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After 12 Months In Office, Murphy DEP Proposes First Regulation, And It Is Awful

December 14th, 2018 No comments

Several Red Flags In Stormwater Rule Proposal Reflect Continuity With Christie DEP Policy

Proposal Would Codify Christie DEP Rollback of C1 Steam Buffer Protections

Proposal ignores climate change

On December 3, 2018, the Murphy DEP finally proposed its first regulation, after 12 months in power.

That is a record low number of regulatory proposals by any prior DEP.

The proposal is a major rule that makes significant policy and regulatory changes and will have significant negative impacts on development, water quality, flooding and DEP review of major projects, like proposed pipelines crossing NJ streams and urban “combined sewer overflow” systems.

The proposal was developed during the Christie DEP and reflects Christie DEP policy and priorities, not those stated by Gov. Murphy and DEP Commissioner McCabe, who have pledged to reverse the rollback course set by the Christie DEP.

The proposal has been a well kept secret thus far – it was not announced publicly by a DEP press release and there has been no news coverage of it thus far.

There are several major red flags that jump off the pages based on my preliminary review.

1. The proposal would codify the Christie DEP rollback of C1 steam buffer protections

Despite huge controversy, strong public opposition, and a legislative veto of the Christie C1 rollbacks, the Murphy proposal openly admits it not only would codify the Christie DEP C1 stream buffer rollbacks which allow “encroachments” into steam buffers that were prohibited by prior rules, it also fails to repeal and replace them with the original or more stringent regulatory protections:

The Department additionally proposes to update the existing reference to new encroachments in the special water resource protection area (SWRPA). The SWRPA was a 300-foot wide area adjacent to each side of water bodies designated as Category One waters pursuant to the Surface Water Quality Standards, N.J.A.C. 7:9B, and their associated perennial or intermittent streams that drained into or upstream of the Category One waters, which was intended to prevent adverse impacts resulting from stormwater runoff to Category One waters. As the Flood Hazard Area Control Act (FHACA) Rules also established a 300-foot riparian zone along Category One waters and a slightly different set of tributaries, in 2016, the Department deleted provisions related to the SWRPA from the Stormwater Management rules and incorporated new standards into the similar 300-foot riparian zone in the FHACA Rules in order to create a 300-foot buffer with uniform standards applicable to a uniform set of surface waters (see 47 N.J.R. 1041(a); 48 N.J.R. 1067(a)). To reflect this change, reference to the SWRPA is proposed to be replaced with reference to the 300-foot riparian zone contained in the FHACA Rules at N.J.A.C. 7:13-4.1(c)1. While protections previously provided to SWRPAs under the StormwaterManagement rules were incorporated into the FHACA Rules’ 300-foot riparian zone, local stormwater control ordinances may still include the SWRPA provisions or similar near-stream protected areas along Category One waters. Accordingly, in addition to reference to the FHACA Rules’ 300-foot riparian zone, it is also necessary to include new encroachments into 300-foot near-stream protected areas as an impact to be considered when determining if the grandfathering is still valid. Since the term SWRPA is no longer used in the Stormwater Management rules, it would be confusing to continue to use that term in N.J.A.C. 7:8-1.6(e). Accordingly, reference to 300-foot near-stream protected areas is proposed to be added at recodified N.J.A.C. 7:8-1.6(e)6 to reflect the similar protections that continue to be included in some municipal ordinances, regardless of what they may be referred to as in the particular ordinance. (p.48-49)

This is shameful – even the Legislature voted to veto the C1 buffer rollbacks as inconsistent with legislative intent.

There are several additional Christie DEP rollbacks that should have been repealed but were codified or ignored in the proposal. More to come about that as I conduct a more in depth review.

2 The proposal virtually ignores climate change

There are no new policies and regulatory standards to address current and projected impacts of climate change, including sea level rise, storm surge, increased rainfall frequency and intensity, drought, and heat waves and urban heat island effects – Or the need for carbon sequestration in soils and forests.

In fact, climate is mentioned exactly once, parenthetically, in the complex 169 page proposal, as an aside in a single sentence that makes a conclusion, with no supporting data. The DEP just threw it in there at the last minute:

Furthermore, the benefits of green infrastructure discussed in this notice of proposal help to improve community’s resiliency to the effects of climate change.

This is reckless and irresponsible.

3. The proposal is the result of the Christie DEP “by invitation only” Stakeholder process

The Christie DEP embarked on a “by invitation only” Stakeholder process that was not only dominated by business, industry, and development interests, but it also shut out critics and aggressive environmental advocates.

Gov. Christie issued Executive Order #2 to provide “regulatory relief” and make DEP rules, among other things, subject to “pre-proposal” review by business interests to avoid strict regulations and provide “advance notice” to allow special interests to intervene behind the scenes and block and weaken DEP rules. EO#2 explicitly seeks “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

The Murphy DEP now embraces the policies of EO#2 and implements the work product of that process.

