Profiles In Climate Courage

September 23rd, 2017 No comments

[Update below]

After a decade of silence about the abject failure to plan for and implement the greenhouse gas emission reduction goals of the 2007 Global Warming Response Act, Rutgers University has finally issued a Report on the State of NJ’s efforts to achieve the goals of the GWRA.

That Rutgers Report got favorable media coverage by NJ Spotlight, which prompted my effort to set the context and history straight.

In addition to the climate policy history, I have been critical of the Rutgers academics’ repeated failures to engage the climate policy debate. I find that irresponsible, a violation of scientific ethics, and cowardly. I’ve written:

That is a “perspective” that is devoid of context and climate science.

David Robinson, NJ State Climatologist (...on one hand ...) (8/25/10)

I blame the State Climatologist David Robinson of Rutgers as well.

A recent presentation to the Pinelands Commission science series, provided another example of that.

Robinson, in an apparent effort to “temper” his “official” statements, actually mis-stated the science and the degree of scientific consensus.

Look at his powerpoint – note how Robinson poses the question and how he uses an erroneous and equivocal “preponderance of the evidence suggests” standard: […..]

During his Pinelands remarks, Robinson explicitly said that his public statements on climate change do not reflect his views as a scientist or as a tenured university professor or as an individual, but are more conservative and tempered because he is speaking in an official capacity as The State Climatologist.

Virtually everyone in the room knew what he meant: that he is intimidated by the political and/or economic implications of what he says.

NJ is ground zero for climate chaos, whether the issue is sea level rise; more frequent and intense storms; lurching from drought to flooding; or the ecological damage , such as southern pine beetles on Pinelands forests or the emerald ash borer on ash trees in NJ’s northern hardwood forests.

We need forceful and accurate statements by the scientists and media.

So, with that context in mind, in beginning to read the Rutgers Report this morning, this profile in courage jumped right off the page:

Although the authors do not make recommendations or advocate for any particular policy option or suite of options for New Jersey, we hope that the information in the report will be helpful in furthering dialogue and discussion about greenhouse gas emissions policy options for New Jersey.

Now that’s a real profile of Climate Courage and scientific integrity!

More to follow.

[Update: 10/11/17 – I just received a curious email, and was the sole recipient of it. It was anonymous (i.e. from no specific named individual) and lacked any text or introductory explanation about who sent it and why it was sent, titledRecent Climate Change Releases for New Jersey”. So, it appears that the folks at the Rutgers Climate Institute have fired back in response to the criticism below.

Ironically, I guess Rutgers missed the meaning of my post, which had to do with courage – if they think I mistakenly portrayed their work, they should have said so, not sent me that kind of email.

The email sent the following climate work. I have not reviewed it, but provide it here in fairness to Rutgers:

“Fall 2017 – New Jersey Climate Resources
New Videos
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A Decade After Passage of The NJ Global Warming Response Act: From “Toothless” to a “Dead Letter”

September 22nd, 2017 No comments

Cheerleaders and careerists emerge from a decade of hiding under their desks

[Update below]

This July marked the 10th anniversary of the highly touted 2007 NJ Global Warming Response Act.

Signed by Gov. Corzine, the legislature declared:

The Legislature therefore finds and declares that it is in the public interest to establish a greenhouse gas emissions reduction program to limit the level of Statewide greenhouse gas emissions, and greenhouse gas emissions from electricity generated outside the State but consumed in the State, to the 1990 level or below, of those emissions by the year 2020, and to reduce those emissions to 80% below the 2006 level by the year 2050.

Shortly thereafter, in an October 7, 2007 Sunday Star Ledger Op-Ed, we explained why the law was designed to fail (see: No teeth in ‘tough’ pollution law):

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.

Specifically, the law provides no regulatory authority, funding or staff for the DEP to take the necessary steps to implement and enforce the emission reduction goals. Instead, the DEP is kept on a tight leash and merely directed to develop a set of recommendations on how to meet the goals and to submit that proposed plan to the Legislature by June 2008. In passing the law, the Legislature merely kicked the can down the road, postponing hard choices for well over a year.

Perhaps even worse, any DEP powers to implement the goals of the law were explicitly narrowed. DEP’s role is limited to emissions monitoring and reporting progress in achieving the goals.

Then DEP Commissioner Lisa Jackson and the Corzine administration knowingly supported this “toothless” law and went right along with the castration of DEP and the legislative limits on their regulatory authority.

