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Murphy Diversion Of $69 Million Of Volkswagen Funds Illustrates Blunder By Green Groups

April 20th, 2018 No comments

“Keep It Green” initially opposed dedication of NRD funds, later opposed dedication of cost recovery and enforcement penalties

Acting DEP Commissioner McCabe’s testimony to the Assembly Budget Committee this week revealed that $69 million in Volkswagen enforcement fines would be diverted to the General Fund (see NJ Spotlight story).

Actually, the DEP response to Office of Legislative Service (OLS) questions let that cat out of the bag. DEP replied as follows to an OLS question about the Volkswagen money:

Question: In October 2017, New Jersey reached a separate settlement agreement, totaling $69 million, with Volkswagen for violations of State law. How does the department plan to spend this money? Has the department sought, or will it be seeking, input on how to spend the money? What requirements and restrictions does the settlement agreement impose on how the money can be spent?

Answer: The settlement was negotiated by the Attorney General’s office for violations of the Air Pollution Control Act and the Consumer Fraud Protection Act. The $69 million penalty was directed to the General Fund, consistent with the disposition of all penalty receipts.

I find it appalling that DEP apparently had no role in negotiating the Volkswagen settlement, which McCabe blames on the Attorney General. I guess that answers troubling questions I asked about the AG’s rubber stamp of Gov. Christie’s paltry settlement with Big Oil on massive groundwater pollution:

Murphy’s Acting DEP Commissioner McCabe is an attorney and former US Justice Department natural resource lawyer, so surely she understands the legal and policy weaknesses of the Christie NRD legal policy and DEP program.

So why on earth did Murphy AG Grewal (and DEP McCabe) rubber stamp the Christie draft settlements BEFORE conducting a policy review and public process of reform, including promulgating DEP NRD regulations that the courts have found necessary?

But, more importantly, the Volkswagen diversion exposes a major error made by the Keep It Green Coalition and Legislators in the recent Constitutional Amendment to dedicate Natural Resource Damage (NRD) settlement monies. i.e. revealed in McCabe’s phrase “consistent with the disposition of all penalty receipts.”

In an effort to close a loophole and strengthen the proposed Constitutional Amendment to dedicate revenues from Natural Resource Damage (NRD) settlements, in a November 1, 2016 email to the sponsor Senator Smith (and post) I warned of exactly this problem and recommended the following amendments to dedicate enforcement penalty receipts like Volkswagen:

3. Expand the scope to include all enforcement revenues

The SCR is not precise regarding the settlements and revenues covered. For example, would a Water Pollution Control Act or Freshwater Wetlands Act settlement be included within the scope of the SCR? It appears not.

To promote the policy objectives of the SCR, all DEP enforcement revenues could be dedicated.

The other kind of settlements an revenues I asked for precision on include not only enforcement, but cost recovery and the Hazardous Discharge Site Cleanup Fund, which collected over $105 million in the last 2 years (FY’17 and FY’18, see attachments) and are not Constitutionally dedicated NRD funds.

But Senator Smith – and NJ Spotlight – were listening exclusively to the Keep It Green Coalition (KIG) and failed to amend his Resolution.

NJ Spotlight failed to even mention the issue in its cheerleading coverage.

The KIG coalition was simply too stupid to even understand the distinction between NRD settlement money, cost recovery, HDSCF and enforcement penalty receipts.

That was the second huge blunder by the KIG folks, who initially OPPOSED constitutional dedication of NRD money:

 [KIG] don’t want the public to figure out what a HUGE mistake they made by opposing dedication of Natural Resource Damage (NRD) settlement funds and expanding that NRD dedication to ALL cost recovery and enforcement settlement agreement funds.

The original introduced version of SCR84 included the NRD funds dedication. That provision could have been expanded by a simple amendment. Instead of seeking that amendment, the KIG fools OPPOSED IT ALL!


But in a Green version of the Peter Principle, they are swimming in millions of dollars of Foundation grants.