Stakeholder Engagement

The Department developed the proposed new rules, repeals, and amendments with extensive input from a broad range of stakeholders. Stakeholders included representatives from environmental groups, developers, academia, municipalities, counties, regional agencies, and consultants, as well as representatives from the New Jersey Department of Agriculture, the New Jersey Department of Transportation, and the New Jersey Department of Community Affairs.

The Department held stakeholder meetings in 2014, to discuss changes proposed in this rulemaking, including the proposed change to replace nonstructural stormwater management strategies with specific strategies from the New Jersey Stormwater Best Management Practice (BMP) Manual. The Department held three stakeholder meetings in November 2016, to discuss many of the proposed changes, including green infrastructure as a replacement for nonstructural strategies and changes that impact communities with combined sewer systems. Changes pertaining to motor vehicle surface and averaging compliance across multiple drainage areas were stakeholdered in 2011 and 2012.

The Department held a stakeholder meeting in June 2017, to understand stakeholders’perspectives on whether there are site specific constraints that would prevent the use of green infrastructure BMPs. Stakeholders generally acknowledged that there may be cases of site constraints that cannot be overcome, but that the only condition for allowing utilization of non-green infrastructure BMPs should be for technical infeasibility. Stakeholders suggested requiring applicants to perform an alternatives analysis demonstrating that each green infrastructure BMP is technically infeasible for each drainage area, if the applicant seeks to use non-green infrastructure BMPs. Most stakeholders further expressed that cost should neither be considered in the alternatives analysis, nor factored into the decision whether to permit the use of non-green infrastructure BMPs. Stakeholders suggested a grandfathering provision allowing stormwater management designs already submitted to review agencies before the effective date of the rule to be reviewed under the rules in effect when the designs were submitted. Input received during the stakeholder process has been considered by the Department in formulating the amendments, new rules, and repeals proposed below.

The proposal makes some vague allusion to future stakeholder discussions – but that is ass backwards and puts the rollback cart before the more stringent new rules horse. It is not only bad public policy, but political malpractice to adopt a prior administration’s rollbacks while promising future improvements.

During this past stakeholder process, stakeholders expressed an interest in discussing issues beyond those addressed in this rulemaking. The Department is committed to continuing to hear andtake into consideration stakeholders’ perspectives on stormwater management issues. Therefore, the Department will hold additional stakeholder discussions to evaluate further potential future changes to N.J.A.C. 7:8 that are not part of this rulemaking and to the New Jersey Stormwater BMP Manual. Additionally, the Department plans to seek input on new efforts related to training and guidance. (p.5-7)

4. The proposal repeals prior regulatory mandates and replaces them by a slogan

“Green infrastructure” is more of a slogan than a policy and science based enforceable regulation, much like “smart growth”, “sustainable development”, “resilience”, and “environmental justice”.

The Department held three stakeholder meetings in November 2016, to discuss many of the proposed changes, including green infrastructure as a replacement for nonstructural strategies and changes that impact communities with combined sewer systems.

The Department is proposing amendments to the Stormwater Management rules, N.J.A.C. 7:8, to replace the current requirement that major developments incorporate nonstructural stormwater management strategies to the “maximum extent practicable” to meet groundwater recharge standards, stormwater runoff quantity standards, and stormwater runoff quality standards, with a requirement that green infrastructure be utilized to meet these same standards.

The current “maximum extent practicable” mandate was poorly implemented by a point system over-ruled by the Courts, but it should have been strengthened, not abandoned and repealed. Here’s DEP’s “excuse” for that:

As the Department began to implement the nonstructural strategies in the Stormwater Management rules, the Department observed that accurate assessment of whether nonstructural strategies proposed to be incorporated into a particular project satisfied therules’ requirement that such strategies be utilized to the “maximum extent practicable” was difficult, with the ultimate determination involving a measure of subjectivity.

Green infrastructure is an unenforceable slogan – as a policy, it may be OK, but not when it is used to replace enforceable technical requirements.

Here’s is DEP’s justification claim:

The use of green infrastructure BMPs, such as pervious paving, infiltration basins, and bioretention systems, will more effectively achieve the Department’s goals under the existing rules of reducing stormwater runoff volume, reducing erosion, encouraging infiltration and groundwater recharge, and of maintaining, or reproducing as closely as possible, the natural hydrologic cycle and minimizing the discharge of stormwater-related pollutants, such as TSS and nutrients.

There is no NJ specific data or science in the proposal to support that claim or that green infrastructure will be as protective as the current requirements it replaces.

More to follow.

5. The proposal reflects the Christie – Martin DEP regulatory “alignment” policy

A major initiative of the Christie Bob Martin DEP was to “align” various regulations to make it cheaper, easier and more certain for business to get DEP permits.

Alignment may sound good, but it lacks any scientific basis and conflicts with laws.

For example, the Legislature has mandated that DEP regulations in the environmentally sensitive Highlands and the Pinelands must be stricter  than those in the rest of the state. Alignment makes no sense and violates the law.

