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Murphy DEP Commissioner LaTourette Gaslights On Environmental Justice

September 25th, 2021 No comments

DEP Delays Adopting Enforceable EJ Regulations

DEP Administrative Order Is Pure Window Dressing

Like the long delayed DEP “climate PACT” regulations, the DEP regulations to implement the seriously flawed NJ environmental justice law are similarly delayed.

Ironically, the issues are inter-related. Among many other major flaws in the EJ law, as I wrote:

Obviously, the Murphy administration is highly vulnerable to valid criticism for their failure to adopt those critical regulations, after almost 4 years in power.

This is criticism they are desperate to avoid, due to Gov. Murphy’s many exaggerated commitments on both climate and EJ policies, especially in the run-up to an election.

In response to these failures and delays, Murphy DEP Commissioner LaTourette issued ADMINISTRATIVE ORDER NO. 2021-25 on September 20, 2021 regarding implementation of the NJ environmental justice law.

Revealingly, that DEP Order is being spun by many, including one of NJ’s largest corporate law firms, as significant, e.g. this Orwellian titled piece:

EJ comes early? Are you kidding me?

The fact is that DEP has long delayed adopting EJ regulations, and this is by design, not just bureaucratic inertia.

Gee, I wonder why a corporate law firm would be spinning a story in favor of the Murphy DEP?

The corporate community (polluters & developers) –  which this law firm represents – know they have dodged a bullet with this sham Order and their lawyers are essentially pissing on our legs and telling us it’s raining.

The Order by DEP Commissioner LaTourette – a former corporate lawyer – is a gaslighting joke.

The EJ bill signed by the Gov. was amended to eliminate any deadline on DEP adoption of regulations. The original version of the bill had a 180 day effective date. That deadline was eliminated and replaced by this open ended mandate (note there is no enforceable legal (statutory) deadline for DEP to act to adopt regulations). Section 5 of the law provides:

The department shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B  1 et seq.) rules and regulations to implement the provisions of this act.

In addition to delay, we need to highlight a fundamental of administrative law.

Just like an Executive Order issued by the Governor, an Administrative Order of the DEP Commissioner does not have the force and effect of law and can not establish binding requirements on the private sector.  

That legal reality is the result of a concept called “due process”, where administrative agencies like DEP are required to go through formal procedures before imposing requirements on people and corporations. That process is called “public notice and comment rule-making” under the NJ Administrative Procedure Act.

An administrative Order is more like a press release or aspirational statement, than a binding regulation.

The DEP Administrative Order admits that:

WHEREAS, the Department cannot exercise the full extent of its authority under the Environmental Justice Law until these implementing regulations are duly promulgated;

Let that sink it – the DEP Order openly states that it can not be enforced until DEP adopts regulations.

As I previously noted, adoption of enforceable regulations is the core of the matter – and that the flaws in the legislation regarding those regulations destroyed any ability to actually achieve any real environmental justice benefits:

II)  EJ Bill Fails To Change The Rules of the Regulatory Game

As I previously wrote, that bill completely fails to address DEP’s regulatory algorithms – things like how DEP conducts “risk assessment” and local air quality impacts. […]

In order to provide environmental justice, environmental laws, DEP regulations, Technical Manuals, Guidance Documents, permit review methods, public participation processes, and permit decision criteria and standards must be changed.

Again, the pending EJ bill fails to do this, thereby giving DEP a pass to continue the status quo business as usual.

Virtually everything in the DEP Order is allowed under current law – almost all of the elements are procedural in nature.

For example, the DEP Commissioner already has the authority  and sometimes obligation (prior to the EJ law) to extend public comment periods, hold public hearings, respond to public comments, require permit applicants to respond to public comments, encourage informal engagement, etcetera.

THIS IS ALL CURRENT DEP PERMIT PRACTICE!

No new standards or requirements are established and the Order is not enforceable. Nothing will change as a result of this Order.

Don’t be fooled by gaslighting window dressing.

[End Note: DEP Commissioner LaTourette is a lawyer – who previously represented major corporate polluters – so he knows exactly what he is doing.

If he pulled a disingenuous, ineffective PR stunt like this while representing a corporate client, the partners in the firm would fire him.

