Murphy DEP “Denial” Of Raritan Bay Pipeline Permits Exposes Huge Gaps In DEP Regulations On Climate And Water Quality Impacts

Posted on May 19, 2020 by Bill Wolfe

DEP Hides Behind New York DEC’s Denial

NJ Environmental Groups And Media Mistakenly Praise Murphy DEP

The public is getting the wrong facts and exactly the wrong favorable impression regarding the denial of various environmental permits for the Transcontinental Gas Co.’s proposed Northeast Supply Enhancement Project (NSE) last Friday, by both the NY State Department of Environmental Conservation (DEC) and NJ Department of Environmental Protect (DEP), see:

In contradiction of misleading media reports and misguided praise by environmental groups, the exact opposite is true: NJ DEP “denial” actually was a very bad decision, it set bad regulatory precedent, and it exposed longstanding huge flaws in DEP’s permit regulations.

The real story is critical, because unless those flawed DEP regulations are significantly strengthened, several pending proposed new fossil infrastructure projects will be approved by DEP.

Unless the real story is told, then current efforts allegedly intended to strengthen DEP regulations regarding climate change will fail.

The best way to explain what is a fairly complex set of science and regulatory issues is to compare the NY State DEC denial with the NJ DEP “denial”.

Here is the NYDEC denial.

Here is the NJDEP “denial”.

Under federal law, most State regulatory powers over pipelines are federally pre-empted.

However, State’s retain regulatory power under the Clean Water Act to issue or deny a “water quality certification”.

The energy industry, the Trump administration, the Federal Energy Regulatory Commission (FERC), and Republicans in Congress aggressively have sought to strip those powers from States via an across the board attack, including litigation, Executive Orders, FERC Orders, revised EPA Guidance, and proposed new federal legislation.

The law and regulatory oversight of greenhouse gas emissions and climate impacts of fossil energy infrastructure is far less settled, but equally controversial. While the Trump administration has rolled back limited federal regulations, some states, like New York and California, have passed state laws and enacted regulations that address GHG emissions and climate impacts.

So, with that context, the two most critical issues are how and why the DEC and DEP pipeline permits were denied:

1) if and how greenhouse gas emissions and climate impacts were considered; and

2) if and how the Clean Water Act Section 401 Water Quality Certification was implemented and enforced.

The NYDEC denial considered and was based on the Clean Water Act WQC authority (emphasis mine):

Basis for Denial

The Department denies the 2019 WQC Application based on Transco’s inability to demonstrate the Project’s compliance with all applicable water quality standards. To obtain a WQC from the Department, an applicant must, among other requirements, demonstrate compliance with State water quality standards. See 6 NYCRR § 608.9. Transco has not demonstrated that construction and operation of the Project would comply with applicable water quality standards.

 The NYDEC denial then goes into detail to specify the “Statutory and Regulatory Basis” of the denial, which water quality standards are applicable, apply the relevant science, and elucidate how the project failed to demonstrate compliance.

Importantly, NYDEC then considers “qualitative assessments” – which explicitly includes climate change – and then links climate to enforceable NY State water quality standards:

As discussed further below, this includes qualitative assessments of the Project’s greenhouse gas (“GHG”) emissions and climate change impacts, especially given the State’s recently-enacted Climate Leadership and Community Protection Act (“Climate Act”),41 as well as the need for the Project in light of anticipated natural gas supply and demand in the downstate region. The assessment of these additional qualitative factors provides further supplemental support for the Department’s determination that the default 500-foot mixing zone is inappropriate for the hard clam critical resource area. […]

… the Project would result in GHG emissions, which cause climate change and thus indirectly impact water and coastal resources, including from the construction and operation of the Project, and from reasonably foreseeable upstream and downstream GHG emissions.44 The Project’s climate change impacts due to GHG emissions are especially important in light of the State’s recently-enacted Climate Act.

Finally, NYDEC’ denial then goes on to establish – independent of the CWQ WQC basis – an additional climate change basis for denying the permits: (the excerpts below begin on page 14 – please read the entire section!)

Greenhouse Gas Emissions and Climate Impacts

While the 2019 WQC Application was pending before the Department, the State enacted the Climate Act. Among other things, as described further below, the Climate Act codifies the State’s energy policy and goals, requires Statewide reductions in GHG emissions, and necessitates a transition away from the use of natural gas to produce electricity. Particularly without the identification of alternatives or GHG mitigation measures, the Project appears to be inconsistent with these requirements, as set forth below.

First, the Project will result in GHG emissions, which cause and contribute to climate change. GHG emissions associated with the Project include those from the full lifecycle of natural gas that will be transported through the Project. This includes upstream emissions, GHG emissions associated with the construction and operation of the Project, and downstream emissions. Upstream GHG emissions from the Project include those associated with the extraction and transmission of natural gas, including the extraction or production of the natural gas that is transported through the pipeline. This would include GHG emissions associated with the extraction of natural gas in Pennsylvania through high-volume hydraulic fracturing, provided such gas is ultimately transported for consumption in the State through the Project. GHG emissions associated with the operation of the Project would include leakage and other losses of gas transported through the pipeline. Downstream GHG emissions from the Project include those caused by the combustion, by end-users in the National Grid service territory in New York City and Long Island, of the natural gas that is transported through the pipeline.