Here’s The Murphy McCabe DEP justification:

The Department is additionally proposing minor amendments to provisions in the Coastal Zone Management Rules, the Freshwater Wetlands Protection Act Rules, the Flood Hazard Area Control Act Rules, the New Jersey Pollutant Discharge Elimination System rules, and the Highlands Water Protection and Planning Act Rules in order to update cross-references and incorporate other changes consistent with the proposed amendments to the Stormwater Management rules.

Despite the fact that back in 2002, the McGreevey – Campbell DEP sought a failed “Big Map” regulatory strategy to distinguish regulatory requirements based on location and environmental sensitivity, the concept remains sound and is actually mandated by law.

Location based regulation is also the foundation of the policy and  planning area framework of the totally ignored NJ State Plan.

Instead of advancing that concept and complying with law, Murphy – McCabe parrot Christie policy.

6. The proposal has many loopholes and a broad “grandfathering provision”

The proposal would exempt many projects from so called new “green infrastructure” requirements:

The Department is proposing several amendments to N.J.A.C. 7:8-1.6 to provide a modified form of “grandfathering” that would be applicable to the changes being proposed at this time. In recognition that the proposed amendments, including the proposed amendment to require utilization of green infrastructure with very limited exception, could require significant redesign of projects that had similarly progressed in reliance on the existing rule requirements, the Department proposes to revise the dates that had been incorporated to provide limited“grandfathering” at N.J.A.C. 7:8-1.6(b) to reflect that major development qualifying for the exception will be subject to the requirements of the rules in effect one day before the operative date of this rulemaking (with the actual date one day prior to the date one year after publication of the notice of adoption in the New Jersey Register to be incorporated into the rule).

7. The proposal allows “mitigation”, “averaging” and watershed-wide compliance to escape enforceable requirements

There are many provisions in the proposal that let developers off the hook from various technical requirements at a site specific level.

A full discussion is beyond the scope of this post and will be addressed in future posts

8. The proposal repeals current water quality, stormwater volume, and groundwater recharge requirements

In addition, the proposal would allow “mitigation” to provide an exemption for nutrient and stormwater runoff water quality standards.

A full discussion is beyond the scope of this post and will be addressed in future posts

9. The proposal lays the foundation for approval of controversial pipelines and fossil infrastructure 

The public and anti-pipeline activists have finally begun to understand the regulatory framework for stopping pipelines and new gas power plants, including DEP water quality certificates. The issues were discussed in detail during the debate on prior Christie DEP rollbacks of DEP rules.

The proposal not only failed to address these crucial issues, it would repeal standards (e.g. Total Suspended Solids, TSS, nutrients) and codify major loopholes in current rules the make it difficult if not impossible for DEP to deny permits for pipelines.

A full discussion is beyond the scope of this post and will be addressed in future posts.

10. The proposal fails to close many known loopholes and correct flaws in existing rules

A full discussion is beyond the scope of this post and will be addressed in future posts.

This is just an overview. More to follow.

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Murphy DEP Repeats Lies About Failure To Adopt Protective Drinking Water Standards

December 10th, 2018 No comments

NJ Law Does NOT Authorize DEP To Consider Costs In Setting Standards

Risks of alternative chemicals highlight the failure of federal law – Ask Senator Booker

We’ve written many times about the multiple failures of the NJ DEP to adopt protective drinking water standards, and in particular, their failure to implement the best available science set forth in recommendations by the NJ Drinking Water Quality Institute (DWQI).

Most recently, we reiterated these concerns as context for a panel discussion sponsored by NJ Spotlight, see:

Today, NJ Spotlight reported on that panel discussion we were concerned about.

In an otherwise good article, again we see significant omissions in the coverage, see:

I)   DEP IS LYING

First, head of DEP Science Gary Buchanan, in response to criticism by Tracy Carlucchio of DEP “inexplicable foot-dragging” and failures to implement recommended drinking water standards of the DWQI, said this:

Gary Buchanan, the DEP’s director of science and research, held out little prospect that the MCL process can move any faster.

“State government does not move quickly,” he said. “It takes time to get things right. We want to use the right science, the best available science. We want to consider all the options. We want to talk to all of our stakeholders. We also have to look at costs.”

Buchanan is dead wrong – the NJ Safe Drinking Water Act does NOT authorize DEP to consider “costs” in setting drinking water standards. In fact, it prohibits consideration of costs by specifying explicit criteria upon which DEP shall set standards.