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Natural Gas Council Letter To Trump On State Role In “Hijacking” Pipeline Review Process Is Elephant In The Room In FERC Policy Review

April 20th, 2018 No comments

Media & pipeline opponents miss the point on State Water Quality Certificate powers

Gas industry clearly sees State 401 WQC power as its most serious threat

On April 10, 2018, a group of the largest fracking gas companies and the American Petroleum Institute, calling themselves the Natural Gas Council, wrote President Trump a letter, claiming that States were “hijacking” the FERC review process and “undermin[ing] the Federal Energy Regulatory Commission’s exclusive authority to approve interstate natural gas pipelines”:

The implementation of Clean Water Act Section 401, which provides states with the opportunity to consider the potential water quality impacts of infrastructure projects requiring federal approval, has proven particularly challenging and would benefit from further direction from the Administration beyond what was included in the Legislative Outline. Recent implementation of Section 401 has created much confusion and frustration and has resulted in significant delays to infrastructure projects. Moreover, some states are improperly using Section 401 to hijack the permitting process for pipelines that transport natural gas in interstate commerce.

The letter praised Trump’s Legislative Outline for Rebuilding Infrastructure in America and urged Trump to issue a directive to federal agencies that essentially would preempt State powers under the Clean Water Act:

In particular, lead federal permitting agencies should recognize their authority and obligation to define and implement the Section 401 process. This includes ensuring that a state is not manipulating the process through enforcement of the statutory time period and confirming state actions are related to applicable water quality standards. Where the process is not followed, the lead federal agency has the duty and obligation to find the Section 401 obligation waived for all federal authorizations required for the project. Other federal agencies must accept the waiver determination and move forward with implementing their statutory requirements for licensing and permitting of the proposed project.

By providing clear instruction on how the Section 401 process is to be implemented by lead federal permitting agencies, this Administration can ensure that Section 401 is implemented consistent with the Clean Water Act and with the principles of cooperative federalism.

The Gas Council’s letter frames and messages key issues of federalism, over-regulation, and infrastructure policy in a way that resonates with the right wing corporate interests that are driving the Trump administration, an argument that is music to their ears.

The Trump administration is likely to do the same deregulatory favors for the gas industry via FERC that the Pruitt EPA has done for coal, oil, and gas industries.

The Gas Council letter was written to Trump in an obvious attempt to influence the Federal Energy Regulatory Commission (FERC), which just began hearings to review its policy on natural gas pipelines.

The powerful gas industry – and their champions in Congress and the Trump administration – want more pipelines, more gas exports, and for FERC to expedite their current rubber stamp, making FERC approvals faster, cheaper, and more even reliable, while excluding pesky environmental groups and landowners.

Congress held hearings to send that message to FERC:

At the start of Tuesday’s three-hour hearing, Rep. Greg Walden (R-OR), chairman of the full House Energy and Commerce (E&C) Committee, said that as the nation’s generation mix shifts toward natural gas “we’re going to need more pipelines.”

“I am hopeful that Chairman [Kevin] McIntyre’s review of FERC’s procedures for evaluating applications for new gas pipelines will result in more efficient and timely decisions,” Walden said. “With our abundant shale resources, we can be entirely self-sufficient on natural gas, but we must construct new pipelines.”

The media and even NJ’s leading environmental Congressman Frank Pallone are narrowly focused on FERC and landowner interests (exercise of eminent domain).

They are oblivious to the real threat of FERC preemption of State Clean Water Act powers targeted by the natural gas industry: (gas industry daily)

But Rep. Frank Pallone (D-NJ), E&C’s ranking member, said he hopes FERC’s review of its 1999 gas pipeline certificate policy [PL18-1] will lead to greater protections for property owners.

“For years, I have expressed concern with the process FERC uses to review pipeline applications, and its tendency to green light the construction of potentially unnecessary pipeline projects,” Pallone said. “Homeowners in the path of a pipeline have little recourse to stop pipeline companies from seizing their land through eminent domain.

“It’s time for a new approach. I believe a more regional review of these projects should be implemented rather than the current process where every pipeline appears to be reviewed individually, without any consideration of the pipelines in the area.”

Meanwhile, NJ Spotlight has not reported on the Gas Council’s letter and continued its blackout of the 401 WQC issue, with a story today on the FERC review.

