comprehensive Public Hearing can take place, and the science to be employed is the most UpToDate.

It makes no sense for DEP to continue to work on, implement, and propose- and for EPA to allow NJ to continue with – this “maintenance” plan based on the old NAAQS standard, when new science has emerged, and EPA has just proposed new NAAQS that will result in a downward revision of the old existing NAAQS.

This is even more problematic in light of huge changes in policy and law, like NJ environmental justice law that regulates health “stressors” including but not limited to PM 2.5.

The “maintenance” plan concept makes no sense under these conditions. (SF)

In response to failure to consider the air pollution and health impacts of prescribed burns, DEP was forced to admit this:

There are no SIP required emission caps for prescribed burns.

In response to public comments and criticism of a failure to address the “urban heat island” effect, DEP was forced to admit that they rely on small bore and ineffective grant (not regulatory) programs:

NJ DEP is involved in initiatives that mitigate the impacts of the Urban Heat Island Effect. In January 2023, the NJDEP awarded the New Jersey Conservation Foundation with $1.3 million for their Throwin’ Shade: Greening the Capital City grant application, which will plant 1,000 trees throughout Trenton’s streets. Trees will be planted as part of NJDEP’s Natural Climate Solutions Grant Program. This project will sequester carbon, increase the urban tree canopy, and mitigate the urban heat-island effect, stormwater runoff, and poor water and air quality in Trenton.

Additionally, on March 21, 2022 NJDEP awarded 38 grants to promote the stewardship of urban and community trees and forests throughout New Jersey. The grants support Gov. Murphy’s environmental justice initiatives in vulnerable neighborhoods, with 75 percent of the funds awarded to municipalities with at least one overburdened community. Municipalities receiving grants in this category use funding to increase their urban canopy, increase the ecological services of their urban and community forest, and provide a cooler place to live.

There are several other controversial issues regarding: 1) monitoring, 2) impacts on EJ communities, 3) the climate emergency, 4) failure to fully quantify growing pollution emissions from new highway expansions, all pollution sources, and economic growth,, and 5) failure to mandate stricter pollution control measures, including those of the California Air Resources Board (CARB).

But you won’t read any of that criticism in the NJ media or from NJ environmental groups, who have become Murphy DEP cheerleaders, not DEP watchdogs.

Don’t hold your breath waiting for any of that.

Business Groups Challenge Board Of Public Utilities’ Authority To Regulate Greenhouse Gas Emissions

Business Groups Assert Radical “Major Questions” Doctrine

BPU’s Legal Vulnerability Must Be Eliminated Immediately By The Legislature

I’ve been reading NJ Spotlight articles about the business community’s attacks on BPU’s attempts to electrify the building sector.

Recent stories expand upon NJ Spotlight’s coverage of the business community’s drumbeat propaganda about the so called high cost of renewable power. They have been framed as a ridiculous right wing political attack on Gov. Murphy (e.g. “they’re coming to take our kitchen stoves”) and the Gov. appears to be in political retreat in response.

In the last 2 stories, the business community has claimed that BPU lacks legislative authority to regulate greenhouse gas emissions. They cite a “14 year old Appellate Division decision” – but don’t name it (in a related matter, I will write about the impact of the cap on solar in a future post).

NJ Spotlight buried this critical new issue in the sub-headline and final paragraph of the story, see:

• Turbulence as state agency rejects solar projects – BPU also postpones action on much-touted plan to begin electrifying buildings

“The BPU thought it could rush the approval of a major energy policy change that could ultimately cost New Jersey home and business owners hundreds of billions of dollars to implement,’’ said Sen. Anthony Bucco (R-Morris). “There also are serious concerns the BPU does not have the legal authority to set environmental policy for the state or to regulate carbon emissions, which is their clear intention.’’ 

Senator Bucco is making a very calculated and specific (“major policy change”)  litigation threat on behalf of his corporate paymasters in that quote (he could never get a Legislative veto of BPU actions through the Democrat controlled NJ Legislature).