Here is the relevant text of the statute:

58:12A-13. Maximum contaminant levels of certain organic compounds; list of contaminants; rules and regulations

[a.]

b. The commissioner, after considering the recommendations of the Drinking Water Quality Institute, shall, within two years of the effective date of this amendatory and supplementary act and pursuant to the “AdministrativeProcedure Act,” P.L.1968,c.410(C.52:14B-1etseq.),adopt rules and regulations
which develop, within the limits of medical, scientific, and technological feasibility, a list of those pesticides and related compounds, metals, and base/neutral extractable organic compounds and acid extractable organic compounds which he believes may be found in drinking water and the presence of which above maximum contaminant levels in drinking water, upon ingestion or assimilation, may, on the basis of the best information available to the commissioner, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunction (including malfunctions in reproduction), or physical deformity; and establish, within the limits of medical scientific and technological feasibility, maximum contaminant levels for each chemical or chemical compound on the list which, with respect to carcinogens, permit cancer in no more than one in one million persons ingesting that chemical for a lifetime, and, with respect to other chemicals or chemical compounds on the list and those carcinogens resulting from compounds with public health benefits, eliminate within the limits of practicability and feasibility all adverse physiological effects which may result from ingestion; provided, however, that in no case shall the standard adopted by the commissioner for any chemical or chemical compound on the list be less stringent than that established for the same chemical or chemical compound by the United States Environmental Protection Agency, pursuant to the “Safe Drinking Water Act,” Pub.L. 93-523 (42 U.S.C. s. 300f et seq.), or any other federal agency.

Buchanan and DEP Commissioner McCabe must be called out on these egregious mis-statements of the NJ Safe Drinking Water Act.

II)  GO ASK BOOKER

Second, while exposing the failure to screen the toxicity of substitute chemicals, NJ Spotlight failed to note the key reason for that failure:

New Jersey’s nation-leading efforts to protect the public from a class of toxic chemicals in drinking water are being threatened by the emergence of substitutes that may be just as hazardous to human health, experts argue.

That failure is due to a federal law known as the Toxic Substances Control Act (TSCA).

The Toxic Substances Control Act (TSCA) is a United States law, passed by the United States Congress in 1976 and administered by the United States Environmental Protection Agency, that regulates the introduction of new or already existing chemicals.

TSCA was just overhauled in 2016 by legislation negotiated by NJ Senator Cory Booker – Here’s Booker’s self congratulatory press release:

“Congressional approval of this bipartisan chemical safety law is a major victory for our state and for the legacy of Sen. Frank Lautenberg who championed this fight.  I am proud of the long-overdue improvements I fought to include in this bill, including provisions that strengthen EPA’s ability to regulate toxic chemicals, provide EPA with dedicated funding, give more scrutiny to new chemicals before they come on the market, allow states to continue to co-enforce with EPA, and minimize animal testing when scientifically reliable alternatives exist. Despite long odds and difficult challenges, common sense and finding common ground won the day. I want to thank all of my colleagues on both sides of the aisle that came together to make this bill possible. I look forward to celebrating when President Obama signs this important chemical safety reform legislation into law, helping to keep American families and children safe from toxic chemicals.”

In May, Sen. Booker spoke on the Senate floor urging swift passage of the bipartisan, bicameral agreement on the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which makes badly needed reforms to the Toxic Substances Control Act of 1976.  His remarks can be viewed here.

To read the act, see:  

Someone needs to go ask Booker about all that.

We predicted this Booker sell out:

Bill Wolfe, director of the New Jersey office of Public Employees for Environmental Responsibility, said not having Lautenberg in the Senate is a “huge loss.” He would “step on toes to get things done,” whereas Wolfe said Booker is “the antitheses of that.” He called the former mayor a “calibrated corporate Democrat who worries about alienating Wall Street and corporate America.”

And called him out at the time of his sellout to – taking issue with Jeff Tittel’s praise of the TSCA deal. (looking for link, may have ben a tweet or private email).

Update – 12/12/18 – clarification. Tittel just sent me an email of a NJ.Com story where he is quoted as opposing the Booker deal on the basis of state pre-emption. I also opposed the deal on those grounds but the lack of toxicity screening and restrictions on new chemicals is not the result of preemption. Other major flaws. More to follow on this.

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Murphy DEP Commissioner McCabe Reiterates Pledge To Revise Key Highlands Clean Water Protections

December 10th, 2018 No comments

The press is reporting, based only on a DEP press release, that the DEP revoked the Christie Highlands septic density rollback, creating the false impression that the Murphy administration is being aggressive in protecting clean water – DON’T BE FOOLED. Here’s the real story.

Back in May, were were appalled by Murphy DEP Commissioner McCabe’s Senate confirmation testimony regarding, among many other things, the Highlands and the Christie DEP’s rollback of a key clean water protections known as the “septic density standard”. see:

III)  Highlands

Senator Smith, Chairman of the Environment Committee, led the charge to oppose the Christie DEP rollback of the Highlands Septic Density Standard, which resulted in a rare legislative veto of that rollback as “inconsistent with legislative intent” to prevent the degradation of high quality Highlands waters.

Smith asked McCabe about the status of the Christie Septic Density rule.

Remarkably, McCabe defended the Christie DEP rule, challenged Smith’s premises, downplayed the impact of the rollback, and pledged to re-propose another septic density rule!

Senator Smith:

In the old administration, there was an effort to change the Highlands septic density rules. The legislature .. invalidated those rules. ..Is there any plan to do anything?

