Murphy DEP Sends Troubling Signals In Rollout of Climate Report

Posted on July 5, 2020 by Bill Wolfe

The “Regulatory Prelude” Continues – For Over 15 Years

Little Transparency Or Scrutiny Of Critical DEP Climate Regulations

All signs point to a massive DEP failure to regulate greenhouse gas emissions

I want to make a few important points on the media’s coverage of the Murphy DEP’s release this week of the Climate Science Report and the over the top DEP press release (check out the rhetoric and screaming headlines!)

(the only good news is that at least this press release didn’t include gushing praise quotes from the sycophantic fake green cheerleaders DEP funds. Notably absent are Ed Potosnak, Doug O’Malley, Tom Gilbert, Tim Dillingham, Eric Stiles, Jim Waltman, & Amy Goldsmith! Perhaps they heard my criticism about unethical conflicts of interest? I’ll take credit.)

Taken together, they provide very troubling signals for the upcoming regulatory package Gov. Murphy has dubbed “PACT” – for “Protecting Against Climate Threats”.

For those that don’t know me, for 13 years as a DEP policy planner, I worked with Governors’ Offices (Kean, Florio, McGreevey) and DEP Commissioners from the inside on developing policy, writing regulations, representing DEP before the legislature, and drafting the spin in DEP press releases. I was forced out as a whistleblower and then spent 20+ years as an advocate in the ENGO community. So I know exactly how the game is played and where the skeletons are buried – what they want you to know and what they want to hide and obscure. So I hope you will read this entire post, including hitting the links to verify my claims.

I have to limit my comments to the media coverage and Gov. Murphy’s Executive Order for now, because the link to the Report will not open on my computer. Perhaps because the link is not working, or because the Report is a large document, or because my internet connection is too slow to open it up. Hit the link above and try for yourself.

1. The Context and History Are Missing

The Report was prompted by Governor Murphy’s Executive Order #100:

WHEREAS, in accordance with the GWRA, N.J.S.A. 26:2C-41, DEP will deliver, by June 30, 2020, a GWRA report that will: (1) identify all significant sources of Statewide greenhouse gas emissions, including short-lived climate pollutants; (2) monitor progress toward the 2020 limit, the 2050 limit and any interim limits; and (3) inform further actions the State must take to reduce greenhouse gas emissions, including short-lived climate pollutants such as black carbon;

“Deliver”? Who uses such language? Is DEP delivering a pizza?

While the Report was prompted by Gov. Murphy’s Executive Order – which he falsely touts as leadership – the actual legal basis, as stated in the Order itself, is the Global Warming Response Act (GWRA).

The Gov. has not sought to expand or strengthen that 13 year old GWRA law, and, in fact did just the opposite, by effectively blocking passage of a bill  – (see A1212[1R] and the original version (A1212) – originally designed to strengthen the RGGI program to, among other things, ratchet down on emissions and set a real enforceable emissions cap.

That is important, because the GWRA was signed into law in July 2007, and DEP has virtually ignored the GWRA for 13 YEARS.

So, Gov. Murphy broke no new legal or policy ground and is asserting no leadership at all.

Worse, as we note in detail below, several elements of his Executive Order merely rehash GWRA requirements, or duplicate DEP programs in existence since the Whitman Administration (1994) (e.g. the greenhouse gas emissions monitoring and inventory program).

Here is some evidence to support that, from DEP regulatory documents:

On January 23, 2003, the Department adopted regulations requiring large stationary sources to report emissions of the greenhouse gases carbon dioxide (CO2) and methane (CH4) (DEP Docket No. 03-02-01/149).

Readers that are interested in this shameful history should visit my September 2017 post:

2. DEP Commissioner McCabe misrepresented the purpose of the Report

As I noted, the Report was prompted by Gov. Murphy’s Executive Order #100.

The primary stated objectives of the Report, under the GWRA and the EO 100, are to present to the public and scientific community and provide the scientific basis of the DEP climate regulations Gov. Murphy called “PACT” – “Protecting Against Climate Threats”.