[*Update: While ignoring the legislative history and how the GWRA was revised during the legislative process, the Rutgers Report relies on this boilerplate – a thin reed – from section 42 of the GWRA to argue that the legislature did not limit DEP’s regulatory authority:

e. Nothing in this act shall impose any limit on the existing authority of the department, the Board of Public Utilities, or any other State department or agency to limit or regulate greenhouse gas emissions pursuant to law. ~~~ end update]

Not surprisingly, the Corzine DEP failed to meet even the initial deadline to submit a Report and and make recommendations required by the Act, a failure we were the only ones to note (NEW JERSEY MISSES FIRST GLOBAL WARMING TARGET):

Trenton — The Corzine Administration has failed to meet its first major statutory milestone in implementing the emission reduction goals of the highly touted Global Warming Response Act, according to Public Employees for Environmental Responsibility (PEER). A June 30th legal deadline for producing a plan identifying the legislative and regulatory “measures necessary to reduce greenhouse gas emissions” will not be met until September at the earliest.

The Corzine administration’s first program to attempt to meet the emission reduction goals of the Act – the so called “cap and trade” program called the Regional Greenhouse Gas Initiative (RGGI) – also was designed to fail, an inconvenient truth we noted at the time (NEW JERSEY TO SET CARBON CAPS ABOVE CURRENT EMISSION LEVELS):

Trenton — The Corzine Administration has unveiled a cap-and-trade program to reduce carbon dioxide (CO2) emissions that may do little to combat global warming, according to Public Employees for Environmental Responsibility (PEER). The proposed trading program sets emissions caps above current levels and contains numerous complex offsets and loopholes that undercut its effectiveness.

And again, in another failure, the DEP failed to meet the first deadline under RGGI, another inconvenient truth that we were the only ones to note (NEW JERSEY WILL MISS FIRST GREENHOUSE GAS ALLOWANCES AUCTION):

Trenton — The state of New Jersey will be on the sidelines watching the historic first auction of greenhouse gas pollution allowances under the Regional Greenhouse Gas Initiative or RGGI scheduled for this Thursday, September 25, 2008. New Jersey will also likely miss the next auction, slated for this December, according to Public Employees for Environmental Responsibility (PEER).

And when DEP finally did release the Report and recommendations mandated by the Act – a Report they still stamp as “Draft” – it was a weak effort (NEW JERSEY GREENHOUSE GAS PLAN FULL OF HOLES):

Washington, DC — A new plan for reducing greenhouses gases unveiled last week by the State of New Jersey raises far more questions than it resolves, according to Public Employees for Environmental Responsibility (PEER). Since the report was prepared under the supervision of the designated nominee for the next Administrator of the U.S. Environmental Protection Agency, the plan may foreshadow how the Obama administration addresses the challenge of global warming.

Following the election of Gov. Christie, things got even worse .

The GWR Act shifted from “toothless” to a “dead letter” (CHRISTIE SHREDS NEW JERSEY CLIMATE CHANGE PROGRAMS):

Trenton — New Jersey Governor Chris Christie has taken a wrecking ball to the state’s touted Global Warming Response Act, according to Public Employees for Environmental Responsibility (PEER). In recent weeks, the Christie administration has blocked required reporting from greenhouse gas sources, diverted $300 million in Clean Energy Funds dedicated to energy efficiency and proposed to zero out the state’s Office of Climate Change and Energy.

“New Jersey’s Global Warming Response Act is now a dead letter,” stated New Jersey PEER Director Bill Wolfe, referring to 2007 legislation regarded as the crowning environmental achievement of the Corzine administration. “Whatever progress on climate change we can expect will have to come from Washington, because Trenton has gone AWOL.”

We were the only environmental organization that had the expertise and integrity to tell the inconvenient truth about the Global Warming Response Act (and RGGI) and the Corzine and Christie DEP failures.

Virtually everyone else was cheerleading and misleading the public – or worse – hiding under their desks in fear of losing Foundation or DEP funding.

So, we obviously get very pissed off when NJ Spotlight – a GWRA and RGGI cheerleader – publishes a story today on a Report released by Rutgers that shockingly finds – drumroll, a la Claude Rains – with a blaring headline announcing that:

Wow! No shit, Sherlock.

The Rutgers Report –  provided as a link that I still can’t open – was written by *Ms. Jeanne Herb, the former head of the DEP’s Office of Policy, Planning and Science under the McGreevey and Corzine Administrations.