McCabe replied:

I don’t think we need to do anything…. We’re back at the drawing board. I’ve taken a look at the science myself.

Frankly, I think what happened was failure to communicate between our scientists and the legislature.

So, we were not surprised that on Friday, DEP issued a misleading press release that purported to revoke the Christie DEP rollbacks, but which basically reiterated that prior testimony pledging to revise the pre-Christie Highlands Septic Density Standard and propose an unnecessary “new standard”.

The DEP press release stated:

The DEP is committed to carrying out the intent of the Highlands Water Protection and Planning Act, and to using the best available science to establish new septic density standards at a level that prevents the degradation of water quality, requires the restoration of water quality and protects ecological uses.

There is no reason to propose a new standard – the existing standard the Christie DEP sought to rollback is based on best available science, has been upheld by the Courts and strongly supported by the Legislature, and enjoys widespread public support.

Based on the Murphy Highlands record so far (Lisa Plevin as Ex. Director of Highlands Council, focus on voluntary local initiatives, no policy change at DEP, etc), it is highly unlikely that any new septic density standard McCabe proposed would be stricter than the original standard she just reinstated.

Not surprisingly, the naive incompetent hacks at the Highlands Coalition got it wrong, and praised this DEP manipulation.

In turn, that led NJ Spotlight to falsely praise the Murphy DEP is a misleading story today with a partially true headline:

Thankfully, Jeff Tittel got it right:

Jeff Tittel, director of the New Jersey Sierra Club, agreed. “If they’re still looking for a compromise, we’re still going to fight,’’ he said. “The legislation was very clear — they must maintain water quality.’’

Still, Ruga noted the revocation of the Christie regulation is significant because it was done before any new permits allowing for more expansive development were issued under the weaker standards.

And what the hell has gotten into Doug O’Malley? He’s lost his edge, and is closer to Ruga’s praise that Tittel’s correct analysis:

Doug O’Malley, director of Environment New Jersey, called the reversal “a long time coming to turn the page from the Christie era … and the final nail in his attempt to usurp legislative intent’’ of the 2004 law.

Perhaps even worse, the story missed the key to this whole story:

As we wrote, (way back in 2011) – a fact remarkably has gone un-reported by the media – the Christie DEP rollback was driven by a lawsuit by the Farm Bureau:

That [septic density] standard is under litigation by the NJ Farm Bureau. The DEP has filed a request that the Court postpone hearing of the case. The DEP Commissioner has signaled his intent to revisit that standard, which has survived an Administrative appeal and  been upheld by an Administrative Law Judge opinion and is the law of the land and duly promulgated regulation.

The Christie DEP sought to settle that lawsuit by agreeing to rollback the septic density standard.

What has become of that litigation? Is the Christie Martin DEP settlement still driving the change in regulations?

Will someone ASK DEP or shoot me an email and I’ll write about it.

No time to do that research now, from the incredible views of Big Sur from Los Padres National Forest.

bs6

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Greens Press NJ Gov. Murphy For Fossil Moratorium

December 6th, 2018 No comments

Gov. Murphy’s Climate and Energy Commitments On The Line 

Moratorium can kill pending fossil projects without new legislation

A broad coalition of over 50 climate, community and environmental groups yesterday kicked off the long awaited statewide campaign to pressure NJ Gov. Murphy to enact a moratorium on new fossil infrastructure (see: Dave Levitsky’s Burlington County Times story:

While the governor has restored the state’s participation in the Regional Greenhouse Gas Initiative and promoted solar and offshore wind energy development with the goal of the state having its power come entirely from clean or renewable sources by 2050, the assembled environmental groups said they had expected Murphy would have acted sooner to put a halt to gas pipelines and other fossil fuel projects.

“We have marched and protested, written letters and signed petitions, attended hearings and spoken in front of commissions for over three years,” said Agnes Marsala, president of the grassroots group, People Over Pipelines. “The only thing that gave us hope was the promise of a new administration in Trenton. We had hoped if we delayed until a new governor could begin to undo the damage caused by (former Gov. Chris) Christie and his fossil fuel cronies, there was a chance the (Southern Reliability Link) could be halted.”

“Murphy has been in charge now for 11 months and things remain unchanged … We need your help. You could stop the SRL and all new fossil fuel infrastructure with a stroke of a pen. Declare a moratorium now. Today,” she said.

Way to go Ag! (People Over Pipelines – photo))

I’ve written extensively about the moratorium issue, so will make just one important point today.

I hope that the campaign gets unified on this important point, because it is essential to holding the Gov. accountable, particularly given the Gov.’s Office initial response: (NJ Spotlight)

Asked to respond, Alyana Alfaro, deputy press secretary for the governor, said: “Governor Murphy has directed his team to take a hard look at energy infrastructure projects as part of an updated Energy Master Plan, which will set New Jersey on a path to 100 percent clean energy by 2050.’’

Gov. Murphy clearly has the executive power to declare a moratorium on BPU and DEP approvals of new fossil infrastructure.

