US Supreme Court Review of EPA Mercury Rule Exposes Fatal Flaws In Gov. Christie’s Environmental Policy

March 24th, 2015 No comments

Christie’s craven policy puts industry profits above the health of NJ residents

Gov. Christie doesn’t want to talk about any of this and he’s happy that these extremely controversial issues remain buried in the regulatory weeds and DEP bureaucracy, places where NJ’s press corps dare not go.

Yesterday, in writing about the US Supreme Court’s review of an industry challenge to EPA’s mercury emission standard for power plants, I committed the same sin that I blast the NJ press corps for (e.g. all superficial politics, no policy).

I made a political argument that Gov. Christie was driven by his 2016 Presidential primary political ambitions in making a decision not to join with neighboring states in support of the EPA regulation.

So today, unlike the NJ press corps, I followup to explain why the decision – while politically expedient – also was consistent with the Gov.’s environmental policy.

This is the legal issue before the US Supreme Court in the mercury standard:

Whether EPA permissibly declined to consider the costs of regulation when it made its threshold determination to regulate hazardous air pollutants from power plants.

But that narrow legal question has far broader policy implications, which we now turn to.

  • Role of the state’s

The role of State’s is under attack by industry and their backers in Washington, who seek to limit and eliminate State “laboratories of democracy”, particularly with respect to establishing and enforcing State environmental standards that are stricter than national minimums.

That is what the preemption debate is about in the hugely controversial federal chemical safety bill currently under debate in Congress, carrying the Orwellian name of Frank Lauternberg. That bill would federal preempt – or legally prohibit – state’s abilities to regulate chemical safety.

Gov. Christie’s “federal consistency” policy is the flip side of that same industry federal preemption coin.

With no public debate, unilaterally, and via Executive power, Gov. Christie has stood the historic federalism framework on its head by by curbing regulations that are needed to implement State laws to be “consistent” with federal minimum.

Christie has adopted, by Executive Order #2, a “federal consistency” policy that actively discourages stricter NJ State standards as one means of providing “regulatory relief”:

State agencies shall, when promulgating proposed rules, not exceed the requirements of federal law except when required by State statute or in such circumstances where exceeding the requirements of federal law or regulation is necessary in order to achieve a New Jersey specific public policy goal.

So, of course, Christie doesn’t want to talk about a 15 State initiative that is based on the opposite of his policy: State leadership and strict standards.

The Supreme Court mercury case highlights the critically important role of the State’s in advancing public health and environmental protections.

As the State Attorneys General noted, the States acted aggressively to fill the void created by federal EPA abdication:

Faced with ongoing delays in the promulgation of Section 112 emission standards for power plants, many of the undersigned states implemented comprehensive controls on power plants within their own borders. Between 2000 and 2010, at least fifteen states [including NJ] enacted regulations requiring coal-fired power plants within their borders to reduce mercury emissions.

The State standards were enacted years BEFORE EPA finally acted and the State standards are far more stringent and protective of public health than the EPA standard.

As NJ based PSEG noted in their legal filing to the Supreme Court, the EPA federal standard is far less stringent that State standards and the standard EPA was legally authorized to adopt under the Clean Air Act:

Many states impose more stringent pollution control requirements than their neighbors because these controls are needed to attain air quality standards or to serve some other public health goal.  ...

EPA’s nearly exclusive use of Floor Standards is significant for another reason: it contradicts petitioners’ portrait of an agency determined to regulate as aggressively as possible. Had that been EPA’s motivation, EPA would certainly have adopted more aggressive emission standards under the authority of Section 112(d)(2). 42 U.S.C. § 7412(d)(2). That provision consigns the stringency of emission standards to a series of EPA administrative judgments about achievability, cost, non-air-quality health and environmental impacts and energy requirements, and even expressly authorizes a prohibition on hazardous emissions. .. Instead of exploiting this potent statutory authority to adopt more stringent standards, EPA imposed the least stringent standards the statute allows. 

NJ was one of those States that acted BEFORE EPA and more aggressively than EPA.

On August 1, 2005, DEP Commissioner Campbell proposed mercury power plant emission standards and those rules were adopted by DEP Commissioner Lisa Jackson on September 5, 2006.