Ms. Herb oversaw DEP’s failed implementation of the GWRA, so it is a cruel irony that she now has the stones to write a Report about her own failure – and somehow that history is completely ignored by NJ Spotlight, including a decade of hiding under her desk up at Rutgers collecting a nice paycheck and health and pension benefits.

(I wouldn’t be surprised if the Rutgers Report was timed, in addition to what Spotlight describes as providing “a blueprint to the next administration” is also part of an effort to troll for a job with the “next administration”, which is very likely to be Democratic. In this regard, the Rutgers/Herb tactic is part of a much larger scheme where all the “moderate” environmental “leaders” who cowardly kept their powder dry or collaborated for the last 8 years of Christie rollbacks, are all out self promoting: suddenly appearing in the press and doing lavish events (e.g.: Mike Catania, Duke Farms, and the Rutgers climate conference and the NJ Spotlight Delaware River conference are just 2 recent examples of this self promotion).

Meanwhile, those that had the courage and integrity to tell the truth were marginalized, ignored, smeared, blacklisted, and defunded.

At least – after history has validated our criticism and projections – we can look ourselves in the mirror and sleep well at night.

*Full disclosure: I worked with Ms. Herb at DEP from 2002 – 2005.

[Update: Just now able to open the Rutgers Report (Saturday morning). We’ll do a separate post on it – but for now, right up front, get a kick out of this:

This report does not constitute legal advice. Consultation with a NJ attorney is recommended for further evaluation of state authorities and options.

The question of DEP’s legal authority to regulate greenhouse gases is very interesting. Here’s the thumbnail, which we will expand upon in a future post:

1. In 2005, DEP Commissioner Brad Campbell adopted regulations that defined GHG’s as “air contaminants” pursuant to the NJ Air Pollution Control Act. This legal basis anticipated the US Supreme Court’s decision in the Massachusetts case.

However, even Rutgers’ Report noted that these rules did not regulate GHG emissions – just the opposite, contrary to media and public understanding, DEP exempted them from regulation!

NJDEP has affirmed that “air pollution” as it is defined under the APCA is broad enough to encompass GHGs.872 In 2005, NJDEP promulgated a regulation that revised existing regulatory definitions to clarify that CO2—as a GHG—met the definition of an air pollutant under the Act.873. The agency exempted CO2 from existing regulatory requirements, but did require that stationary sources report emissions of CO2 and methane as an air pollutant.874 (see page 165)

Thanks Brad Campbell!

2. Subsequently, in 2007, the Legislature passed the Global Warming Response Act. The introduced version of the GWRA (A3301) included a provision that provided legal authority to DEP to regulate GHG emissions in order to achieve the goals of the Act (i.e. “enforceable limits”, see Section 4.a.(4)) and 5.a(2) (emphasis mine):

The rules and regulations shall also establish a series of enforceable limits that gradually reduce greenhouse gas emissions levels to the 2020 limit set by the department pursuant to section 4 of this act, and requirements on sources of greenhouse gas emissions to achieve these reductions. The first of these limits shall take effect on January 1, 2012, with additional limits taking effect on January 1 of subsequent years as determined by the department.

b. In developing these rules and regulations, the department shall take into account projected reductions in greenhouse gas emissions and other emissions reductions required pursuant to State emissions control programs otherwise established by law. The greenhouse gas emissions limits shall be expressed in total tons of allowable greenhouse gas emissions, expressed in carbon dioxide equivalents, and shall include, but shall not be limited to, all greenhouse gas emissions from the generation of electricity delivered by utilities and consumed in the State, whether generated in the State or imported into the State.

That regulatory power was stripped and the final version did not authorize DEP regulation of GHG and strictly limited DEP’s role to monitoring, reporting and recommendations to the Legislature. DEP was prohibited from regulating specific emission sources and setting “enforceable limits” to attain the numeric goals of the GWRA.

3. Subsequently, the legislature passed the RGGI “cap & trade” law – the Global Warming Solutions Fund Act.

This law established the RGGI program, and it strictly limited DEP’s regulatory authority to an emissions allowance program.

It did NOT authorize DEP regulation of GHG emissions to achieve the goals of the GWRA and effectively replaced DEP GHG emissions regulation with a market based “cap & trade” program.