It is conceivable that he could be subject to an unprofessional practice or ethics complaint before the NJ Bar Association for misleading legal statements and unprofessional and ethically suspect practice.

In my 35 years of DEP experience, on a legal matter of this policy significance, high public profile, and political sensitivity, there is no way that LaTourette issued that Order without prior consultation and approval of the Governor’s Office.

Which leads me to one of two conclusions, either:

a) the Gov. and his staff are incompetent and trust LaTourette, who duped them (this is highly unlikely, because the Attorney General’s Office’s sign-off is required on this);  or

b) there are some very cynical, manipulative and dishonest people in this Administration, including the Governor.

It is also likely that LaTourette at least gave a heads up to the business community (NJ BIA, NJ CIC, Chamber of Commerce, NJ Builders Assc. NAIOP, etc) if not consulted with the on the Order.

I wonder if the environmental justice community got similar consultation, or whether LaTourette just bamboozled them knowing (based on years of prior experience) that they would fall in line and not criticize it, if not salute it.

I expect the press corps to be bamboozled by all this inside baseball – they  never get in the weeds and take government officials statements at face value.  ~~~ end] 

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Adirondack Pond – Sunrise Dissent

September 24th, 2021 No comments

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PennEast Propaganda

September 23rd, 2021 No comments

Spin That Borders On Fake News

Gov. Murphy’s Sycophants Manufacture A Lie

[Update: 9/24/21 – The Philadelphia Inquirer does some real reporting, with new information (to me at least) which suggests the pipeline is indeed in trouble:

Four of the five companies have told investors recently that their investments in PennEast were “impaired,” including New Jersey Resources Corp., South Jersey Industries Inc., the Southern Co. Inc., and a subsidiary of UGI Corp. of Valley Forge, the project operator. The four companies wrote off about $354 million from their books, nearly their entire investment in PennEast.

But Gov. Murphy, the AG’s losing litigation strategy, DEP permit review, and sycophants like Tom Gilbert had very little to do with that corporate financial decision. ~~~ end update]

NJ Spotlight reported today that the PennEast pipeline company had entered into an agreement with the NJ Attorney General’s Office

The sub-headline to the story is:

Foes say company likely concluded that it wouldn’t get DEP permits

The only facts of the story relate to this:

The company’s decision not to pursue eminent-domain claims on 42 parcels of publicly owned land was announced in an agreement with the Attorney General’s office and recorded in a brief notice sent on Sept. 20 to the Third Circuit Court of Appeals, which is overseeing the company’s claims.

The “brief notice” is a purely procedural and voluntary agreement in principle:

Please be advised that the parties to these consolidated matters have agreed in principle to a stipulated voluntary dismissal of these matters. As such, the parties request that all forty-two (42) of these matters be sent back to the District Court for purposes of effectuating that stipulation.

This has nothing to do with DEP permits.

The Attorney General’s Office made no statement on the substance of the “agreement in principle”.

That temporary, voluntary, non-substantive, procedural “agreement” – which narrowly applies only to pending litigation involving 42 eminent domain claims on State land – was wildly spun by Gov. Murphy’s sycophants and cheerleaders as signaling the cancellation of the project due to the likely denial of DEP permits.

NJ Spotlight then printed this fact free speculative spin in a highly misleading way – from the headline through the entire narrative of the story – to mislead readers and create a completely false impression that the project is dead because DEP would not approve permits.

But the AG did exactly the opposite of the impression created by the Spotlight story and Murphy sycophants.

In the AG’s Office quote printed by Spotlight, the AG made these 3 crucial admissions, each one of which destroys the false narrative spun by Spotlight::

1) they confirmed that the PennEast pipeline was still pushing ahead with plans to build”

2) they admitted that the PenEast attempt to take State land by eminent domain was merely a “pause”

3) After creating a nationally damaging precedent and suffering a humiliating loss before the US Supreme Court, they doubled down on pending litigation, claiming “we will ultimately prevail in court” (the only NJ AG pending litigation is on the eminent domain issues, not DEP permits).

Here it is in its entirety:

“We are pleased that after three years of litigation, PennEast has finally paused on trying to take state land,” Moore said in a statement. “Although the company is still pushing ahead with plans to build an unnecessary and ill-conceived pipeline, we will continue to lead the fight against it, and we are confident that we will ultimately prevail in court.”