Revealingly, Lisa Jackson signed a stricter mercury rule as NJ DEP Commissioner than the rule she signed six years later  as EPA Administrator.

Gov. Christie ignores all this NJ historical State leadership on mercury and strict environmental regulation because it reveal just how bad his own policy is.

It is simply remarkable that NJ’s largest polluter, PSEG,  - with facilities in the State’s Top 10 carbon polluters – is more supportive of an EPA regulation than the Governor of the State of NJ.

[Note: equally remarkable: PSEG unsuccessfully tried to convince Christie not to roll back NJ’s renewable energy goals.]

  • Use of Cost benefit analysis

The consideration of compliance costs and the role of cost benefit analysis is the core legal issue before the Supreme Court:

Whether EPA permissibly declined to consider the costs of regulation when it made its threshold determination to regulate hazardous air pollutants from power plants.

Congress directed EPA to consider public health before industry profits in regulating hazardous air pollutants.

But industry is arguing that EPA first must consider costs before deciding whether to regulate.

Governor Christie, again unilaterally, with no pubic debate, and via Executive Order #2, agreed with the industry argument.

Gov. Christie requires cost benefit analysis to be part of any DEP regulatory decisions:

For immediate relief from regulatory burdens, State agencies shall:

[a. - c.]

d. Employ the use of cost/benefit analyses, as well as scientific and economic research from other jurisdictions, including but not limited to the federal government when conducting an economic impact analysis on a proposed rule. 

So, of course Gov. Christie does not want to have any public discussion of how his craven policy puts industry profits above the health of NJ residents.

  • Abuse of Cost benefit analysis

Cost benefit analysis is an economic tool that historically has been used by industry to delay, weaken, and kill regulations that are designed to protect public health and the environment.

The tool is inherently biased because many health and environmental benefits can not be quantified or are difficult to quantify or are excluded altogether from traditional costs benefit analyses.

In addition to being biased and having questionable moral or ethical implications with respect to setting an economic value of people’s lives, CBA implicitly privatizes the commons and defines everything as a market commodity. On top of all that, CBA can be abused.

Since we are uncomfortable talking about a reduction in children’s brain function as a cost of doing business, we’ll let the lawyers from NJ based PSEG explain how cost benefit analysis was abused in this case:

Petitioners’ arguments are premised on a mischaracterization of the economic consequences of the Rule and EPA’s approach to benefit-cost analysis. The three petitioners’ briefs are intended to create the misapprehension that EPA found that the Rule would create only a few million dollars of benefits. The real story is quite different: EPA determined that the benefits of the Toxics Rule will be $37 to $90 billion, at least triple the costs of the Rule and Table 2. Petitioners’ rhetoric is not based on a comparison of all benefits to all costs, as proper economic analysis requires. Instead, petitioners exclude all unquantified benefits, and all quantified benefits other than the benefits of avoided IQ loss for children exposed to mercury through recreationally-caught fish. Nowhere do petitioners offer a legal or scientific rationale for ignoring over 99% of the benefits of the Toxics Rule.

EPA analyzed the costs and benefits of the Toxics Rule under Executive Orders 12866 and 13563, as it must with all major rules.  The purpose of these orders is to provide a detached, unblinking look at the benefits and costs of rulemaking, direct and indirect, quantified and unquantified. EPA applied best scientific practices and approved, peer-reviewed guidelines, and correctly showed that the benefits of the Rule vastly exceed the costs. See id. An independent peer review of EPA’s methodology submitted with Exelon’s comments on the proposed Toxics Rule confirmed EPA’s methodology and found that, if anything, EPA underestimated benefits and overestimated costs.

Petitioners’ criticism of EPA’s benefit-cost analysis appears to be that it is too inclusive, taking into account all costs and all benefits, but this is exactly the point of the exercise. It is true that the Toxics Rule will yield reductions in conventional pollutants (e.g., fine particulates) in addition to reductions in hazardous pollutants. Congress would not be surprised at that result.

