Murphy DEP Rules Exclude Climate Change In Infrastructure Planning

Murphy DEP Dodge On The PennEast Pipeline Masks Major Regulatory Flaws

Widely Denounced Trump NEPA Rollback Actually Reflects Current NJ Regulatory Policy

Last week, the NY Times reported that the Trump administration was rolling back environmental impact statement review requirements for infrastructure regarding climate change impacts:

Trump Rule Would Exclude Climate Change in Infrastructure Planning

WASHINGTON — Federal agencies would no longer have to take climate change into account when they assess the environmental impacts of highways, pipelines and other major infrastructure projects, according to a Trump administration plan that would weaken the nation’s benchmark environmental law.

The proposed changes to the 50-year-old National Environmental Policy Act could sharply reduce obstacles to the Keystone XL oil pipeline and other fossil fuel projects that have been stymied when courts ruled that the Trump administration did not properly consider climate change when analyzing the environmental effects of the projects.

According to the NY Times, the Trump move was condemned by environmental activists and Democrats:

Environmental activists and legal experts said the proposed changes would weaken critical safeguards for air, water and wildlife. The move, if it survives the expected court challenges, also could eliminate a powerful tool that climate change activists have used to stop or slow Mr. Trump’s encouragement of coal and oil development as part of its “energy dominance” policy.

The Trump rollback – initiated by Executive Order – has been closely followed by media and when finalized got negative press across the county and was widely denounced as reckless and irresponsible (it is ironic that Phil Murphy is affiliated with CAP, who issued that criticism).

Yet, here in NJ, under Democratic Gov. Murphy – who claims to be a national leader in climate policy – current DEP regulations do not consider climate change.

Let me repeat: current NJ DEP regulations do not consider greenhouse gas emissions or climate change. Period.

While I have not been able to review the final Trump CEQ NEPA rule –  based on press reports, the Trump rollback appears to eliminate only the “cumulative impact” climate reviews under NEPA, not climate impacts entirely.

So, let’s examine the Trump NEPA rollback in light of current NJ law and DEP regulation.

First of all, NJ does not have a “State NEPA” that mandates environmental impact statements, like NY State’s SEQRA law. Secondly, NJ DEP regulations ignore climate change entirely.

That means that the current NJ DEP regulations are actually even weaker than the Trump NEPA rollback, because DEP does not consider climate change at all (direct, indirect, secondary, or cumulative impacts).

Which brings us to the recent PennEast pipeline DEP permit controversy.

Gov. Murphy has Tweeted and the NJ press dutifully has reported that NJ DEP denied the PennEast pipeline permits.

I have explained why that is false – DEP did not deny the PennEast pipeline permits.

(for those who like to verify claims based on evidence and get into the weeds, see the PennEast permit application documents, including DEP’s deficiency letter at the very end. I challenge anyone to find the climate impact review documents that regard greenhouse gas emissions from the proposed pipeline (and lifecycle upstream fracking and downstream combustion).

Clarity on this issue is absolutely essential, because, under current seriously flawed NJ DEP regulations, DEP would be unable to deny the PennEast pipeline.

This is true for 2 reasons:

1) current DEP permit regulations and permit review policies do not mandate review of climate impacts or establish any standards upon which to deny a permit based on greenhouse gas emissions or climate impacts; and

2) current DEP water quality certification regulations and permit review policies lack adequate science based technical criteria and standards upon which to deny a water quality certificate for a pipeline. For example, the recent DEP Raritan Bay Williams pipeline permits and WQC denial will be challenged and very likely overturned by the Courts. First of all, the NJ State permits that were denied are pre-empted by federal law and secondly, the denial of the WQC was based on DEP’s enforcement of a Guidance document. Williams’ lawyers are smart enough to know that – as I’ve written many times – in  Metromedia decision, the NJ Supreme Court ruled that Guidance documents are not enforceable.

NJ DEP has relied on the inability for PennEast to condemn State owned lands. That inability has made it impossible for PennEast to submit a complete permit application.

Rejection of that “incomplete” permit application allows DEP to dodge these fatal flaws in current DEP regulations – the same flaws for which the Trump administration was widely condemned. 

In addition to DEP dodging regulatory flaws, Gov. Murphy is able to dodge the fossil infrastructure moratorium issues and get false praise for having “killed” a pipeline.

The reason why a clear understanding of the basis for the PennEast permit status is important is because DEP has set no regulatory precedent, while avoiding any focus on loopholes in DEP regulations regarding water quality certification and lack of greenhouse gas emission standards. That means OTHER pipelines and fossil infrastructure can be approved under DEP’s flawed regulations.

If DEP were forced to make a regulatory decision on the merits, that would trigger the obvious need for a Gubernatorial moratorium and reforms to DEP regulations regarding pipeline reviews.

This moratorium and regulatory ratchet down would apply to ALL fossil infrastructure, not just PennEast.  

NJ Spotlight can’t seem to understand these issues and is listening to the selfish perspective of Tom Gilbert, who only cares about the PennEast pipeline.