NJ Dem Leaders Back Dupont Frack

NJ is Open For Business – We are competing to import toxic waste!

Last week, the Assembly and Senate environment committees heard lame duck legislation purporting to ban the treatment and disposal of fracking wastewater at NJ facilities (see: A4231[1R] and S3049).

The moves were reported favorably and received praise by environmental lobbyists.

But the truth is, leading NJ Democrats quietly have derailed efforts to prohibit the treatment of toxic fracking wastewater at NJ facilities and disposal of treated effluent in NJ rivers, most of which are used for public water supply.

Shockingly, the NJ Business and Industry Association wants to turn the clock back 50 years, and return NJ to the waste importation capital of the Eastern seaboard – and more absurdly, do so on the basis of Republican political talking points: “job creation” (conveniently just presented to the Republican Governors Assc.).

Talk about a race to the bottom! NJ is Open For Business – we are competing to import toxic waste from Pennsylvania, New York, Ohio, West Virginia…!

Yes, we know you just read the opposite in the press, who report that Democrats are seeking severe restrictions (see: Committee says NJ won’t treat wastewater from hydraulic fracking.

But you gotta read more than the headlines – and note this:

The legislation, narrowly approved by the Assembly Environment and Solid Waste Committee, is unlikely to win final legislative approval in the lame duck session

What you didn’t read in the press is that the bill is DOA in the Senate (making it easy to move out of an Assembly Committee).

What you didn’t read in the press is that the bill is opposed by Assembly Democratic leaders and thus would never be posted for a full Assembly floor vote (again making it easy to release from Committee).

Last week’s Assembly and Senate Committee hearings were just the latest in the Democrats’ political Kabuki and environmentalists’ disarray on the fracking issue. [Note: activists are engaged and organized, but Trenton political strategy is in disarray.]

Instead of banning the treatment/disposal of tracking wastewater, Democrats want to import toxic fracking wastewater from nearby states so that Dupont can treat it at their Delaware River Chambersworks plant in Salem County and discharge it to the Delaware River (and in the process, make a boatload of money).

(Oh BTW, did the press tell you that the Dupont Chambersworks plant just happens to be located in Waldo’s District?).

These are the same craven Democrats who passed a symbolic bill to BAN fracking in NJ in order to to protect NJ’s precious water supplies(see S2576). How can Dems credibly claim to want to BAN fracking in NJ, and yet promote the importation of  fracking wastewater?

The legislation was Conditionally Vetoed by Governor Christie and Dems are unlikely to mount an over-ride effort. But it really doesn’t matter because the law is purely symbolic and would have no impact in NJ, so I’ve advised the ENGO’s not to waste bullets seeking an over-ride vote, and in the process, further praise Democrats for Kabuki.

These are the same cynical Democrats who basked in praise heaped on them by environmentalists, despite the fact that the ban bill was purely symbolic and would have NO IMPACT on NJ because there are no economically viable gas deposits to frack in NJ.

These are the same cowardly Democrats who abandoned legislation that would have established a State policy in opposition to fracking that would bind the discretion of the NJ representative on the Delaware River Basin Commission (see A3314 andS2575.  I provide the bill statement here, because these bills won’t be reintroduced into the next session and otherwise would go down the memory hole):

This bill prohibits any New Jersey member of the Delaware River Basin Commission from supporting or voting to support the issuance, by the commission or any other entity, of any permit or other kind of approval to withdraw water for the purposes of hydraulic fracturing for natural gas exploration or production.

The bill defines “hydraulic fracturing” as the drilling technique of expanding existing fractures or creating new fractures in rock by injecting water and chemicals, sand, or other substances under pressure into or underneath the surface of the rock for the purpose of well drilling or natural gas exploration.  It includes fracking, hydrofracking, hydrofracturing, and other colloquial terms for this drilling technique.