I’m no lawyer, but my understanding of statutory interpretation (which I did learn in a Cornell law school class), suggests that if an administrative agency asserts novel authority to regulate and then the legislature subsequently introduces legislation to provide that authority but then strips that power upon passage of the law, and then acts to replace DEP regulation with a market based alternative, then a strong case can be made that the agency’s assertion of legal authority was not valid and that the legislature decided not to authorize DEP regulation.

By way of comparison, keep in mind that the Obama administration and Democratic Congress’ failed “cap and trade” bill (sponsored by Congressman Markey) explicitly stripped EPA of power to regulate GHG and established an alternative to regulation in the emissions trading program. I previously wrote about that in:

DISSONANCE ALERT: That bill also would have revoked EPA authority to regulate GHG under the Clean Air Act (Title VIII, Part C) (see NY Times for implications  “Greenhouse Gases Imperil Health, E.P.A. Announces“. Industry strongly opposes EPA regulation, and the ENGO backers of cap & trade conceded to this demand:

On June 26, 2009, the U.S. House of Representatives passed the Waxman-Markey climate change bill — the American Clean Energy and Security Act (H.R. 2454)– by a narrow vote of 219-212. As voted on by the House, this bill would amend the Clean Air Act to enact a cap-and-trade program (see Part VI.B.3) to reduce emissions of multiple greenhouse gases, including carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, some hydrofluorocarbon emissions, perfluorocarbons, and nitrogen tetrafluoride. Each gas would be given a carbon dioxide equivalent value, and the emissions trading program would apply to electricity-generating and other industrial sources that emit more than 25,000 tons per year of carbon dioxide equivalent. The program would seek a reduction of 17% from 2005 emissions levels by 2020 and an 83% reduction by 2050. Until 2025, electric and natural gas utilities and home heating oil suppliers would receive 55% of the emissions allowances for free, to protect consumers from energy price increases.

In addition, the bill would repeal the EPA’s authority to regulate greenhouse gas emissions through the Clean Air Act’s existing programs. (link – scroll down)

So the effort to strip EPA of authority to regulate GHG, described as a “right wing radical” Legislative proposal, was in the same Democratic sponsored cap/trade bill the environmentalists supported!

The claim that DEP has authority to regulate GHG is certainly no slam dunk –

More to follow.  ~~~~ end update]

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NJ Spotlight Seeks To Silence A Critic – Orwell Lives

September 21st, 2017 No comments

No light on highly questionable practices

[Intro Note: While NJ Spotlight bans me (for no stated reason), they have had no problem over many years with many demented commenters (climate deniers, et al), including those who engage in nasty personal attacks on me, the epitome of ad hominem, stuff like this:

sounds like a disgruntled former DEP employee? (link)

NJ Spotlight has blocked my comments:

Error posting comment: user has been blocked

I learned that today after attempting to comment on their story:

I am the most consistent, prolific, and critical commenter on NJ Spotlight stories, and have been so since NJ Spotlight was created. My comments, while often harsh, are always fact based and often are based on my expertise or DEP regulatory experiences.

Over the years, more than once, Tom Johnson and Spotlight editors have sent emails and made phone calls to threaten a ban, alleging that my comments were either ad hominem personal attacks or otherwise inappropriate.

The ban is almost certainly in retaliation for my Monday highly critical Wolfenotes post on the Spotlight sponsored Delaware River.

In that post, I called out NJ Spotlight for questionable or unethical journalistic practices and potential funder bias, suggesting that major funders like the Dodge and Wm. Penn Foundations are buying coverage in an effort to shape and control the policy agenda:

The event was sponsored by, among others, the Wm. Penn Foundation.

Wm. Penn also funds NJ Spotlight, at least one of the groups on the event panel, and on top of all that, Wm. Penn funds a major $35 million grant program in the Delaware River watershed.

The world’s largest toxic corporate polluter, Dupont, also funds a Delaware Estuary program – with the Orwellian title “Clear Into The Future” – and a group mentioned in the NJ Spotlight coverage.  Of course, Dupont does not fund science and regulation to hold them accountable for the toxic pollution of the river and bay.

NJ DEP also funds one of the groups on the NJ Spotlight panel (in Barnegat Bay, on stormwater et al, and in Delaware Bay).

There are so many conflicts of interest and ethical challenges it is hard to know where to begin.

Of course, none of all that was mentioned in the event coverage by Spotlight.

I believe Spotlight readers should be aware of the facts I disclosed in that post and my opinion of the implications of those facts. I stand by that criticism.