Although I’ve written numerous times about the lack of DEP authority to regulate greenhouse gas emissions under the Global Warming Response Act  – DEP’s authority to regulate GHG emissions under NJ Air Pollution Control Act is clear – I found that claim astonishing and am embarrassed to admit that I knew nothing about such an obviously crucial legal decision.

If that legal claim is accurate, then BPU can not regulate the grid and energy infrastructure required to decarbonize the economy and transition to renewable energy.

If that claim is accurate, BPU has a major litigation vulnerability that must be eliminated immediately via passage of authorizing legislation.

After some Googling around, I just found the Appellate Division case.

It involved a 2005 McGreevey era BPU rule to require developers to pay for utility line extensions to areas not located in “smart growth” areas mapped under the State Plan. See:

• In re Centex Homes, LLC

Here is the core legal issue: (emphasis mine – citations omitted)

On the other hand, we have recognized that:

“[a]n administrative agency only has the powers that have been “expressly granted” by the Legislature and such “incidental powers [as] are reasonably necessary or appropriate to effectuate” those expressly granted powers. …. “Where there exists reasonable doubt as to whether such power is vested in the administrative body, the power is denied.” 

An agency’s regulation “`may not under the guise of interpretation . . . give the statute any greater effect than its language allows.'” … Furthermore, we have stated that when regulations are promulgated without explicit legislative authority and implicate “important policy questions,” they are better off decided by the Legislature.

My initial thoughts:

1) NJ has its own right wing “major questions” doctrine! – Who knew?

Here is the Appellate Court’s ruling (emphasis mine):

At the heart of the present appeal is whether the authority of the BPU to incorporate smart growth principles must be found in the statutory provisions enabling it to act in the field or whether such authority is properly derived from the general provisions of the State Planning Act. We hold the authority must be stated in the Board’s enabling statute or, if expressed in a general statutory provision, the authority must identify its intent to delegate additional or incidental powers to the administrative agency granted such authority.

The Appellate Court then proceeds to engage in the kind of “historical” statutory interpretation the US Supreme Court recently relied on to kill gun control legislation and eliminate a woman’s right to an abortion.

Looking at history, the NJ Appellate Court wrote:

In 1911, the BPU was not vested with the authority to consider environmental concerns (the BPU was not vested with that power until 1970, see L. 1970, c. 273). Thus, at the time of the enactment of N.J.S.A. 48:2-27, the Legislature could not have intended N.J.S.A. 48:2-27 to apply to environmental and land use concerns.

Important to note that climate change and greenhouse gas emissions were not part of the Legislative debate or legislative intent in the 1970 in enactment of  P.L. 1970, c. 273.

Although the Court cited broad BPU authority, recognized BPU’s discretion, suggested that this case was limited to service line extension, and went out of its way to note that “we are reluctant to invalidate the regulations of an administrative agency” , the legal reasoning is very dangerous.

The Court narrowly construed BPU’s environmental power:

To be sure, N.J.S.A. 48:2-23 provides that the Board may require a public utility to furnish safe, adequate and proper service, including in a manner that tends to conserve and preserve the quality of the environment and prevent the pollution of the waters, land and air of the State. More fully, the statute provides:

“The board may, after public hearing, upon notice, by order in writing, require any public utility to furnish safe, adequate and proper service, including furnishing and performance of service in a manner that tends to preserve and conserve the quality of the environment and prevent the pollution of the waters, land, and air of this State, . . . and to maintain its property and equipment in such condition as to enable it to do so.”  [ N.J.S.A. 48:2-23 (emphasis added).]

That language cannot be presumed to make environmental issues or land use issues the overriding consideration in a determination to extend service to a new residential development.

Although land use and climate issues are vastly different – and BPU has had a longstanding key role in protecting clean air via regulation – I am not aware of laws that specifically and explicitly delegate authority to BPU to regulate greenhouse gas emissions.