The Spotlight story parrots the same misfocus as the gas industry’s PR arm, see: FERC REVIEWS ITS POLICIES FOR APPROVING NATURAL-GAS PIPELINES

When will media, pipeline opponents and NJ legislative leaders address the Clean Water Act 401 WQC issue?

When will they begin to publicly call on Gov. Murphy to exercise that power to kill proposed pipelines, including PennEast?

The gas industry clearly sees that power as its most serious threat.

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Gov. Christie’s Executive Orders That Weakened Environmental Protections Are Still In Effect

April 19th, 2018 No comments

Gov. Murphy Has Not Revoked Christie “Regulatory Relief” Policy In Executive Orders

Policy Continuity at DEP – Sole Exception Is RGGI

One of the governors’ more influential powers in reference to directing the policy agenda is in their usage of executive orders. ~~~ Executive Prerogative: The Use of Executive Orders in New Jersey

Gov. Murphy, who criticized Gov. Christie’s environmental policies and campaigned on a platform characterized by the media as “bold green leadership”, was strongly backed by NJ’s environmental and conservation groups, who spent $335,000 to help elect Murphy.

However, a close read of Murphy’s “Protecting the Environment” policy plank of his platform reveals that it is vague, couched in terms of “building a green economy” thereby making economics co-equal with protections, and was limited to just 3 issues: climate change, protecting the shore, and preserving open space. He issued an issue specific policy on protecting the Delaware River from fracking (but not pipelines the carry fracked gas).

There is nothing about the need to restore DEP as an institution, strengthen the role of environmental regulation, or reform specific policies on clean air, clean water, toxic waste management, etc.

Murphy issued another campaign platform called “Building a Green Energy Economy”. It too was vague, but it embraced a more expansive issue set, including rejoining RGGI, promoting off shore wind, energy efficiency, solar, and energy storage.

But despite the ambiguity and narrow scope of Murphy’s policy agenda, the press and environmental groups applauded and, in my view, basically exaggerated Murphy’s commitment to protecting public health and the environment. That exaggeration and cheerleading continued after the election.

After the election, the Murphy Transition Team was stacked with corporate interests, moderate conservationists, and recycled Corzine era lobbyists. The Transition Report on Energy and the Environment did little to flesh out the details of the Gov.’s broad campaign themes in terms of advocating specific policies and regulations.

Thus far, we are deeply disturbed by the fact that, aside from rejoining RGGI, Murphy has shown more of a policy of continuity with the Christie Administration than a “shift at DEP” and a “clean break”:

“This is indicative of a sea change,” Doug O’Malley, director of Environment New Jersey, said of Mans’ appointment. “It’s completely breaking with the Christie era.”

Instead of a “sea change” and “complete break with the Christie era”, we’ve seen lots of evidence of continuity (again, with exception of fracking in the Delaware watershed, but only after the DRBC had already proposed rules to ban it).

At the federal level, while Trump EPA head Scott Pruitt is very vocal and very busy dismantling Obama era regulations, Gov. Murphy and his DEP Commissioner are silent on repeal of Christie Executive Orders and a host of regulatory rollbacks.

Like Gov. Christie, Gov. Murphy:

1. diverted $136 million of Clean Energy Funds – a “clear break” with his multiple campaign promises to restore NJ’s leadership on climate change.

2. diverted $69 million of Volkswagen settlement funds.

3. rubber stamped Christie’s NRD groundwater pollution settlements with Big Oil – an echo of Christie’s sweetheart deal with Exxon.

4. slashed DEP’s budget by at least $6.4 million

5. negotiated a billion dollar nuclear bailout bill with Senate President Sweeney’s gun to his head.

6. Caved to Senator Sweeney and compromised aggressive renewable energy goals as part of the nuke bailout legislative package.

7. maintained silence on the PennEast pipeline controversy, while filing a diversionary FERC lawsuit based on protecting private property rights, not water quality or addressing the climate crisis. Murphy’s AG also rejected PennEast compensation offers based on the economic value of public lands, not water quality and other  environmental impacts.