It is a sad day when the State’s only journalistic outlet that focuses on public policy bans a well informed expert critic.

That kind of move is redolent of tactics from Orwell’s classic “1984” and the phrase “down the memory hole”:

As Orwell wrote: 

In the walls of the cubicle there were three orifices. To the right of the speakwrite, a small pneumatic tube for written messages, to the left, a larger one for newspapers; and in the side wall, within easy reach of Winston’s arm, a large oblong slit protected by a wire grating. This last was for the disposal of waste paper. Similar slits existed in thousands or tens of thousands throughout the building, not only in every room but at short intervals in every corridor. For some reason they were nicknamed memory holes. When one knew that any document was due for destruction, or even when one saw a scrap of waste paper lying about, it was an automatic action to lift the flap of the nearest memory hole and drop it in, whereupon it would be whirled away on a current of warm air to the enormous furnaces which were hidden somewhere in the recesses of the building.

In the view of NJ Spotlight editors, my opinions are just down the memory hole.

BTW, the comments I tried to post on today’s Spotlight story are as follows:

In addition to the attempt to avoid restrictions on the use of funds that would be imposed under the proposed constitutional amendment, the proposed DEP settlements also share the same flaws as the controversial Exxon pennies on the $8 billion+ giveaway.

The DEP still is limited by the same flaws that the Attorney General found created “litigation risk”.

The DEP’s “litigation risk” was discussed at length in Judge Hogan’s opinion. Basically, DEP failed to adopt regulations regarding NRD valuation and enforcement.

And recall that the media failed to report that Judge Hogan was former Chief Legal Counselor to DEP Commissioner Bob Shinn during the “open for business” Whitman administration.  In that role, Hogan was aggressively anti-regulatory and anti-enforcement.

Hogan’s background as an anti-regulatory, pro-business DEP ideologue is extremely relevant to his role in the Exxon case.

Shine a Spotlight on that!

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Life On The Delaware – Summertime and the Livin’ Is Easy

September 18th, 2017 No comments


Summertime, and the livin’ is easy
Fish are jumpin’ and the cotton is high
Oh, your daddy’s rich and your ma is good-lookin’
So hush, little baby, don’t you cry

One of these mornings you’re gonna rise up singing
And you’ll spread your wings and you’ll take to the sky
But till that morning, there ain’t nothin’ can harm you
With daddy and mammy standin’ by ~~~ listen to the Ella Fitzgerald version

The Foundation funding is driving the agenda and the agenda is corporate

[Update below]

On Friday, NJ Spotlight and sister Pennsylvania based media State Impact held a conference on threats to the Delaware River watershed – “Protecting Today and Tomorrow” – see the NJ Spotlight story today for an overview.

The event was sponsored by, among others, the Wm. Penn Foundation.

Wm. Penn also funds NJ Spotlight, at least one of the groups on the event panel, and on top of all that, Wm. Penn funds a major $35 million grant program in the Delaware River watershed.

The world’s largest toxic corporate polluter, Dupont, also funds a Delaware Estuary program – with the Orwellian title “Clear Into The Future” – and a group mentioned in the NJ Spotlight coverage.  Of course, Dupont does not fund science and regulation to hold them accountable for the toxic pollution of the river and bay.

NJ DEP also funds one of the groups on the NJ Spotlight panel.

There are so many conflicts of interest and ethical challenges it is hard to know where to begin.

Of course, none of all that was mentioned in the event coverage by Spotlight.

The reason I even mention this stuff, aside from the ethical issues involved, is because the Wm. Penn, Dupont, and NJ DEP funding comes with huge strings attached – implied or overt – that divert so called watershed protection groups away from controversial and costly science based regional planning and regulatory tools and instead fund work on alternative voluntary and incentive based projects.

The funding is driving the agenda and the agenda is corporate.

I wrote about all that in this 2014 post:

Since then, the problems I wrote about have all gotten much worse. The only good thing is the anti-fracking campaigns, but even that good advocacy work is mis-focused  on FERC instead of State regulatory powers under the Clean Water Act, while it has consumed virtually all resources to wage other battles.

Now Wm. Penn and Dodge Foundations have bought media coverage and sponsors policy conferences that frame the issues and set the advocacy and policy agenda.

Those “protecting” the river have virtually abanded the regulatory tools under the Clean Water Act that have protected the river and need strengthening, including antidegradation policy, NPDES permits and the TMDL program.