Recently, drilling connected with natural gas exploration along the Marcellus Shale formation in Pennsylvania caused concern and a moratorium on such drilling in Pennsylvania and New York.  The Marcellus Shale formation reaches beneath the southern tier of New York State, into Pennsylvania, Ohio, and West Virginia, and touches the edge of northwestern New Jersey.  It is one of the largest untapped fossil fuel reserves in the Western Hemisphere and there have been estimates for the area to yield as much as 20 times the current nationwide output of natural gas, but the gas is not easy to extract.  On June 5, 2010, hydraulic fracturing in Clearfield County, Pennsylvania caused an explosion and the release of many gallons of contaminated water and uncontrolled natural gas from the drill site.

The excuse?

The cover story the Dems used to abandon that DRBC legislation was that the bill would unconstitutionally  encroach upon Executive Power – but they never produced a legal opinion from OLS to support that political decision.

These are the same Democrats who last year quietly killed amendments to the symbolic fracking ban bill that would have prohibited treatment disposal of tracking wastewater in NJ (what at the time I called a “u-turn in favor of aspirational bills that will not work”).

Specifically, almost a year ago, on December 9, 2010, I testified and provided written amendments regarding restrictions on treating fracking wastewater.

Those amendments were designed to avoid any interstate commerce Clause restrictions that would result from a flat out ban on importation. (I worked in DEP’s solid waste planning program in the 1980’s, the period after NJ moved to block garbage imports from New York and Philadelphia, a controversy that went to the US Supreme Court.)

The amendments I sought were supported at the time by the Assembly bill sponsor and the Committee Chairman McKeon, who directed OLS staff to work with me on drafting them. I conveyed the amendments to OLS staff and wrote about that testimony and hearing:

I suggested amendments to strengthen the bill, as follows:

• Amend Section 2 a at line 33 to include “or any other DRBC approval”. The objective here is to expand the restriction to DRBC activities that are broader than individual project specific water withdrawals;
• In light of yesterday’s DRBC releases of draft regulations, the bill also should prohibit voting to approve those regulations;
• New Section 3 -“The Department of Environmental Protection shall not issue any approval pursuant to the Water Quality Planning Act (cite) for amendments to areawide wastewater or water quality management plans related to wastewater generated by fracking”.
• New Section 4 -“The Department of Environmental Protection shall not issue any approval pursuant to the Water Pollution Control Act (cite) or delegated federal Clean Water Act  (cite) NJPDES/NPDES permits to authorize the treatment of wastewater generated by fracking or the discharge  of pollutants to NJ waters from treated fracking wastewater.” 
• New Section 5 –  impose a temporary moratorium pending EPA study and  adoption of national regulations under the Clean Water Act and Safe Drinking Water Act – “No state agency or authority shall act to issue any state approval, permit, or financial support for any activity related to fracking unless and until the US EPA finalizes the national Hydraulic Hyrdofracturing Study and promulgates final regulations pursuant to the Clean Water Act and the Safe Driking Water Act that govern fracking.”
• In addition to DRBC compact powers, there also are protections for downriver states under inter-state provisions of the Clean Water Act. I think they were used informally to coordinate water quality related activities with NY regarding the Ramapo and Walkill rivers, but this requires additional research.

Getting back to last week’s action.

On Thursday, we were told that south jersey Democratic leader Lou Greenwald openly told environmental lobbyists that he wants to see fracking wastewater treated at the Dupont facility.

This time, the Constitutional cover story to avoid accountability for the pro-facking faction in Dem leadership, created by Senate Environment Committee Chair Bob Smith – who just happens to report to Waldo – is the so called Commerce Clause, which prohibits certain restrictions on interstate commerce (recall that last time it was separation of powers. Those constitutional limits just keep on comin’!).

We are not now fooled by the Kabuki and we never were.

And Assemblyman Greenwald now provides confirmation about why proposed amendments to ban the processing and disposal of toxic fracking wastewater at NJ facilities in NJ were not incorporated into the “fracking ban” legislation passed earlier this year and conditionally vetoed by Governor Christie.

We also must seriously question either the competence , judgement, or the courage of environmental leaders, who either got duped or caved.

Why would they praise Dems for doing nothing in passing the fracking ban bill?

Why didn’t they insist on including the substantive treatment and disposal ban amendments in the symbolic fracking ban bill?

Why are they now focused on supporting Democrats to over-ride Christie’s conditional veto of a symbolic piece of legislation, instead of blasting Dems for the dirty Dupont deal?

More to follow.