8. failed to take a position or try to block legislation that would promote Dupont’s ability to import and treat  fracking wastewater and dump into the Delaware River.  As a result of that lack of leadership, the bill is now on the Gov.’s desk.

9. Acting Commissioner McCabe has yet to be confirmed and is being held hostage by Senate President Sweeney. This essentially perpetuates Christie DEP policies.

10. McCabe installed Sweeney’s former Senate staffer, unqualified political operative Eric Wachter, as Chief of Staff.

11. McCabe hired former Gov. Corzine’s environmental policy aid, Deb Mans – while shutting out longtime NJ environmental leaders.

12. McCabe continued Christie’s abuse to allow the Water Supply Advisory Council to meet behind closed doors.

13. McCabe continues Christie DEP State Parks Concessions Policy

14. McCabe continues the Whitman to Christie pro-business, anti-regulatory, “flexible” streamlined permit” air pollution policy (a policy that impacts all DEP permit programs, not just air).

15. McCabe continues Christie DEP’s constant practice of downplaying public health risks and Press Office fact free propaganda on alleged improvements in water quality.

16. McCabe has continued to promote feel good and counter-productive voluntary “stewardship” policies.

17. McCabe has continued Christie’s “engineering” approach to shore protection.

The very first press release McCabe issued upon taking office was an ill advised move to double down on a terrible trifecta: 1) Gov. Christie’s climate denying shore engineering, 2) dredged material disposal, and 3) luxury boat subsidy policies (see: DEP LAUNCHES PROJECT TO REPAIR BEACHES ON LONG BEACH ISLAND USING MATERIALS DREDGED TO MAKE LITTLE EGG INLET CHANNEL SAFE (not to mention the personnel issues involved).

18. McCabe has yet to honor Murphy’s pledge to restore DEP Office of Climate Change and has not revised numerous Christie DEP misleading climate webpages.

19. McCabe has yet to follow through, after Murphy compared Dupont Pompton lakes to Love Canal, thereby emulating Christie DEP’s lip service to that community.

20. McCabe, as far as I can tell, has yet to reorganize DEP and establish her own management team.

But perhaps the most significant continuity is with Gov. Christie’s “regulatory relief” policy, codified in Christie Executive Orders #1, #2, #3, and #4.

Murphy clearly understands the importance of Executive Orders in establishing and communicating his policies, see:  GOV. MURPHY SIGNS EXECUTIVE ORDER FOR NJ TO REJOIN RGGI.

As I wrote:

… while Gov. Murphy has found the time to issue a series of hollow symbolic Executive Orders on promoting wind (just sandbagged by his BPU!), rejoining a lame RGGI – with a rhetorical EJ policy too – and another that establishes a Council on Economic Advisors that elevates the role of economics and undermines DEP’s role in climate, energy and water resource infrastructure policy, there are several really bad Executive Orders by Governor Christie that remain in place, including Executive Order #2 (“regulatory relief”; cost benefit analysis, and federal consistency policies) and Executive Order #3 (slash “job killing red tape”).

Christie’s rulemaking scheme in Executive Order #2 includes an “advanced notice of proposed rules”. This allows private parties, like the lawyers for major corporate polluters, the opportunity to conduct a “pre-proposal review” of any rule DEP is contemplating before it is published for public comment.

Worse, the stated policy objectives of this review process are to provide “immediate relief from regulatory burdens” and “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

As Eric Clapton said: “kill it before it grows”.

That is corruption in plain sight. Yet not one media report on it.

So Gov. Murphy’s continuing silence on and failure to repeal Christie’s Executive Orders is revealing and deeply troubling.

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Murphy DEP Plans Some “Big News” For Earth Week

April 18th, 2018 No comments

Watershed group to host Acting DEP Commissioner McCabe announcement

Prepare yourself for the Earth Week Spin Cycle

DEP whispering in the ears of friends

I hate to spill the beans, but couldn’t resist exposing what very likely will be another political game.

