DEP Regulations Promote Industry And Screw The Public
When most people think about environmental regulations, they assume that the regulations are designed to protect the public and restrict the operations of polluting industries to protect the environment.
But, some times the opposite is true: the regulations are proposed to protect the industry.
There are many ways that regulations can protect industry and and screw the public: e.g. 1) limit competition; 2) establish barriers to market entry; 3) provide a monopoly; 4) create investment certainty and reduce investment risks; 5) provide subsidies; 6) insulate industry from enforcement of laws; 7) reduce industry liability; 8) preempt local regulation; 9) increases costs, harass competitors and drive them out of the market; and 10) even to create a market. [wonks can read the works of Gabriel Kolko].
Two years ago, the Murphy DEP pursued the latter objectives and adopted new regulations to protect their friends in the gas industry and screw the public and the environment.
Those regulations explain why the DEP just issued permits to the massive Gibbstown gas facility – literally an explosive fossil bomb that poses huge risks to the community while protecting corporate profits.
So we are reposting a May 6, 2023 post about the Murphy DEP “cavern” gas storage regulations.
Those regulations paved the way for the Gibbstown permit:
Murphy DEP Adopts New Rules To Allow Expansion Of Storage Of Flammable And Explosive Gases In Underground “Caverns”
Gas Storage Caverns Pose Huge Risks To NJ Communities
Expansion Of Fossil Infrastructure Contradicts NJ Global Warming Response Act Goals
DEP Rules Make A Mockery Of Gov. Murphy’s Climate Commitments & Exec. Orders
DEP Commissioner Recused From Decision Because He Represented Gas Industry
On Monday May 1, 2023, the Murphy DEP quietly adopted new regulations that would allow for the expansion of storage of highly flammable and explosive gases in underground “caverns”.
In the nation’s most densely populated State, what could go wrong?
I suggest people and the press read the DEP rule adoption document to get a flavor for the harsh public criticism DEP received and see for yourself the DEP’s lame responses to those criticisms.
The poster child for the catastrophic risks these gas storage “caverns” pose to nearby communities and the climate emergency was the 2015 blowout at the Aliso Canyon cavern in California.
There was no self congratulatory press release touting the “historic” and “first ever” new DEP rules.
In an unusual move, the new rules were legally adopted by DEP Deputy Commissioner Moriarty, not DEP Commissioner LaTourette who is legally empowered to sign off on regulations.
The DEP press office surely did not highlight the fact that DEP Commissioner LaTourette was forced to recuse from the regulatory process because he previously served as private lawyer for one of the gas storage cavern corporations, Delaware River Partners LLC.
LaTourette’s former clients in the gas industry praised the DEP rules: (rule adoption, page 13)
2. COMMENT: The rules are the culmination of a considerable and concerted effort by Department staff and those in the regulated community to craft a protective and workable regulatory framework. There is a decades-long history of safe operation of underground storage caverns in New Jersey at Repauno and at a third-party facility in Linden. Given current market trends and international energy needs, underground storage caverns present a unique opportunity to serve as a driver of local and regional economic growth. The commenter asserts that it is uniquely situated to comment on the rules given its experience with managing and operating an underground storage cavern and its participation in the stakeholder process used to develop the rules over the past several years. (26) 26. David Miller, Giordano, Halleran & Cielsa, P.C., on behalf of Delaware River Partners LLC
That’s really all you need to know. The gas industry loves it. The DEP’s “protective regulatory framework” protects their profits and assures continued operation and allows expansion. Period.
The rules allow expansion of the current fossil fuel infrastructure and promote the growth of natural gas supply and therefore will result in continued and huge new greenhouse gas emissions, including methane which is 80X more potent climate warming than carbon dioxide.
DEP did not quantify or even consider the greenhouse gas emissions and climate impacts in the May 16, 2022 rule proposal, which got virtually no media coverage when it mattered (i.e. before the public hearing and the close of the public comment period).
DEP did not include requirements for the gas industry to quantify greenhouse gas emissions from the “caverns” and the lifecycle green house gas emissions from the gas storage at the facility.
The DEP did not include allowable greenhouse gas emission standards for gas storage “caverns”.
Instead, DEP created a fake appearance of consideration of climate issues via a misleading “climate change impact assessment” (see: N.J.A.C. 7:1F-2.4).