The Court read the statutory term “environment” very narrowly and imposed an impossible and absurd historical standard:

The BPU, on the other hand, argues that N.J.S.A. 48:2-23 confers a broad environmental mandate to integrate environmental considerations into all aspects of its decision-making, and that by preventing utilities from investing in environmentally sensitive areas, the BPU is, in fact, ensuring that the utility service is environmentally sensitive. We note that while the language of N.J.S.A. 48:2-23 requires that the BPU ensure environmental compliance by regulated utilities, it does not explicitly grant BPU with the broad environmental mandate it claims. We find that the statutory language of N.J.S.A. 48:2-23 itself does not provide a clear delineation of its scope, and there is no illuminating legislative history. …

The cases examining the environmental language of N.J.S.A.48:2-23 have never construed it to provide a general mandate as broad as is urged by the BPU in this case. … In that case, BPU was authorized to require that utilities abide by environmental laws; we did not state that BPU was authorized to make environmental law.

Keep in mind that there are no DEP regulations the address electrification and greenhouse gas emissions from buildings or the grid or electrical infrastructure, thus BPU must effectively “make environmental law”.

If the legal standard is that specific and explicitly delegation and  an “illuminating history” are required to authorize BPU to regulate on “major policy” issues like climate and regulation of greenhouse gas emissions, then BPU is highly vulnerable to legal challenge.

The Court also noted that the BPU regulations in question relied heavily on the State Plan and Executive Orders by Governor McGreevey.

There are direct parallels to the current BPU reliance on the Energy Master Plan and Gov. Murphy’s Executive Orders.

Keep in mind that right wing Federalist Society US Supreme Court Justices (Coney Barrett, Gorsuch) have been criticized for asserting this “radical” doctrine – and that doctrine just killed EPA climate and wetlands rules, see:

• No HEROES In Sight – US Supreme Court Spouts Handmaiden Tales

The NJ Appellate Court appears to impose exactly that “major questions” doctrine. Here is he concluding paragraph:

We understand that the Legislature has declared that smart growth is an important public policy goal, and in fact, its importance provides further reason to require legislative authorization before allowing smart growth principles to direct the course of BPU regulations where the authority for such direction is unclear. As has been observed, “a policy question of [great] significance lies in the legislative domain and should be resolved there. A court should not find such authority in an agency unless the statute under consideration confers it expressly or by unavoidable implication.” Cooper, supra, 56 N.J. at 598, 267 A.2d 533.

NJ and the NJ Supreme Court have a reputation as a liberal court and a liberal legal doctrine  – these decisions suggest otherwise.

2) The Legislature Refused To Codify The Court’s Narrow Interpretation & Approach To Delegation

I recall testifying in opposition to a bill sponsored by Assemblyman Burzichelli that would have legislatively codified this “important policy questions” doctrine.

In a March 13, 2011 post, I wrote:

The legislation involved (A2486 2R) (Burzichelli, D-Oil) would codify the Christie federal consistency policy – and go even further by prohibiting proposal of rules “not specifically authorized” by the legislature, a provision the sponsor stated would require legislative approval of more stringent rules prior to agency proposal. This would put the legislature in charge of rulemaking, a radical rollback in the modern framework of Administrative and environmental law, which are founded on a broad delegation doctrine, where the Legislature delegates power to executive branch agencies to use their scientific expertise to fill in the details of complex legislation.

That bill died.

Thus, ironically, there is no legislative authorization or legislative intent that would uphold the Court’s approach to delegation and narrow statutory interpretation.

3) Where Have The Press, Environmental Groups, and the Legislature Been?

I don’t recall this decision and find it amazing that such a critical decision that stripped BPU of authority and further gutted the State Plan never got any media or environmental group attention.

As you may know (Merrill Lynch sewer line to Hopewell, et al), this controversy came at a time when infrastructure, land use, and the State Plan were hot issues. The Highlands Act had just prohibited infrastructure extensions into the Preservation Area (I wrote that language!).

The decision was issued in late 2009, and the incoming Christie administration obviously did not appeal it. The Democratic Legislature never passed a bill to put the issue on his desk and make him veto it.

It looks like this decision will now be used to kill BPU’s ability to regulate to reduce GHG emissions.

Unreal.