I’ve been a participant in (while employed as both a DEP official and leader in NJ ENGO’s) and seen this game played so many times before, it sickens me to see it happening all over again.  Please don’t think I’m cynical – as an “institutionalist””, like former FBI Director Comey, I’m just defending against erosion of basic institutional norms and values. Follow:

This morning, a NJ friend forwarded me an email announcement by the Stonybrook Millstone Watershed Association (SMWA) – titled “New DEP Commissioner, Big Reveal at Watershed Meeting” – touting upcoming “Big News” on April 23 (the day after Earth Day and start of Earth Week):

We’ve got big news to reveal at our annual meeting

Guest Speaker Catherine McCabe

Gov. Murphy’s nominee for Commissioner of th Department of Environmental Protection

Maybe Acting Commissioner McCabe will announce that Senate Judiciary Chair Scutari has defied Senate President Sweeney and posted her confirmation hearing sometime before July 1st? (so McCabe can’t be held hostage any more or played as a budget pawn).

Just joking.

But I think this could be the first time a DEP Commissioner was not confirmed before Earth Day.

But more likely, especially in light of the NJ Spotlight set up story today, McCabe will announce Gov. Murphy’s veto of the DuPont fracking wastewater bill now on his desk.  (see: WILL MURPHY LET COMPANY DUMP TREATED WASTEWATER INTO DELAWARE RIVER?)

We wrote about that fracking bill before it passed both houses, predicted its final passage, and called on Murphy to veto the bill and use the veto to criticize the sponsor, Senate President Sweeney, see: NJ Democrats Go From Banning Fracking Wastewater to Deregulating and Promoting It

Curiously the Spotlight story failed to note the bill’s history (i.e. the 2 Christie vetoes of Dem. ban bills) and that the U-turn bill was sponsored and championed by Senate President Sweeney.

In omitting all that, Spotlight ignores the larger political battle between Sweeney and Gov. Murphy. That amounts to a face saving measure for both the Democrats and Sweeney and makes it easier of the Gov. to veto the bill and not poke a finger in Sweeney’s eye. By writing an essentially misleading story, Spotlight signals that they’re in on the game (also note that the quotes by environmentalists make no demands of Gov. Murphy or criticisms of Sweeney).

The part of the game I’m most troubled by, however, is not the typical media and cynical legislative politics.

It’s the way DEP is playing the game – which amounts to making policy in the dark and communicating policy to the public for maximum PR spin benefit via whispers in the ears of the environmental friends of the administration.

It is inappropriate and just poor governing for a watershed group to have the inside track on policy development and for them to be given a  heads up on policy announcements.

How would environmental groups feel if the Petroleum Council, Chemistry Council, Builders Assc., or Chamber of Commerce put out an announcement to their members touting upcoming “Big News” from the DEP Commissioner?

(I once filed an ethics complaint for a similar DEP political “heads up” on inside information, but that was about a formal regulatory proceeding, which is very different from the “Big News” which I assume will not be regulatory, see: DEP COMMISSIONER GAVE INSIDE INFORMATION TO DEVELOPERS. The complaint was heard but dismissed.)

This is the third time I’ve learned of this DEP corrupt practice – I wrote about the first, when Sweeney mole DEP Chief of Staff Eric Wachter intervened in Pompton lakes.

The second time – which I didn’t write about but should have – was when Deputy Commissioner Deb Mans whispered in the ear of her friend, Highlands Coalition Director Julia Somers, about DEP’s so called “halt” on Sparta Mountain logging plans. That is Deb Mans’ essentially corrupt role: what I call “Keeping the Sheep In Line” via whisper campaigns.

The SBWSA “Big News” is strike three – and its not even May! Acting Commissioner McCabe is an experienced environmental lawyer and clearly knows better, so her tolerance of and now participation in these corrupt practices is disturbing.

Despite the DEP whisper campaign, don’t be fooled: a veto of this bill is no heavy lift, given that the Democrats twice passed and Gov. Christie twice vetoed Democratic bills to ban acceptance of fracking wastewater in NJ.

No way Gov. Murphy could sign a bill promoting fracking, which would not only contradict his campaign promises and his recent  “united front against fracking” event, but put him on the same page as Christie in supporting Dupont and fracking.