The Gov. does not require new legislation to implement the moratorium.

The Gov. can not rely exclusively on the BPU Energy Master Plan process, but instead needs to step up, set policy, and direct BPU and DEP via Executive Order.

The Gov.’s moratorium can extend during a State planning and regulatory process by BPU and DEP and remain in place until new plans, policies and regulations are formally adopted by both BPU and DEP.

Prior Gov.’s Executive moratoria have survived legal challenge in NJ. Additionally, the use of a moratorium has been upheld by the US Supreme Court in the “Lake Tahoe” case, where a moratorium was linked to a planning process.

The moratorium can be implemented on a permanent basis, based on new BPU and DEP plans, policies and regulations developed while the moratorium was in effect.

There is no need for new legislation. All the pending fossil projects can be killed by the Gov.’s executive powers.

Gov. Murphy’s reliance on revisions to the BPU Energy Master Plan are not inconsistent with a moratorium.

The best model for how to do that is former Gov. Florio’s 120 day moratorium on State agency approvals of pending garbage incinerator projects, via Executive Order #8.

The key language of EO#8 is:

During the Task Force’s deliberations over the next 120 days, the following shall apply:

a. The Department of Environmental Protection shall not issue a final approval of any solid waste management plan that sites increases the capacity of or approves financing for waste-to-energy resource recovery facilities;

b. The Department of Environmental Protection shall not issue a approval of Preliminary or Final Environmental and Health Impact Statements for any waste-to-energy resource recovery site or facility;

c. The Department of Environmental Protection shall not issue tentative or final approval of any solid waste facility engineering design now pending or hereafter submitted for any waste-to-energy resource recovery facilities;

d. The Department of Environmental Protection, the Board of Public Utilities and the Division of Local Government Services within the Department of Community Affairs shall not, pursuant to N.J.S.A. 13:1E-136 et seq., issue any approval or conditional approval of any previously submitted proposed contract for the design, financing, construction, operation or maintenance of a waste-to-energy resource recovery facility; and

e. No State agency, commission or organization shall approve the issuance of debt or extend financing to any person or entity for use in planning, designing, acquiring, constructing, operating or maintaining a waste-to-energy resource recovery facility.

The Solid Waste Task Force submitted recommendations to Gov. Florio. The key recommendation was that garbage incineration was a “technology of last resort” and should be actively discouraged by DEP and not approved until other all options (i.e. source reduction, recycling, & composting) were exhausted.

Florio agreed with them and directed DEP to revise the State Solid Waste Management Plan based on those recommendations.

DEP then adopted a new Solid Waste Management Plan that erected barriers to incineration. All the pending garbage incinerators were killed by the Florio Order and new DEP Solid Waste Management Plan.

There was no new legislation required to kill the incinerators and shift the State policy and financial support from incineration to source reduction, maximum feasible recycling and composting.

Similar to the Florio new solid waste management plan and technology policy, fossil infrastructure could be declared a “technology of last resort” to be “phased out” to attain the Gov.’s 100% renewable energy goals and the GHG emission reductions of the Global Warming Response Act.

Just like source reduction, recycling and composting alternative strategies for garbage, Murphy could mandate new energy demand reduction, energy efficiency, renewable energy and smart grid policies as alternatives to  fossil infrastructure.

In the current case, Gov. Murphy could:

1) Issue an Executive Order that declared a climate emergency;

2) The Order would impose a moratorum on State agency approvals of new fossil infrastructure;

3) The Order would establish a Climate Emergency, fossil infrastructure, and renewable energy transition Task Force and direct them to make recommendations to BPU and DEP.

4) The Order would direct the Task force to focus on how to achieve the GHG emission reduction goals of the Global Warming Response Act and transition to Gov. Murphy’s 100% renewable energy goals.

5) The Order would direct BPU to revise the Energy Master Plan to comply with the Gov.’s approved recommendations and direct DEP to adopt regulations would enforce the recommendations.

It is important that folks working on the campaign clearly understand this and get that message to the Gov. and the media.

Don’t let the Gov. make an excuse that he needs new legislation and don’t let him rely exclusively on the BPU Energy Master Plan process.

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Senate Committee Advances Flawed Climate Bill, Rejects Demand For Enforceable Emissions Reductions and Pollution Fees

December 4th, 2018 No comments

Chairman Smith Defers To Murphy DEP On Whether To Regulate GHG Emissions 

Climate Activists and Environmental Community Support Sham

Senate Democrats spin – try to shift focus to “short lived pollutants”

  • It was not the Department’s intent to establish CO2 emissions permitting and regulatory requirements through the proposed amendments. The Department has modified the rules on adoption to except CO2 from existing air pollution regulatory and reporting requirements. ~~~ NJ DEP, 2005

  • Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce. .… Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past. The tradition of all dead generations weighs like a nightmare on the brains of the living. ~~~ Karl Marx, 1852

The Senate Environment Committee yesterday released a seriously flawed bill purported to accelerate greenhouse gas emissions reductions, a charade we predicted last week.