But DEP Commissioner McCabe not only ignored the actual purpose of the Report, she shifted the focus away from DEP’s obligations to adopt regulations and instead to the actions of individuals.She also narrowed the scope to “adaptation”, virtually ignoring the need for DEP to adopt regulatory mandates on GHG emissions reductions: (DEP press release quotes McCabe):

“As our climate continues to change, it is urgent that New Jerseyans understand what future impacts are likely to occur, and when. Together, we can plan for and adapt to those changes, helping one another to keep our communities safe and our economy strong. This report provides the information necessary to focus New Jersey’s strategic climate resilience planning initiatives while we work to modernize our environmental regulations, making them more responsive to these climate realities.”

Did you get that? Let me put a finer point on it:

  • We are experiencing catastrophic climate impacts now – emphasis on the “future” contradicts emergency timeframes (e.g. according to the overwhelming scientific consensus (i.e. the IPCC Special Report), we have about 10 years to make deep emissions reductions in order to avoid catastrophic irreversible effects) and current and future catastrophic impacts are masked by the use of the term “climate change” .
  • The DEP’s “organic” legislation and the NJ GWRA do not direct DEP to “keep our economy strong”. There is no legal basis for this economic policy. As we’ve written, continued economic growth wipes out any emissions reductions associated with energy efficiency and renewables.
  • The “information” is supposed to provide the basis for DEP regulation and to promote public support for those regulations
  • “Resilience planning” is only one part – the bigger part is emissions reductions, which McCabe totally ignores!

3. DEP is falsely claiming that this is the “first” DEP Climate Science Report

The press has emphasized this Report as “the first” ever. But that’s not true.

DEP “resilience” head Dave Rosenblatt (who worked closely with Christie’s “Sandy Czar“ and played a role in Christie’s Bridge-gate scandal) spins this line too: (NJ Spotlight)

“If you’ve been reading every report that comes out, you will see it as a summary of what’s already available,” said David Rosenblatt, the state’s chief resilience officer. “But for the first time in one place, New Jersey has put out the science that it is going to respond to.”

That’s just an historical whitewash. Here are the facts.

Prior to the passage of the GWRA, back in 2003-2004, DEP summarized the then current climate science  in two regulatory proposals.

In the first regulation, adopted 2005, DEP Commissioner Brad Campbell adopted regulations that defined GHG’s as “air contaminants” pursuant to the NJ Air Pollution Control Act. This legal basis anticipated the groundbreaking US Supreme Court’s decision in the Massachusetts case that required that EPA make a “finding” and regulate GHG’s.

However, a later Rutgers’ Report noted that these 2005 rules did not regulate GHG emissions – just the opposite, contrary to media and public understanding, DEP exempted them from regulation! Here’s Rutgers’ explanation of that sellout:

NJDEP has affirmed that “air pollution” as it is defined under the APCA is broad enough to encompass GHGs. In 2005, NJDEP promulgated a regulation that revised existing regulatory definitions to clarify that CO2—as a GHG—met the definition of an air pollutant under the Act.873. The agency exempted CO2 from existing regulatory requirements, but did require that stationary sources report emissions of CO2 and methane as an air pollutant.874 (see page 165 of the Rutgers Report)

DEP wrote this in the second rule proposal, to explain why they deregulated GHG emissions – it was all just a “regulatory prelude”. The Campbell DEP wrote:

This clarification of the status of CO2 is a regulatory prelude to anticipated future regulatory adoption of a Model Rule proposed through the Regional Greenhouse Gas Initiative (RGGI).

Note how “market based” RGGI – which later would emerge with huge and fatal flaws which included actually setting the emissions “caps” ABOVE THEN CURRENT EMISSIONS! – was used to displace real climate regulations. And RGGI has served as an excuse for DEP regulatory abdication and inaction for the last 15 years!.