We have made exactly the same argument and explained how the Christie administration was abusing cost benefit analysis to exclude benefits, specifically with respect to blocking off shire wind, see:

Again, of course Gov. Christie doesn’t want to talk about any of this and he’s happy that these extremely controversial issues remain buried in the regulatory weeds and DEP bureaucracy, places where NJ’s press corps dare not go.

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An Appeal To The Homies in Harding

March 24th, 2015 2 comments

A gnashing of teeth among NJ’s elite

Whining whitebread

a front yard in Harding NJ

a front yard in Harding NJ

I’ve previously written and posted photos to illustrate the conflict, to the point where I would have thought the targets of that criticism would be ashamed of themselves and lay low, but apparently some folks have no shame, see:

But, if you want another example of that shamelessness, check out this letter to the editor from the head of the NJ Highlands Coalition, whining about the lack of State funding to protect the backyards of the nobility up in Harding:

 … open space preservation in the future is going to be difficult in a new world with hardly any funding available …

Harding Township residents have long supported preserving key lands in town that protect the character of our community …

Implementation language on a bill to direct spending of those dollars is currently being vigorously debated in Trenton, but there is a very real possibility that Gov. (Chris) Christie will veto that legislation. Indeed, his proposed state budget instead allocates some of those funds to paying salaries of state park and Department of Environmental Protection (DEP) employees, and includes far less than the implementation bill to any acquisition.

Now we have a new paradigm that suggests the state and county will largely end helping purchase and protect open space. Towns and non-profits will be largely on their own.

Yikes! Poor Harding will have to survive all alone! Abandoned and adrift in that sea of wealth and social exclusion.

Gotta protect that community character! Keep out the riffraff.

I find this letter astounding – shockingly naive and selfish and parochial.

The author complains of a lack of funding from Trenton, yet the author was a leader of the gang that created the funding mess.

The public was never told before voting that the open space ballot question would steal funds from State Parks and core DEP water resource and toxic site cleanup programs.

I’ve spoken to scores of people about this, and virtually all say that they were not aware of any funding cuts and would never have voted YES if they had known.

The public is now finding that out, and is disgusted by the deception and shocked by the impacts.

Parks supporters and historic preservationists have risen up and gone to Trenton to fight to have their funds restored.

They will very soon be joined by those who understand the need to protect water resources, monitor and assess water quality, provide scientific support, and cleanup toxic waste sites – all DEP programs that were slashed by the open space ballot initiative.

Over 17 million people visit NJ state parks each year and there is a $400 million backlog in deferred capital maintenance – historic structures and facilities are literally crumbling.

The Open Space ballot stole ALL State Parks capital funds ($32 million/year) PLUS all revenues from leases and concessions that funded the operation of the Parks.

Did the author of this letter and her colleagues at the Keep It Green Coalition actually think that the Governor and Legislators would allocate open space funds to Harding, while closing state parks?

Did the author and the KIG actually think that their pet projects and staff would get funded while the tremendous needs of urban NJ continue to be ignored?

Did the author and the KIG forget all about how they marketed their Ballot Question with a deeply cynical and racist ad campaign that featured black children frolicking in parks? Stuff like this? Did they think urban Democratic legislators would simply forget all about that?

KIG advertsiment

KIG advertsiment

Did the author and the KIG actually think that the historic preservation advocates would just fold up the tent an walk away?

When confronted with these choices and huge public outrage, what did they think State policymakers would do?

By treachery and manipulation and pure selfish greed, the author and the Keep It Green coalition have generated a backlash and created huge animosity that has done irreparable harm to their organizations, their individual reputations, and the cause of open space preservation.

And now they have to gall to point fingers and whine about the mess they made?

A Harding NJ front yard

A Harding NJ front yard

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Christie DEP AWOL In US Supreme Court’s Review of EPA’s Coal Power Plant Mercury Standard

March 23rd, 2015 No comments

NJ’s laws & regulations are highlighted, but Christie fails to join neighboring AG’s Brief

Another example of Christie’s political ambitions

Christie Betrays NJ’s Clean Air Legacy – Defers to Faux “War On Coal”

… [EPA] found that seven percent of U.S. women of childbearing age were exposed to mercury levels exceeding the reference dose. Annually, several hundred thousand children born in the United States have been exposed in utero to unsafe mercury levels. The serious harms caused by prenatal exposure to low levels of mercury – including impaired attention, fine motor function, language skills, visual-spatial abilities, and verbal memory – limit children’s ability to learn and achieve.  ~~~ State AG’s amicus brief to Supreme Court

NJ has long been a national leader in protecting public health by establishing strict air pollution controls for in-state pollution sources and working cooperatively with northeastern states - including joining in lawsuits – to assure that EPA holds neighboring states accountable for the out of state pollution they export into NJ.