Notably absent from the story was a statement by the Murphy DEP itself – the agency that pipeline foes are claiming would deny permits.

And Spotlight repeated the lie that DEP previously denied PennEast permits.

Ironically, the source Spotlight quoted as claiming victory and falsely asserting that DEP would deny permits is the same guy who has failed to mount a focused campaign of public pressure on the Gov. and DEP and exactly those regulatory permit powers! (In another irony, this is an issue NJ Spotlight has failed to cover). Instead, this incompetent hack fought a losing battle for years at FERC and on public lands issues.

Remarkably, this is not the first time this fool prematurely and falsely spiked the ball. As I wrote:

Does anyone remember, no so long ago, when Tom Gilbert spiked the ball and claimed that a federal court had “stopped PennEast in its tracks”?

[Update – check out this Orwellian reconstruction of history these folks are spinning – from the lawyer who prompted the failed Supreme Court legal strategy on eminent domain: (E&E News)

If PennEast chooses to resume the process of seizing land for its pipeline, the developer would have to start from scratch, said Jennifer Danis, an attorney representing the New Jersey Conservation Foundation.

“It’s interesting to hear PennEast describe this as pausing the project due to regulatory uncertainty,” she said. “It has been our view from the data in the record all along that the project cannot be built consistent with Clean Water Act standards.”

“all along”? Are you kidding me? NJCF hardly mentioned the Clean Water Act, never demanded that DEP deny the WQC, and they focused almost exclusively on failed FERC and land conservation issues. ~~~ end update]

Apparently, no DEP permit applications were withdrawn or FERC proceedings cancelled – as evidenced by the AG’s own statement that “the company is still pushing ahead with plans to build” .

Obviously, the AG’s Office provided this vague “brief notice” and issued a press statement with the understanding that their sycophantic friends and lightweight press corps would spin the story exactly the way Spotlight did.

And they did that just weeks before an election, in the wake of the Ida flood disaster, a time when Gov. Murphy is extremely vulnerable to criticism of doing absolutely nothing to reduce greenhouse gas emissions and abdicating responsibility for failed “resilience” projects.

I fired off this note to reporter Jon Hurdle and his editor John Mooney:

The NJ AG’s Office is quoted admitted this:

the company is still pushing ahead with plans to build an unnecessary and ill-conceived pipeline

DEP made no statement on the regulatory policy of the Murphy Administration or the regulatory status of the project.

The company made no statement of terminating the project.

I think FERC recently provided a significant extension.

We’re on the eve of an election.

Yet you still spin this story as the project is dead.

This is spun so badly it’s Fake News.

Shame on you.

Wolfe

End Note: and while the sycophants and lightweight media are so focused on land owner and eminent domain issues, take a look at the FERC-ing climate policy elephant in the room they ignore:

FIRST GHG EMISSIONS ANALYSIS IN CERTIFICATION PROCESS

In the 2021 NOI, FERC asked how, “[i]n conducting an analysis of the impact of a project’s [greenhouse gas (GHG)] emissions, . . . the Commission [could] determine the significance of these emissions’ contributions to climate change.” Prior to its issuance of the 2021 NOI, FERC had never assessed in its certification process the GHG emissions of a proposed natural gas facility.

Just like FERC, NJ DEP does not consider climate impacts in its permit reviews and Clean Water Act Water Quality Certification – critical material facts the Murphy sycophants ands NJ Spotlight never tell you.  ~~~ end]

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View From The Bench

September 22nd, 2021 No comments

Just A Dream Some Of Us Had

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Sitting in a park in Paris France
Reading the news and it sure looks bad
They won’t give peace a chance
That was just a dream some of us had. ~~~ (“California” – Joni Mitchell, 1971)

Sitting in Congress Park in Saratoga Springs, NY ……………….

More photos and links coming. When I find a higher speed connection, I will update with links and more photos of the park and surrounding Victorian homes.

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Biden Administration Rejects IPCC Findings – IPCC Report Not “Sufficient Cause” To Stop Expansion Of Current Fossil Leasing

September 18th, 2021 No comments

Is The Honeymoon Over Yet?