But that second Campbell DEP rollback rule, however, also provided the real “first” comprehensive scientific basis to support regulation of greenhouse gas emissions:

Prior to regulating CO2 as an air pollutant, the Department would need to make a formal determination and advise the public that regulating CO2 is in the “best interest of human health, welfare, and the environment” as required by the Air Pollution Control Act (APCA), N.J.S.A. 26:2C-1 et seq. This proposed rule also serves as this formal determination and public advisory (See N.J.S.A. 26:2C-9.2i).

That scientific basis included virtually all of the current DEP Science Report findings, including stuff like this: (and this was way back in 2003 – 2004)

Over the past decade an overwhelming body of scientific evidence as emerged linking anthropogenic emissions of CO2 to climate change and sea level rise. The projected climate impacts and related impacts on ecosystems and society related to increasing concentrations of CO2 in the atmosphere due to anthropogenic emissions supports he conclusion that CO2 should no longer be disregarded in the formation of environmental policy. […]

The projected climate impacts and related impacts on the environment, ecosystems, and society due to increasing concentrations of CO2 in the atmosphere from anthropogenic emissions clearly supports the conclusion that CO2 emissions create significant adverse impacts on the State.

(you can read each specific findings and DEP’s formal legal and scientific determinations, starting on page 7.

In a future post, I will line item compare the 2004 DEP scientific findings to the current 2020 Report – I suspect there will be a very large over-lap, and the 2020 Report will include little new basic science, other than it’s getting much worse and far faster which should justify emergency action!

So, legally, NJ has been in “regulatory prelude” for over 15 years.

Despite this shameful 13 year history – DEP did actually issue a “draft” of the Report required by the GWRA – the Murphy DEP is falsely claiming that the current Report is the “first” ever.

This is nonsense.

And is serves to perpetuate the false narrative that Gov. Murphy is a leader on climate.

Similarly, in an effort to create the false impression of the Murphy “breaking new ground”, DEP Chief of Staff LaTourette is whitewashing all this history and made this egregiously false historical claim to NJ Spotlight:

DEP Chief of Staff Sean La Tourette said existing land-use regulation, as currently being reviewed by the department, is no longer suited to current environmental conditions.

“If we are confronted with rising sea levels and chronic inundation, we should not confine ourselves to regulating what and where we build by rules that we made 30 years ago,” he said. “We need to make rules that govern us far into the future.”

Mr. LaTourette is either incompetent or a liar.

The current DEP land use, water, and flood/stormwater rules are not 30 years old. The DEP’s land use and certain water resource rules were comprehensively “aligned” (code for rollback) by the Christie DEP just 3 years ago.  Even more recently, in addition to Christie rollbacks, the Murphy DEP just weakened them LAST YEAR! LaTourette doesn’t want to talk about that, so he makes shit up. See the: FEMA Flays Murphy DEP Stormwater Proposal

4. The DEP is echoing the gas industry’s claims

According to the Philadelphia Inquirer story, the DEP Report says:

“transition from coal-fired power plants to natural gas has led to a reduction in greenhouse gases in the US”

That is highly misleading, lacking in scientific support and consensus,  and I would argue outright false.

(This is not an inadvertent or small error. The exact same gas industry propaganda and lies crept into the Murphy BPU Energy Master Plan and form the basis of the Murphy NJ Transit $500 million fossil boondoggle and are implicit in the Murphy billion dollar wind expansion – these are no small matters when you consider all the gas infrastructure projects now before DEP and the call by environmentalists for a fossil infrastructure moratorium. These lies can provide cover for the Gov.)

I sent this note to Inquirer reporter Frank Kummer to explain:

Hi Frank – good story. But, FYI, this DEP claim is not even close to a consensus science conclusion:

“But the report found that the transition from coal-fired power plants to natural gas has led to a reduction in greenhouse gases in the U.S.”