Instead those Foundation funded groups focus on feel good measures and politically safe voluntary measures and incentives. Look no  further than the Wm. Penn Delaware initiative for a crystal clear example of that corporate market based model as a diversion from traditional regulatory enforcement.

Worse some take funds fron major toxic polluters like DuPont and state regulatory agencies that they are supposed to be holding accountable. See Dupont’s “Clear Into The Future” program for a very cynical manipulation of the science and policy agendas – including co-opting conservation groups.

A detailed regulatory strategy to protect the watershed was funded by and submitted to Penn Foundation. But they abandoned it. See the above 2014 post for a copy of that strategy and details on all that.

Instead of funding the implementation of the strategy Penn provide grant funding to develop, they ran away from that controversial regulatory agenda and instead funded their $35 million voluntary incentive feel good program.

I submitted a proposal to develop a regional planning scheme for the Bayshore to Dodge Foundation but they declined to fund it. Chris Dagett at Dodge told me to work with ineffective local groups on local voluntary programs and incentives, not a Pinelands modeled regional planning and regulatory scheme to really protect the Delaware Bayshore.

I somehow doubt that any of the esteemed – and well fed – panelists mentioned any of all that.

And for that fealty, the livin’ will remain easy

With daddy and mammy standin’ by 

[Update: NJ Spotlight reports that the Delaware River is “healthy”.

That is false.

Any river that is poisoned with chemicals produce “dual-sexed fish” is not healthy.

But, of course, NJ pharmaceutical and chemical corporations don’t want the media, the public and regulators to focus on the endocrine disputing chemicals they manufacture. And NJ Spotlight goes right along with that suppression.

Furthermore, under the federal Clean Water Act, State’s are required to assess the health of surface waters. NJ DEP has determineded that the Delaware fails to meet water quality standards and is legally impaired. NJ DEP (and others) have issued fish consumption advisories due to toxic mercury and PCB’s. There is a TMDL underway in Delaware Bay ad the lower Delaware.

These inconvenient facts are also ignored by Spotlight ad the “river protectors”. ~~~ end update]

[End note: After I wrote this, I just went to read Chris Hedges’ weekly column at Truthdig. Of course, Hedges says what I’m driving at much better: (read the complete column)

These dissidents, if we had a functioning public broadcasting system or a commercial press free of corporate control, would be included in the mainstream discourse. They are not bought and paid for. They have integrity, courage and often brilliance. They are honest. For these reasons, in the eyes of the corporate state, they are very dangerous.

The first and deadliest salvo in the war on dissent came in 1971 when Lewis Powell, a corporate attorney and later a Supreme Court justice, wrote and circulated a memo among business leaders called “Attack on American Free Enterprise System.” It became the blueprint for the corporate coup d’état. Corporations, as Powell recommended in the document, poured hundreds of millions of dollars into the assault, financing pro-business political candidates, mounting campaigns against the liberal wing of the Democratic Party and the press and creating institutions such as the Business Roundtable, The Heritage Foundation, the Manhattan Institute, the Cato Institute, Citizens for a Sound Economy, the Federalist Society and Accuracy in Academia. The memo argued that corporations had to fund sustained campaigns to marginalize or silence those who in “the college campus, the pulpit, the media, and the intellectual and literary journals” were hostile to corporate interests.

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New DRBC Rules Would Rescind Current Moratorium and Open The Door To Fracking In The Delaware Basin

September 13th, 2017 No comments

DRBC likely to allow fracking in Pennsylvania and ban it in New York

[Update below]

I am on the road and don’t have time to adequately document this post, but felt compelled to post a quick note because the environmental community and the media got the story totally wrong and exactly backwards.

The press is falsely reporting that DRBC acted to ban fracking and the environmentalists agree that the DRBC will ban fracking and merely allow disposal of wastewater in the basin from fracking outside the basin.

A NJ Spotlight headline screamed that “DRBC Acts To Ban Fracking In the Delaware Basin”.

That headline is factually false on two grounds.

First, DRBC did NOT “act”.

