WolfeNotes.com

Barnegat Bay, NJ

Stealing a classic line from “Cool Hand Luke” (one of my favorite movies): what we’ve got here is failure to communicate.

The situation is created by slimy politics by Governor elect Christie and enabled by cowardice and/or duplicity by the NJ Environmental Federation (NJEF).

The policy issue at hand is whether DEP will require cooling towers to be installed at the Oyster Creek nuclear power plant to protect the aquatic life of Barnegat Bay.

Oyster Creek is the nation’s oldest nuke plant (see “Zombie Nuke Plants“) and is operating on a 15 year old expired Clean Water Act permit issued by the pro-business Whitman Administration (BTW, after leaving the NJ Gov.’s Office and US EPA (see testimony at page 120), Whitman took the revolving door and became a nuke industry lobbyist – see: “The Nuclear Industry’s New Shill“).

The Oyster Creek plant slaughters billions of fish, shellfish, and tiny aquatic organisms required to support the ecosystem and fisheries of the bay.

But I don’t want to get into the weeds of the substance of the issue – there is plenty of good information accessible on Save Barnegat Bay, ALS, Clean Ocean Action, and DEP websites, and Kirk Moore of the APP has written excellent recent stories.

I want to explore the politics that will determine the outcome. Understanding the chronology and permit procedure is key to seeing the politics here.

In 2005, DEP issued a draft Clean Water Act (CWA) permit to Oyster Creek that found that cooling towers were the “best available technology (BAT) for minimizing adverse environmental impact“, as required under CWA Section 316(b)/BAT.

But that 2005 draft permit was never issued due to litigation challenging the CWA Section 316(b)/BAT framework. This litigation resulted in an April 2009 US Supreme Court decision known as Entergy Corporation v. EPA. This decision was a huge win for the nuclear energy industry and a loss for environmentalists because it allowed cost-benefit analysis to be considered in BAT decisions. The Supreme Court decision changed the factors DEP could consider and forced reconsideration of the 2005 draft permit. On January 7, 2010, just 8 months after the Entergy decision, DEP announced a new draft permit in which they basically reaffirmed the 2005 cooling tower BAT decision, using “best professional judgment” required under the Entergy Supreme Court decision.

Before the election – and after the longstanding legal debate that led to the Entergy decision – here’s what Christie promised on the cooling tower issue (from Christie website):

Restoring the Delaware and Barnegat Bay – I will make it a priority to identify and implement strategies for better cooling systems at Oyster Creek and Salem. We cannot ignore this issue. I will not. There has to be a better way to cool Oyster Creek and Salem without putting New Jersey taxpayers on the hook, and we will do it.

Christie is a lawyer, so one must assume he was aware of the Supreme Court’s Entergy decision. Parsing his position reveals some wiggle room to reject the cooling tower option (i.e. based on taxpayer impacts). But the Christie statement was interpreted by the press and the NJ Environmental Federation as a commitment to support cooling towers at Oyster Creek. If this interpretation over-stated Christie’s support for cooling towers, Christie did nothing to dispel this NJEF/media interpretation or clarify his position. Thus, it was reasonable to assume that he was firm in supporting the cooling tower issue.

But now that DEP has had sufficient time to apply the April 2009 Supreme Court decision and reissue the cooling tower permit, Christie is crying foul.

When the story broke on January 7, 2010, the Christie Administration initially refused to comment – but an energy industry lobbyist didn’t hesitate to talk about his understanding of the back room deal reached with the Christie Administration. The energy industry’s “understanding” is directly at odds with the “assurances” that Dave Pringle of NJEF has repeatedly been quoted in the press that he has with the Christie Administration. This contradiction alone is a major political problem. But let’s get to what was said when the story broke on January 7:

Cooling towers required by DEP

By KIRK MOORE – TOMS RIVER BUREAU – January 7, 2010

In a surprise announcement, the state Department of Environmental Protection said it is moving to require cooling towers at the Oyster Creek nuclear power plant to protect the Barnegat Bay ecosytem. […]

Christie’s transition team did not respond to a request for comment.

“My impression is there is at least an understanding (among Christie and his advisers) that there’s a cost-benefit (analysis) to be undertaken so this doesn’t lead to unintended consequences” like a plant closing, said Rick Mroz, an adviser to the New Jersey Energy Coalition, which is supporting Exelon. (see APP: “Cooling towers required by DEP“

But after the Christie Team had time to consult with their energy industry friends and form a public position, Christie characteristically ignored the substance of the issue and went into political attack mode.