Committee Chairman Bob Smith rejected our requests – and the testimony of Jeff Tittel of NJ Sierra Club – to amend the bill to put teeth in it. Despite knowing exactly the charade that was underway, Tittel supported the bill.

But at least Tittel testified and requested amendments – the NJ LCV, Pinelands Preservation Alliance, & Environment NJ unconditionally supported the bill with no testimony. Where was Rethink NJ?

Importantly, Tittel also told the truth about the history of the failed 2007 Global Warming Response Act – another seriously flawed bill he supported during the Corzine administration and another charade we called out shortly after Gov. Corzine signed the bill into law in a Sunday October 7, 2007 Star Ledger Op-Ed, see: No Teeth In “Tough” Pollution Law.

IMG_4695-300x293Instead – illustrating the perverse principle that “arsonists are the best firefighters” – Smith identified and praised former DEP hack Jeanne Herb (like so many former DEP hacks, currently at Rutgers) for giving him the idea for the bill (or requesting it? Or writing it? We will file an OPRA to Rutgers to find out).

The “arsonist” principle applies here because Ms. Herb was directly involved in the 2005 GHG regulation charade by her boss, Brad Campbell, who, under the guise of regulating GHG emissions as pollutants under NJ law, very cowardly and cynically then exempted them from regulatory requirements. (see above DEP quote).

Herb then served under DEP Commissioner Lisa Jackson and was involved in the continuing 2007 GHG charade of the Global Warming Response Act and RGGI.

For the whole ugly history of all that, see:  A Decade After Passage of The NJ Global Warming Response Act: From “Toothless” to a “Dead Letter”

To round out the historical farce, we note that former DEP Commissioner Campbell, who deregulated GHG emissions under the guise of regulating them is now head of the Conservation Law Foundation.

Campbell’s bio touts his accomplishments as NJ DEP Commissioner (2002 – 2006):

As Commissioner of the New Jersey Department of Environmental Protection, a post he held for four years, Brad set the toughest standards in the nation to protect coastal areas, streams, and rivers from stormwater pollution; initiated and negotiated the Regional Greenhouse Gas Initiative (RGGI) to control greenhouse gas emissions from power plants; and developed and secured permanent protection for more than 800,000 acres of watershed lands under threat of development in New Jersey’s Highlands region.

Not surprisingly, while mentioning GHG emissions in the context of RGGI – a very poor negotiation as the original  GHG emissions pollution “cap” was 9% ABOVE then current GHG emissions

Campbell’s bio also is silent on his 2005 cynical charade on the regulatory front (as well as his later role in lobbying for a massive new coal power plant, Orwellianly known as “PurGen”, a $5 billion 750 MW coal plant).

But remarkably – now follow this very closely – Campbell’s recent CLF blog post brags about a huge victory in “cutting greenhouse gases” and links to this prior post about a CLF Victory: Highest Court in Massachusetts Enforces Global Warming Solutions Act:

In a sweeping unanimous opinion yesterday, the highest court in the Commonwealth confirmed that Massachusetts’s landmark 2008 climate protection law, the Global Warming Solutions Act, requires that the state take enforceable action to reduce greenhouse gas emissions on an annual basis in order to achieve the law’s 2050 greenhouse gas emissions reductions mandate. …

That is why CLF filed suit on behalf of a group of concerned Massachusetts teenagers and others when the state’s Department of Environmental Protection failed to promulgate regulations expressly required by the GWSA to set declining annual aggregate limits on the volume of greenhouse gases that could be emitted in the state.

Today the Court was crystal clear in handing those courageous teenagers, and the people of Massachusetts this resounding, unanimous victory: The GWSA is legally enforceable – not “merely aspirational” as the DEP repeatedly and wrongly insisted, and reducing GHG emissions to 80% of 1990 levels by 2050: “attain[ing] actual, measurable, and permanent emissions reductions in the Commonwealth” is the unambiguous law of the land!

Now recall that prior to the passage of NJ’s GWRA, Campbell laid the legal foundation for that failure in 2005 by deregulating GHG emissions!

Then consider that my 2007 Op-Ed explicitly focused on the failure to enact enforceable requirements. Note the shared use of the term “aspirational”  – voluntary goals I flagged as fatal in 2007 and echoed and revived by CLF over a decade later to reach the opposite conclusion: i.e. that theMassachusetts Court’s rejection of which was the basis of a “huge” legal victory.

A decade before, in 2007, I wrote:

But problems emerge after actually reading the law and gaining an understanding of its legislative history. Contrary to media coverage and political spin, simply put, the law amounts to little more than aspirational goals and a misleading sham. Here’s why….

The law — contrary to widespread media coverage — does not legally cap greenhouse gas emissions or mandate emissions reductions on any major pollution sources. As a result, the law’s theoretically “mandatory” goals are unenforceable and therefore a fiction. They amount to the same voluntary approach backed by the Bush administration.