Here’s DRBC’s own draft Resolution – note that DRBC merely directed staff to initiate rulemaking and postponed formal “action” until November 30, 2017:

Now therefore, BE IT RESOLVED by the Delaware River Basin Commission that:

1. No later than November 30, 2017, the Executive Director shall prepare and publish for public comment a revised set of draft regulations to address certain natural gas development activities within the Delaware River Basin. (emphasis mine)

2. The draft regulations directed by this Resolution shall include and seek comment on:

a. prohibitions related to the production of natural gas utilizing horizontal drilling and hydraulic fracturing within the Basin;

b. provisions for ensuring the safe and protective storage, treatment, disposal and/or discharge of wastewater within the Basin associated with horizontal drilling and hydraulic fracturing for the production of natural gas where permitted;

c. regulation of the inter-basin transfer of water and wastewater for purposes of natural gas development where permitted.

3. The Executive Director, in consultation with the Commissioners, may also include in the draft regulations other proposed revisions or additions to DRBC rules and regulations.

Second, and more importantly, the DRBC did not direct staff to “ban fracking”. Exactly the opposite is true.

Under current DRBC rules and policy, a basin-wide moratorium is in effect until the DRBC adopts new regulations.

Here is the DRBC Resolution that explains this:

WHEREAS, by Resolution and Order dated December 8, 2010, the Commission postponed the decision on its authority to review natural gas exploratory well activities in shale formations until either the promulgation of final natural gas regulations or the submission of an application;

By deciding to propose and promulgate new rules, the current moratorium is over. By lifting the moratorium, the DRBC is promoting fracking.

The DRBC Resolution specifically directed staff to proposed new regulations related to “natural gas development activities within the Delaware River Basin”.

Nowhere does the Resolution state that the prohibition would be basin-wide. DRBC staff may recommend location based partial prohibitions, like no fracking within 300 feet of a stream or drinking water source.

In fact, the Resolution, by contrasting New York State’s ban with Pennsylvania’s pro-fracking policy, the DRBC Resolution strongly signals that DRBC will allow fracking to occur in Pennsylvania and prohibit fracking in the New York portion of the basin.

Allowing fracking in Pennsylvania and following NY DEC and banning it in New York State is consistent with DRBC’s longstanding and cowardly policy to defer big decisions – especially land use and economic development decisions  – to the compact States.

Paragraph 2.b. is vague and opens the door to fracking “where permitted”. If the DRBC intended this to apply to the entire basin they would have said so. The fact that DRBC noted that fracking was “permitted” is significant. Fracking is permitted in Pennsylvania.

Similarly, by directing staff to allow inter-basin transfers of water – not just wastewater – the DRBC is opening the door to fracking in the basin (because fracking needs lots of water) and not merely just authorizing wastewater management in the basin from fracking outside the basin:

regulation of the inter-basin transfer of water and wastewater for purposes of natural gas development where permitted.

Finally, paragraph #3 clearly opens the door to new rules that allow fracking in the basin:

may also include in the draft regulations other proposed revisions or additions to DRBC rules and regulations.

I haven’t spoken to environmentalists, but assume that they are spinning the Resolution to encourage DRBC to ban fracking basin-wide. Or to cut a deal to ban wastewater basin-wide in exchange for allowing fracking in the Pennsylvania portion of the basin.

But they are playing a very foolish game. False hope is worse that no hope.

Either that, or they are incompetent and simply misread the Resolution.

[Update: 9/14/17NJ Spotlight coverage of yesterday’s DRBC meeting and adoption of the Resolution continues to get the story wrong.

In a completely dishonest, manipulative, and irresponsible move, DRBC Executive Director Tambini perpetuates the misinformation to the public by dodging the policy question entirely:

“People are trying to figure out what the rules are going to say,’’ Tambini said at the packed meeting at Bucks County Community College. “They are not ready yet.’’

The draft rules may not be ready yet, but clearly the DRBC Commissioners and ED Tambini have a clear policy on authorizing fracking in the basin that they are hiding in ambiguous, vague language. Without a clear policy on fracking, staff would not be able to draft rules.

NJ Spotlight and environmentalists continue to misunderstand what the DRBC Resolution actually says and are spinning their own interpretation. Both are getting 2 big issues completely wrong.

The Resolution does not direct staff to draft rules that ban fracking in the entire basin (as is current policy under the moratorium) and therefore the new rules will NOT ban fracking in the entire basin. PERIOD.

The Resolution explicitly directs staff to propose rules that will authorize fracking within the basin.

New rules will lift the current moratorium, which applies in the entire basin.

For a link to the DRBC Resolution and an analysis of what it actually says, see the above:

I posted the above as a comment on NJ Spotlight’s story today. All of my prior comments have been deleted, so I suspect that they will soon delete this one too. ~~~ end update]

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