According to the January 8, 2010 Asbury Park Press: (Christie Faults Corzine on Oyster Creek Decision

Gov.-elect Chris Christie is disappointed that Gov. Jon S. Corzine “decided to play last-minute politics” with the environment and economy by proposing to require cooling towers at the Oyster Creek nuclear power plant after four years of inaction, Christie’s spokeswoman said today.

“We’ve had four years here to consider this draft (state) permit and the administration hasn’t taken any action on it until the week before the next governor is sworn in,” said Maria Comella, his spokeswoman.

Surprisingly, the Christie media team doesn’t seem to be aware of the April 2009 Supreme Court decision. That decision provided DEP just 8+ months – not 4 years – to reconsider the 2005 draft permit and issue the revised draft permit.

And surely – as a lawyer – Christie had to know that the Supreme Court Entergy decision turned on whether and how controversial cost benefit analysis could be considered in Section 316(b)/BAT decisions. He simply is dodging this critical issue to appear pro-environment and avoid the obvious criticism of elevating Exelon’s profits over the health of Barnegat Bay.

So, just who is playing the politics here?

The Press of Atlantic City reported the same harsh “playing politics” quote, but went further and reported a more troubling statement by the Christie Administration. This statement not only criticized (mistakenly) the timing of the permit decision, but amounts to a complete collapse of any notion of a commitment to cooling towers (see: “Christie disappointed by timing of cooling-tower order for Oyster Creek”

Christie received the endorsement of the New Jersey Environmental Federation based in part on his interest in improving the cooling systems of the state’s nuclear power plants. …

Comella said Christie wanted ongoing discussions that included the state, Exelon, neighbors and other interested parties. Christie did not have a particular solution in mind, Comella said: “He’d like to see all issues put on the table.”

But it gets worse.

This is not the first indication of Christie’s reversal on the cooling tower issue – and NJEF’s cowardly failure to hold him accountable to his campaign commitments upon which they endorsed him and urged the public to vote for him.

But JUST DAYS AFTER the election, Christie was asked point blank by Kirk Moore (environmental writer for the Asbury Park Press) about his views on cooling towers at Oyster Creek, to which Christie replied: (see: Nov. 7 Courier Post :Christie: COAH “has to be gutted”.

“For Barnegat Bay, Christie said he will seek a solution for the issue of cooling water discharge from the Oyster Creek Nuclear Generating Station, though he stopped short of an outright commitment to requiring that cooling towers be built at the 40-year-old reactor”

On November 27, 2009, I wrote:

BEFORE the election, I received the below Vote Christie statement from the NJ Environmental Federation.

Note the deceptively parsed language alleging a contrast with Corzine on installation of cooling towers at Oyster Creek nuclear power plant to protect Barnegat Bay:

On Election Day Vote Environment-Vote Chris Christie

Contrary to Corzine, Christie has committed to the following as you already know:

• Increasing protections for our most vulnerable and important waterways through the state’s Category 1 program;
• Replenishing the state’s bankrupt open space program;
• Requiring the state’s nuclear plants to stop their destruction in and around Barnegat Bay and the Delaware River;
• Opposing the proposed coal plant in Linden; and
• Issuing an executive order to reduce killer diesel soot pollution.

Noting a lot of ambiguity and unsure of what NJEF meant by the weasel words “stop their destruction”, I went over to the Christie web page and curiously found a much clearer commitment with respect to the Oyster Creek cooling tower issue. Christie strongly implied a promise to install cooling towers, although the word smithing still gave him an out on the basis of “putting the taxpayers on the hook”. Regardless, one still must ask: why would a candidate a person expected to hedge on controversial issues express a clearer commitment than an environmental group?

Here’s what Christie promised on cooling towers:

Restoring the Delaware and Barnegat BayI will make it a priority to identify and implement strategies for better cooling systems at Oyster Creek and Salem. We cannot ignore this issue. I will not. There has to be a better way to cool Oyster Creek and Salem without putting“ New Jersey taxpayers on the hook, and we will do it.

So, I repeat what I wrote on November 8, shortly after the election:

Folks should know that installation of Oyster Creek cooling towers was considered a “promise” Christie made to secure NJEF endorsement. So, right out of the box, he’s already broken that key promise with absolutely no accountability by NJEF, who remain “optimistic” and look forward to working with him. Are you kidding me?

So, what is going on here?

1. Why has Christie been given a pass for running away from a major and one of his only environmental – “commitment” upon which the NJEF endorsement was based?

2. Why is no one calling out Christie and NJEF for this deception?

3. What is NJEF’s public position on the Corzine DEP cooling tower draft permit decision?

DEP’s decision now puts the ball firmly in their guy’s court.