A major component of that effort has been in the scientific investigation of the environmental and public health risks of toxic mercury.

The DEP has backed that science up with strict regulations on all facets of mercury, especially air pollution control requirements.

Back in 1993, the Florio Administration established the strictest mercury emission standard in the world at the time for garbage incinerators. A little over a decade later, in 2004 DEP proposed strict mercury pollution controls on NJ power plants.

According to DEP

On July 14, 2006, DEP adopted new rules that require further reductions in mercury emissions from certain facilities.5 The rules called for up to a 90 percent reduction by 2008 of mercury emissions from the State’s 10 coal-fired boilers in power plants. The rules also required New Jersey’s five MSW incinerators to reduce mercury emissions at least 95 percent below 1990 levels by January 3, 2012. The new rules also mandated a reduction of mercury emissions by 75 percent by 2010 from the State’s iron and steel plants.

In 1990, Congress listed mercury as a “hazardous air pollutant” under the Clean Air Act and mandated that EPA adopt air pollution controls on power plants,  imposing what are known as Maximum Achievable Control Technology (MACT).

After two decades of EPA study and delay due to legal challenges by polluting industries, finally in February 2012, EPA adopted those MACT standards.

The dirty coal power industry immediately sued to block them.

On Wednesday, the US Supreme Court will hear oral arguments on the case.

Today’s NY Times editorial blasts the coal industry, see:

The name of the law at issue before the Supreme Court on Wednesday is the Clean Air Act. It is not the Coal Industry Protection Act, despite what that industry’s advocates seem to want the justices to believe.

Congress passed the legislation in 1970 and substantially strengthened it in 1990 to safeguard human health from air pollution generated by power plants, vehicles, incinerators and other sources.

One of the most toxic of these pollutants is mercury, a heavy metal that accumulates in waterways and the fish Americans eat. While mercury is particularly dangerous to the vulnerable, developing brains and nervous systems of young children and fetuses, the Environmental Protection Agency estimates that improved air-quality standards prevent the premature deaths of as many as 11,000 Americans each year from exposure to mercury and other toxic air pollutants.

Coal industry backers, notably the Senate’s majority leader, Mitch McConnell of Kentucky, view every regulation, whether aimed at protecting human lives or the future of the planet, as nothing more than a “war on coal.” But profits and human health are not mutually exclusive. To the contrary, the technology to meet the E.P.A.’s new mercury standards is already in place at most coal-fired power plants nationwide.

Senator McConnell is leading the charge – on behalf of dirty coal – in attacking the Obama EPA’s Clean Power Plan proposed rule that seeks to reduce CO2 emissions from existing power plants – what McConnell calls the Obama “War on Coal”.

[Note: in an unprecedented move, and despite NJ’s Global Warming Response Act emission reduction mandates, the Christie DEP joined McConnell in attacking EPA’s proposed rule, demanding that it be withdrawn – hit link to read DEP comment documents .]

The Union of Concerned Scientists filed an amicus brief that laid out the implications.

Even NJ based PSEG supports the EPA rule and has filed an amicus brief in the case. Amazing when the State’s largest polluter is out in from of the Governor and DEP in supporting emissions reductions.

Interestingly, an amicus brief filed to the Court by 15 State Attorneys General notes:

Faced with ongoing delays in the promulgation of Section 112 emission standards for power plants, many of the undersigned states implemented comprehensive controls on power plants within their own borders. Between 2000 and 2010, at least fifteen states [including NJ] enacted regulations requiring coal-fired power plants within their borders to reduce mercury emissions.

NJ was one of the first states to set emissions controls on mercury.