Second, in order to achieve the State’s critical and ambitious climate change and clean energy policies, the State needs to continue its ongoing transition away from natural gas and other fossil fuels. While the Department recognizes that many building assets in the State currently rely on natural gas for heating and other energy uses, the continued long-term use of fossil fuels is inconsistent with the State’s laws and objectives and with the actions necessary to prevent the most severe impacts from climate change. Therefore, the State must continue to support the ongoing transition to renewable and other clean sources of energy, as it works to ultimately eliminate all fossil fuel combustion sources that cannot be counterbalanced by guaranteed permanent carbon sequestration. Without appropriate alternatives or GHG mitigation measures, the Project could extend the amount of time that natural gas may be relied upon to produce energy, which could in turn delay, frustrate, or increase the cost of the necessary transition away from natural gas and other fossil fuels.

Third, the Climate Act requires a reduction of GHG emissions, a transition to renewable and other clean sources of energy, and a pathway for the ultimate achievement of net zero GHG emissions in all sectors of the economy. The Project would be inconsistent with or interfere with the Statewide GHG emission limits and other requirements established in the Climate Act, without the identification of additional alternatives or GHG mitigation measures.

You won’t find ANY of this in the DEP “denial”.

There are reasons for that: politically powerful NJ polluters block any application of DEP regulations over greenhouse gas emissions, they don’t want DEP to enforce State water quality standards, and they don’t want any public discussion of loopholes in State water quality standards and permits, like “mixing zones”.

DEP and developers and polluters don’t want the public to know that DEP has completely ignored enforcement of Clean Water Act Section 410 WQC (by burying it in the State wetlands program) and limits actual implementation of State water quality standards to the surface water discharge permit program (NJPDES).

And they both don’t want people to know that the NJ Global Warming Response Act GHG emission reduction goals are toothless.

Repeat: The NJ DEP “denial” has none of this.

Let me be every clear. The DEP “denial” has:

1) no consideration of greenhouse gas emissions;

2) no consideration of climate impacts;

3) no consideration of compliance with NJ State Water Quality Standards;

4) no linkage between greenhouse gas emissions, climate impacts, and water quality standards; and

5) no consideration of the lifecycle emissions of greenhouse gases with State GHG emission reduction goals and energy policies.

Instead, the DEP “denial” is based exclusively on failure to demonstrate a “compelling public need”.

The “compelling public need” demonstration is limited to failure to receive NY DEC approval. 

The NJ State “compelling public need” demonstration is highly legally vulnerable and virtually certain to be found by federal courts to be pre-empted by FERC and federal law.

Here is the relevant language from the DEP “denial” (at page 15)

Accordingly, in evaluating compliance with N.J.A.C. 7:7A-10.4, which requires that Transco demonstrate a compelling public need for the Project, the Department must conclude that, under these circumstances, public need has not been demonstrated. Furthermore, as there would be no endpoint for the Project absent NYSDEC’s approval, Transco’s application has been rendered effectively moot and any grant of its permit applications by the Department would be futile.

Under these circumstances, the Department need not resolve any further issues presented by the subject applications.

Did you get that?

DEP need not “resolve” such issues as greenhouse gas emissions, climate change impacts, and water quality impacts from a massive fossil infrastructure project.

This statement is an admission that DEP lacks the legal and regulatory power to consider and deny a fossil infrastructure project on the basis of GHG emissions, climate impacts, or the aspirational GHG emission reduction goals of the NJ Global Warming Response Act.

This statement is an admission that DEP has totally failed to implement the Clean Water Act Section 401 Water Quality Certification provisions.

And to add insult to injury, the DEP’s exclusive basis – the “compelling public need” standard – was used as a sop to clueless NJ environmental groups. It was designed by Christie DEP Deputy Commissioner Ray Cantor as a fig leaf to cover the dirty deal to avoid a legislative veto of the Christie DEP rollback of the Category One stream buffer regulations.

Those same dangerous fools now embrace a vague and unenforceable standard that was part of a dirty Christie DEP deal to praise an empty cynical gesture by the Murphy administration.

And the manipulative fingerprints of DEP Deputy Commissioner Deb Mans – formerly with NY/NJ Baykeeper – are all over this, witness the recent NY/NJ Baykeeper perfectly timed set up on-line “protest” against NSE.

[Full disclosure: I’ve been in a similar position with Mans, but  handled the matter very differently. In 2002, I went from the Policy Director for the NJ Chapter of the Sierra Club back to the DEP as a policy advisor to Commissioner Campbell. I frequently found myself in the perceived role as both a token and expected by Campbell to serve as a liaison to the environmental community. However, unlike Deb Mans, I was qualified for my position, I never misled or manipulated the environmental community, and I frequently provided an inside source of information to environmentalists and the media of many bad things the Campbell did.]

You can’t make this stuff up,

I’ve given up on Tom Johnson at NJ Spotlight, but here’s my note to Jon Hurdle:

———- Original Message ———-
From: Bill WOLFE <bill_wolfe@comcast.net>
To: jonhurdle@gmail.com, “Tittel, Jeff” <jeff.tittel@verizon.net>, “Tittel, Jeff” <jeff.tittel@sierraclub.org>
Date: May 18, 2020 at 12:42 PM
Subject: NY DEC denial of NSE – climate & water quality

Jon – please read the NY DEC denial of the NSE pipeline:
NY DEC considered climate impacts and directly linked greenhouse gas emissions with water quality (as I’ve been urging for many years now, most recently on the Delaware LNG plant).
In contrast, NJ DEP did not and can not consider GHG emissions, climate impacts, or water quality certificate denial.
Your readers and NJ environmental activists need to know this – unfortunately, Tom Johnson’s story today obfuscates those regulatory defects in NJ DEP rules.
If DEP is going to correct these flaws, they must first admit them. Same thing for NJ ENGO, climate and energy activists, who continue to miss the issues and fail to pressure NJ DEP and Gov. Murphy.
Wolfe
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