There is significant disagreement about this for at least the following reasons:

1) the US GHG emissions inventory accounting does not fully consider the lifecycle emissions of methane from fracking, including fugitive emissions throughout the production, transmission and distribution chain;

2) methane has significantly greater warming potential than CO2, short term it’s more than 80X greater;

3) the transition of power plants from coal to gas has been accompanied by huge US fracked oil and gas production boom. This has led to significant exports of US fossil fuels, oil & gas, including coal exports. A lot of the coal that previously was burned at US power plants is exported. Checkout EIA data for support of that.

The foreign GHG emissions from US exports of coal, oil and gas are NOT considered in this claim of reduction of US emissions – nor are the GHG emissions from the production and transportation of goods that are imported to the US.

Climate change is indifferent to the location of GHG emissions.

So, at best, that is misleading – while I say it is false. The DEP is repeating the gas industry’s arguments – this is hugely significant, because we’re calling for the Gov to impose a moratorium of gas infrastructure. He can hide behind this false claim.

I should have referred Frank to Cornell Professor Ingraffia and provided links to his work on fracking and methane.

5. DEP and media are silent on upcoming regulations

To their credit, the NJ Spotlight story does mention the lack of “policy”, but provides no specificity  on the huge pending DEP regulatory issues.

We need to begin by analyzing Gov. Murphy’s Executive Order #100, which has been falsely praised by environmental groups and misreported by the media.

To illustrate this point, it is instructive to compare the provisions of the EO governing “climate adaptation” with those addressing greenhouse gas emissions reductions (“climate mitigation”).

Gov. Murphy’s Executive Order #100 clearly directs DEP to “integrate” climate adaptation considerations in various specific DEP land use and water resource regulations. DEP shall:

Integrate climate change considerations, such as sea level rise, into its regulatory and permitting programs, including but not limited to, land use permitting, water supply, stormwater and wastewater permitting and planning, air quality, and solid waste and site remediation permitting.

However, with respect climate greenhouse gas emissions reductions, the EO uses very different and vague and misleading language. The emissions reduction (AKA “mitigation”) are not specified, regulations are not specified, and instead vague and legally meaningless terms are used. DEP shall:

Establish criteria that shall govern and reduce emissions of carbon dioxide and, where necessary, short-lived climate pollutants, including but not limited to, black carbon, hydrofluorocarbons, and methane;

I’ve worked on regulatory policy for 35 years and I have no idea what the hell the phrase “Establish criteria that shall govern and reduce emissions” means.

“Criteria” are NOT enforceable standards and regulations.

No specific DEP emission reduction regulations and permits are specified (contrary to the mitigation regulations that are).

So, it really is an open question of exactly how the DEP has interpreted EO #100 and if they will even regulate greenhouse gas emissions or continue to rely on RGGI and the BPU Energy Master Plan.

This set of issues warrant close examination and scrutiny, but is getting none.

Furthermore, DEP is actually erecting barriers to the public’s ability to look inside and participate in DEP’s rule development process, which takes me to my final point.

6. There has been no media coverage of DEP “Stakeholder” process for developing climate regulations – governing emissions reduction and adaptation.

The DEP has a web page for the PACT regulations.

The DEP has held several “Stakeholder” meetings to solicit public input.

The PACT rules are broken down into 3 categories:

  • monitoring
  • carbon emissions
  • adapting land use regulations

Curiously, written Stakeholder comments to DEP are accessible on the monitoring and the adaptation rules, but NOT ON THE CARBON EMISSIONS RULES! 

It would be very interesting to know who is saying what to DEP on these essential core regulations, the ones that are being ignored or downplayed by the Gov.’s Executive Order, DEP Commissioner and even the DEP website!

I’ve already tried to warn about comments from PSE&G that seek a huge waiver – obviously that strategic request is related, among other things, to PSE&G’s development of a wind turbine assembly facility at their nuke site in the Delaware.

How many other favors are being sought and by whom?

What kind of emission reductions is DEP considering? What is the timetable? What sectors, who and what kinds of facilities will be subject to these emissions reductions? Will they be mandatory? Will they allow “offsets”? Carbon capture? Nuke credits?  

Voluntary market incentives and corporate subsidies or strict regulatory mandates?

The people want to know.

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