Given NJ’s legacy on aggressively defending clean air and DEP’s national leadership on mercury air pollution controls, it is simply outrageous that Gov. Christie refused to join our neighboring states – including Delaware, Maryland, New York, Connecticut, Rhode Island, New Hampshire, Vermont and Maine – in defending the EPA mercury rule.

Instead, Christie sided with dirty coal and joined the politics of the Republican reactionary attack on the faux Obama “War on Coal”.

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Multiple Pipeline, Rail Oil Shipments, and Off Shore LNG & Drilling Controversies Provide Huge Opportunity to Educate and Organize on Climate Change

March 21st, 2015 No comments

NJ Environmental Leaders Missing Huge Opportunities

Climate Change Must Be A Central Focus in Fossil Infrastructure Battles

Public Education & Organizing Needed On The Science of “Leave It In The Ground”

(Source: The Guardian)

(Source: The Guardian)

Right now in New Jersey, thousands of residents – many of whom were previously politically inactive or not affiliated with “environmental” groups or causes  - are turning out to public hearings and demonstrations to protest all forms of fossil infrastructure: pipelines, oil rail shipments, off shore LNG ports, electric transmission lines, and power plants.

The recent announcement by the Obama administration to open up the Atlantic coast to off shore oil and gas drilling has sparked huge public outrage, activating thousands more opponents of fossil infrastructure.

These battles provide enormous opportunities to inform, activate, and organize thousands of people to the common threads that link all these fossil infrastructure projects: climate change.

These battles provide “Occupy” like public platforms – events, protests, and formal public hearings – to gather huge groups of like minded people in a unified collective endeavor – politics and democracy in action – a means to build the climate movement.

These controversies can generate significant media coverage to shape public opinion and hold elected officials accountable.

As Bruce Dixon has written in his series: Organizing 101 in response to Ferguson and the “Black Lives Matter” movement:

It’s not a movement unless it’s organized, and it might never happen unless YOU organize it.

Unfortunately, I hope I’m wrong, but from where I sit, I don’t see this kind of advocacy and organizing happening.

I don’t see a unified climate campaign in NJ.

I don’t see dissemination of the science or policy analysis. I don’t see media message and talking points. I don’t see efforts to connect the various fossil infrastructure battles to a common set of related climate issue. And I don’t see efforts to educate and organize all the thousands of people now actively opposing these various fossil infrastructure projects.

I see little if any public eduction on the climate issue – particularly the most relevant science, which says that we must keep at least 80% of currently known fossil fuels reserves in the ground:

Leave fossil fuels buried to prevent climate change, study urges

The new analysis calls into question the gigantic sums of private and government investment being ploughed into exploration for new fossil fuel reserves, according to UCL’s Professor Paul Ekins, who conducted the research with McGlade. “In 2013, fossil fuel companies spent some $670bn (£443bn) on exploring for new oil and gas resources. One might ask why they are doing this when there is more in the ground than we can afford to burn,” he said….

“One lesson of this work is unmistakably obvious: when you’re in a hole, stop digging,” said Bill McKibben, co-founder of 350.org which is campaigning to get investors to dump their fossil fuel stocks. “These numbers show that unconventional and ‘extreme’ fossil fuel – Canada’s tar sands, for instance – simply have to stay in the ground.”

“Given these numbers, it makes literally no sense for the industry to go hunting for more fossil fuel,” McKibben said. “We’ve binged to the edge of our own destruction. The last thing we need now is to find a few more liquor stores to loot.”

Another strong climate related reason to oppose these fossil infrastructure projects is the impact that the massive capital investments and artificially low fossil fuel prices have on the economics and investment opportunities required for conversion to renewable zero carbon energy, see:

Climate issue are engaged in few, if any, of the arguments being advanced by opponents  of these various fossil infrastructure projects.

The climate issues are ignored in virtually all of the tons of media storied these controversies have generated.

NJ’s environmental leaders can and must do better – or new leadership and organizations must step up to fill the void.

And they will have to do it without funding from NJ’s elite foundations, who have abandoned politics and advocacy work.