Finally consider that exactly the same policy, legal, and regulatory issues are now on the table in Senator Smith’s bill.

Closing the circle: From tragedy to farce: (Earth Day 2005 photo)

- -- -- -Text: D.E.P. Commissioner Brad Campbell (left) argues with protestor Bill Wolfe (Coordinater for the Fast Track Appeal Campaign) outside of the RiverWinds complex prior to the start of Acting Gov. Richard Codey's press conference announcing a plan to clean up contamination along the Delaware River. JOHN ZIOMEK/Courier-Post

D.E.P. Commissioner Brad Campbell (left) argues with protestor Bill Wolfe (Coordinater for the Fast Track Appeal Campaign) outside of the RiverWinds complex prior to the start of Acting Gov. Richard Codey’s press conference announcing a plan to clean up contamination along the Delaware River. JOHN ZIOMEK/Courier-Post

Getting back to the Senate hearing, Smith then called on the DEP’s representative in the audience – presumably longtime DEP legislative liaison John Hazen – to go back and ask Commissioner McCabe if DEP would support amendments to the bill to mandate that DEP regulate GHG emissions and subject those emissions to DEP air pollution emissions fees. (currently set at $122.45 per ton).

I think we know where the Murphy Administration will come down on that, given:

1) Gov. Murphy’s failure to repeal draconian Christie Executive Orders #1 – #4;

2) DEP Commissioner McCabe’s failure to repeal and revise a host of Christie DEP regulatory rollbacks; and

3) the fact that the Gov. and DEP rely on and constantly tout rejoining RGGI as a major climate policy reform. But keep in mind that the RGGI program applies to less than 20% of NJ’s GHG emissions, that the RGGI allowance is about $3 per ton (compared to $122.45 for other air pollutants), and the NJ RGGI law has a legislative “reset” provision if the allowance exceed just $7 per ton. You can thank Senate President Sweeney for all that.

III) Democrats deny & spin

Finally, Smith voted the bill out of Committee and referred it to the Senate Budget and Appropriations Committee. That Committee is controlled by Senate President Sweeney.

I strongly doubt we will see any pro environment amendments to the bill as part of Sweeney’s intervention or that Committee’s review.

Instead, the bill will either die there (without a public hearing) or be amended with poison pills to worsen the current version.

To get a sense of where this is headed, consider finally the fact that the Senate Democrats issued a press release touting the bill, but very obviously trying to shif the focus to “short lived” GHG’s, instead of the larger flaws with respect to the bill, the DEP regulations, and the history of the GWRA and RGGI charades:

Screen Shot 2018-12-04 at 11.54.07 AM

Smith Bill to Establish Timeframe for DEP to Create a Strategy to Reduce Short-Lived Climate Pollutants
TRENTON Legislation sponsored by Senate Environment and Energy Committee Chair Bob Smith would establish new timeframes for the implementation of certain requirements in the “Global Warming Response Act” (GWRA) and require the Department of Environmental Protection (DEP) to adopt a strategy to reduce short-lived climate pollutants cleared the Senate Environment and Energy Committee today.
According to the Center for Climate and Energy Solutions, the main short-lived climate pollutants are black carbon, methane, tropospheric ozone and fluorinated gases.  Currently, fluorinated gases (HFC’s, perfluorocarbons (PFC’s), SF6 and NF3) account for 3% of domestic greenhouse gas emissions in terms of carbon dioxide equivalency.  The EPA has created several voluntary programs aimed at lowering these emissions.  Due to their immense contributions to climate change, reducing short-lived climate pollutants can be very cost-effective.  Actions taken in the immediate future to address them could slow the planet’s warming 0.6 degrees by the mid-century.
“Abusing the use of short-lived climate pollutants represent one of the many problems of our society today, that is we only think of short-term use and not long-term use,” said Senator Smith (D-Middlesex/Somerset).  “We have a real opportunity to change this culture and make sure we reduce and hopefully completely eliminate the use of short-lived climate pollutants.  In order for us to mitigate the current effects of climate change that we are now witnessing, we need to make drastic changes.”
The bill, S-3207, would also require the state to develop a comprehensive strategy to reduce emissions in the state of short-lived climate pollutants, such as black carbon, fluorinated gases, and methane.
Within 18 months after the date of enactment of the bill, the DEP would be required to adopt rules and regulations establishing a greenhouse gas emissions monitoring and reporting program.  Additionally, within 18 months after the date of enactment, and biennially thereafter, the DEP would be required to prepare a report on the status of the greenhouse gas emissions monitoring and reporting program, the current level of greenhouse gas emissions in the state, and the progress made toward compliance with the goals established in the GWRA.  Finally, within one year after the date of enactment, the bill would require the DEP to prepare a report recommending additional measures necessary to reduce greenhouse gas emissions to achieve the 2050 goal.

That press release is now circulating and misleading the media and climate activists.

Sweeney is smiling – still more farce: see Global Warming Bill Hijacked.

Like they say: you can’t make this shit up.

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