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The following is the Biden Administration’s official scientific, legal, and regulatory assessment of the recent IPCC Report:

On August 9, 2021, the Intergovernmental Panel on Climate Change released a new report detailing observations of a rapidly changing climate in every region globally. This report does not present sufficient cause to supplement the EIS, at this time. See Stand Up for California! v. United States Dep’t of the Interior, 994 F.3d 616, 628 (D.C. Cir. 2021). The report as well as additional analysis of climate change may be a significant consideration in the Department’s decisions regarding oil and gas leasing programs in the future.

Those astonishing findings are found on page 7 of the Record of Decision for Gulf of Mexico Outer Continental Shelf Oil and Gas Lease Sale 257, approving federal leasing of over 78 million acres of the Gulf of Mexico for fossil fuel exploration.

If the IPCC Report – which essentially projects the end of human civilization – does not provide “sufficient cause” to stop the expansion of fossil extraction, what would it take?

Exactly what “cause” would be “sufficient”? How much science and data does it take? (and keep in mind that, in this case, the Biden administration is not talking about “sufficient cause” to justify the phase out of fossil, just stopping the expansion.)

And the regulatory application of this finding was merely for the NEPA basis for updating an EIS – not to support a permit or lease denial or revocation, which would require an even higher regulatory and scientific burden of proof to be “sufficient cause”!

In addition to finding the IPCC Report insufficient and neglecting to enforce the Biden Executive Order 1408, the Biden Administration effectively ignored the massive wildfires in the west and hurricanes and floods in the east. The Biden Administration found:

There are no new circumstances, information, or changes in the proposed action or its impacts that require supplementation of the 2018 GOM Supplemental EIS.

No new circumstances! No new information! No changes in impacts! Imagine that!

And the Biden administration did not even unequivocally commit to relying on the IPCC Report in future decisions regarding oil and gas leasing, noting that the Report merely “may be” relied on instead of “will be”,  with a date certain commitment, not some vague “future” time:

may be a significant consideration … in the future.

I am indebted to an article in Jacobin for learning of these findings, which should be page 1 news in every main stream media outlet in the country, because they expose the Biden climate policy as pure rhetoric – at best, totally inadequate, or, more critically, as I’ve written, a fraud.

Why are the beltway environmental groups still praising Biden? Why aren’t they organizing massive protests?

Thankfully, some environmental groups are at least challenging this legally: (from the brief)

Lease Sale 257 will result in the production of up to 1.12 billion barrels and 4.4 trillion cubic feet of fossil fuels over the next 50 years. The combustion of these fossil fuels for energy and transportation is the main human activity that emits carbon dioxide and contributes to a warming climate. The lease sale will thus contribute substantially to greenhouse gas pollution that, if not curbed, will exacerbate the climate crisis and burdens on communities in the Gulf of Mexico, which are already suffering from climate warming impacts like rising seas and worsening storms.

Here’s the larger story: (Jacobin):

With the help of the nonprofit public interest organization Earthjustice, several environmental and Gulf groups have now launched a lawsuit against the administration to stop the Gulf lease sale. The complaint argues that the environmental analysis behind the lease sale is based on outdated and arbitrary science, in violation of federal law.

“We’ve been very patient with his administration,” says Hallie Templeton, deputy legal director for Friends of the Earth, one of the environmental groups involved in the litigation. “The honeymoon’s over. It’s now September, they’ve been in office for eight months. It’s time for them to show that they have priorities and are meaningfully going to move in the right direction.

By way of comparison with the “Honeymoon” metaphor, the Murphy Administration has been in office for 4 YEARS – a lot more than Biden’s 8 months – and done nothing to regulate or reduce greenhouse gas emissions, yet NJ’s Green Mafia and media continue to cheerlead.

When will mainstream media reporters get into the regulatory weeds and report this story?

It should be a prominent part of every story on climate and every story on Biden climate, energy and infrastructure plans.

 Diamond Creek fire (taken on 7/27/17) I took on the border of the Pasayten Wilderness, seen from Hart’s Pass in Okanogan National Forest. S

Diamond Creek fire ( 7/27/17)  on the border of the Pasayten Wilderness, from Hart’s Pass in Okanogan National Forest

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