That “climate change impact assessment” is fatally flawed and a meaningless fraud.
It is limited to mitigation of climate impacts and therefore allows continued operation and expansion of gas storage (i.e. the rules do not provide a scientific basis for or regulatory authority for DEP to prohibit or limit GHG emissions).
It merely requires the consideration of the following factors, which do NOT include mandatory quantification of greenhouse gas emissions or the warming potential of those emissions or the relationship to the GHG emission reduction goals of the NJ Global Warming Response Act: (see page 104-106):
- flood hazard location risks
- 100 year storm event (DEP’s own recently proposed flood hazard regulationsadmit that this 100 year storm standard is obsolete and does not reflect the best available current science)
- sea level rise
- extreme weather
- health impacts related to flooding, not from emissions, or explosions, or fires.
[Update 5/8/23 – On the embarrassing glaring conflicting storm event standards and climate fail, I sent this email to DEP Commissioner LaTourette:
Dear Commissioner Latourette:
Are you aware of the fact that the Department’s proposed Flood Hazard Area regulation storm event standard (and flood elevations) conflict with the the Department’s adopted 100 year storm standard in the Underground Storage Caverns rule?
In addition to this glaring conflict, please explain how the Underground Storage Caverns rule considered greenhouse gas emissions, limited those emissions, and is consistent with the emission reduction limits and the legislative intent of the NJ Global Warming Response Act.
The rules apply to cavern systems that are used for the underground storage of any natural or artificial gas, or any petroleum product or derivative of any petroleum product. Many of these substances are extremely toxic or flammable, which could impact the surrounding public, if involved in an incident. A release of a toxic substance could form a vapor cloud that may cause severe health effects, if inhaled. An incident with a flammable substance could result in a fire or explosion, which could impact the public by radiant heat or an overpressure wave.
But the DEP did not propose any enforceable standard with respect to “unacceptable risk” that would provide a science based regulatory standard necessary to deny a new permit, permit renewal for an existing facility, or a permit modification for expansion of the storage capacity of an existing cavern.
The rules also include privatization of the permitting process, by requiring that the gas industry hire a “third party” – and – remarkably – allowing the gas industry to determine if that third party is competent and independent:
7:1F-2.5 Third-party evaluation
(a) The owner and operator of an underground storage cavern system shall engage a third party to independently review the feasibility study as required at N.J.A.C. 7:1F-2.1, the design and construction submittals as required at N.J.A.C. 7:1F-2.2, and the process hazard analysis as required at N.J.A.C. 7:1F-2.3.
(b) The owner and operator shall determine and document that the third party meets the following competency and independence requirements:
These new rules got very limited and meaningless press coverage, so there is little public awareness, e.g. see NJ Spotlight story, which came almost 3 months after the rules were proposed and safely AFTER the June 9 Public hearing and the July 15 close of the public comment period (so the public could no nothing with the information):
But to some advocates, the proposed new regulations, if passed as currently written, would be deeply antithetical to the Murphy administration’s efforts to reduce greenhouse-gas emissions and to become a national leader in the environmental justice movement. Instead, they say the rules change offers an invitation for the oil and gas industry both to expand in New Jersey and to further exacerbate pollution and the burdens of climate change in some of the state’s most vulnerable communities.
In contrast, I post my initial analysis immediately – the day the rules were proposed – explicitly to educate the public and empower their participation in and opposition to the proposal:
Today, the Murphy DEP proposed new regulations that would govern DEP permitting of new and existing facilities for the underground storage of natural gas and other petroleum products.
I suspect that DEP will spin these rules as updating or modernizing outdated permits or regulations based on an ancient 1951 law. DEP will use the LNG restriction to obfuscate and divert.
But make no mistake, just the opposite is the case: in fact, the proposed rules effectively promote expansion of fossil infrastructure,protect existing permits, and continue a dangerous practice that should be banned.
Underground storage caverns are part of the fossil infrastructure network. Although DEP fails to even mention this or analyze the need for this infrastructure capacity, California regulators analyze the need for storage capacity and explain the role of underground storage:
This is all just insane.
More to follow – so I’ll close now with a line from one of my favorite movies, Cool Hand Luke:
What we have here is a failure to communicate.