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Moorestown Drinking Water Contamination Highlights Statewide Risks

March 20th, 2015 No comments

Assembly bill would mandate that DEP issue drinking water standard for toxic chemical

DEP failed to issue standards for 15 toxic chemicals recommended by Drinking Water Quality Institute

Christie DEP Ignores Science and Health Risks

The Assembly Environment Committee heard testimony and released a long overdue and important bill yesterday (A3954 [1R]) that would mandate that the DEP adopt a “Maximum Contaminant Level” (MCL) drinking water standard of 0.03 parts per billion for the chemical 1,2.3 trichloropropane (TCP).

Assemblyman Conaway (D-7) appeared to testify in support of his bill, which grew out of a situation in Moorestown – for the full story on that, see:

A contaminant not currently regulated by drinking-water standards has been found in Moorestown’s water supply, causing town officials to shut down two of its primary wells.

The chemical, 1,2,3-trichloropropane, is a man-made and persistent substance used for paint removal and other purposes. It has been classified a “likely” carcinogen by the U.S. Environmental Protection Agency.

There is quite a bit of history on the Moorestown contamination, which DEP has known about and failed to discloses, regulate, or warn people about for many years.

In fact, as I testified to the Committee in support of the bill, the Drinking Water Quality Institute (DWQI) recommended that DEP adopt an MCL for TCP way back in a March 2009 Report to DEP:

“1,2,3-trichloropropane is a contaminant of nematocides/fumigants applied to soil, also used for other industrial purposes. It is stable in the environment, and has been detected in public water systems, private wells, and in ground water at contaminated sites in New Jersey. There is no federal MCL for 1,2,3- trichloropropane. In 1999, NJDEP developed a drinking water guidance value of 0.025 ug/L for 1,2,3-trichloropropane, based on the analytical practical quantitation limit (PQL). Given its occurrence in New Jersey drinking water and its status as a potent carcinogen, selection of 1,2,3-trichloropropane for possible development of a health-based MCL was recommended.” (p.5)

That same March 2009 DWQI Report also recommended new or lower MCL’s be adopted for 12 other toxic chemicals that New Jersey residents are exposed to:

V. Conclusions

Based upon the Health Effects, Testing, and Treatment Subcommittee reviews, the Drinking Water Quality Institute recommends the actions summarized in Table 7:

  • … Lower the MCL for eight contaminants: benzene, carbon tetrachloride, 1,3- dichlorobenzene, 1,4-dichlorobenzene, 1,1-dichloroethane, 1,2-dichloroethane, 1,1,2- trichloroethane, and vinyl chloride. [...]
  • Establish MCLs for five contaminants not currently regulated: DCPA and degradates, formaldehyde, n-hexane, methyl ethyl ketone, and 1,2,3-trichloropropane. …

DEP simply recklessly ignored those DWQI recommendations.

DEP also ignored DWQI MCL recommendations for cancer causing radon 222 (February 2009) and a component of jet fuel, toxic perchlorate (October 2005).

As a result, thousands of people across the state – not just in Moorestown – are being exposed to unsafe levels of toxic chemicals known to be found in their drinking water without their knowledge and without any ability to take precautions to avoid that exposure.

This is simply wrong – it is an outrage that must end.

The Conaway Assembly bill (A3954 [1R]) finally provides a huge opportunity to fix this longstanding failure by DEP.

The Christie administration has tried to dismantle the DWQI and keep it from meeting.

The DWQI used to meet quarterly, but has met just once since September 2010, after powerful polluter Dupont opposed its recommendations to regulate another toxic chemical called PFOA.

As I testified, the Conaway bill needs to be amended to require that DEP adopt all prior DWQI recommended MCL’s that have been ignored by DEP.

At the hearing, I sat next to Assemblyman Conaway during my testimony. Chairwoman Spencer deferred to him regarding my recommendations to amend the bill to do this.

Conaway looked me in the eye and said he would consider that, I assume favorably because if he cares about the health of his constituents in Moorestown, he should care about the health of all New Jersey residents.

So, I’ve rearched out to the Assemblyman and I urge all of you to contact his office and your legislators to demand that the bill be amended to protect your drinking water.

We need a Senate companion bill so a Senate sponsors is needed too.

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