Aside from the politics, substantively, veto provides no environmental benefit either, because DuPont is not now accepting fracking wastewater and is not discharging treated fracking wastewater to the Delaware River.

If Dupont (Chemours) were to seek a DEP permit without the legislative exemption provided in the bill, it would be very unlikely for DEP to issue a permit for treating and disposing of fracking wastewater, due to the lack of available treatment technology for all the radiological and chemicals in fracking wastewater (the inability to get a DEP permit is why Dupont sought the exemption in the bill!) As I wrote:

At a minimum, the Murphy DEP would require a “treatability” study by Dupont to document all the radioactive and chemical compounds in fracking wastewater and develop protective treatment technology and enforceable NJPDES permit effluent limits. The Sweeney bill is designed to block this kind of DEP regulatory move and grandfather the existing permit from further DEP review (e.g. see this prior DEP study at Dupont for blocking discharge of VX nerve gas):

“(05/64) TRENTON — Department of Environmental Protection (DEP) Commissioner Bradley M. Campbell today released a draft surface water discharge permit for the DuPont Chambers Works plant in Salem County. The wastewater permit does not allow treatment of a neutralized VX nerve agent byproduct, which is part of a proposed plan by the U.S. Army and also under scrutiny by the federal Environmental Protection Agency (EPA) and Centers for Disease Control (CDC).”

So once again, Gov. Murphy will be a green hero for doing virtually nothing.

Just my guess about the “big news”.

Of course I could be wrong.

The “Big News” could be an announcement that DEP is killing the PennEast pipeline.

Now that sure would be big news and worthy of praise.

But I strongly doubt that it will be the news.

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Murphy DEP Continues Christie DEP Water Supply Advisory Council’s Practice Of Meeting Behind Closed Doors

April 17th, 2018 No comments

Once again, we see continuity, not reform. How long must we wait?

I just got another disappointing email from DEP staff which again shows continuity with bad practices begun by the Christie DEP. Here’s the story.

During the Christie administration – as well as prior administration’s – I was a regular attendee of meetings of the DEP’s Water Supply Advisory Council. These meetings are not well attended by the public or environmental groups – Rich Bizub of PPA was a regular, and various watershed groups would sporadically send a representative.

I would use those meetings in three ways: (and never paid a penny or received a Foundation grant to do so)

1) monitoring – to listen and learn what was going on;

2) advocacy – to ask tough science and regulatory policy questions during the public comment period and during technical presentations to the Council; and

3) writing and organizing – to bring the information and my assessment of what was going in DEP/WSAC on to the public via this blog and by sending various emails to reporters and environmental group leaders and citizens I was working with.

(BTW, I never saw a similar effort to inform the public by the environmental group representative of WSAC, a well paid professional with staff support and grants from major Foundations.)

My questions were rarely answered satisfactorily, but at least they usually were included in the minutes. WSAC members and DEP staffers generally perceived me as a pain in the ass.

As the controversy over the Christie DEP’s failure to update the Water Supply Master Plan intensified and critical press stories started being written, the DEP staff to the WSAC pressured the Council members to shut down the public participation opportunities to avoid continuing embarrassment of the DEP Commissioner and the Governor.

The WSAC did this by changing the process for the meetings to allow the WSAC to meet behind closed doors.

After the public comment session, the public was now asked to leave the room so the Council could deliberate, conduct business, and make their recommendations to the DEP Commissioner in private.

The meeting Agenda was revised to exclude the public and include a new item “Council Session”.

Perhaps Acting DEP Commissioner McCabe is unaware of this practice.

If so, either she has not done her homework or the DEP staff to the WSAC failed to brief her about the change in meeting practices made during the Christie/Martin DEP regime to exclude the public from the Councils’s deliberations.

Once again, we see continuity, not reform. How long must we wait?

PS – some may say that the new practice is appropriate and analogous to an “Executive Session”. But the WSAC has no formal administrative powers, all they do is make recommendations to the DEP Commissioner. The WSAC are not elected officials or government employees. They have no basis or justification for “Executive Session” confidential deliberation. 

Additionally, we need to understand the rationale for the change made by the Christie DEP. It was done in response to and to prevent critical media coverage.

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