Climate Catastrophe: First The Green Masks Came Off – Now The Gloves Are Off

And Pretty Soon, The Wheels Are Coming Off

Climate Lawsuit Exposes The Sham Of NJ Climate Laws & Fraud Of Fake Green Groups

Upcoming Industry Lawsuit Sure To Put The Final Nail In The Coffin

Climate activists (EMPOWER NJ) have announced a lawsuit against the Murphy administration challenging DEP’s denial of their petition for rulemaking designed to force DEP to adopt enforceable regulations on greenhouse gas emissions, see NJ Spotlight story today.

We wrote about that petition to DEP several times, most recently in this post:

• Murphy DEP Denial Of Climate Petition Exposes The Sham Of Murphy’s Climate Rhetoric And Executive Orders

I don’t want to repeat all those arguments today, but I do want to make a few very quick observations – and a painful prediction – that clarify issues raised by the lawsuit, flaws in the news coverage, and future legal and political prospects.

I)  Lawsuit

I haven’t read the legal arguments yet, but I assume that the lawsuit will challenge DEP’s petition denial based on conflicts with State climate laws and Murphy’s Executive Orders and as an “arbitrary and capricious” violation of the NJ Administrative Procedures Act.

As such, it will force the Murphy Attorney General’s Office to file legal briefs that finally and openly admit the fundamental legal flaws that I have long written about with respect to NJ’s climate laws and Gov. Murphy’s Executive Orders, specifically:

1) The Global Warming Response Act (and it’s recent amendment) are toothless, in that they do not establish enforceable greenhouse gas emission reduction goals and do not authorize DEP to regulate greenhouse gas emissions from individual GHG emission sources, in relation to the goals.

In fact, just the opposite: a very strong legal argument can (and will) be made that:

a) the GWRA’s 80% emission reduction goals are purely aspirational – as are the amendments which call for interim “benchmarks”; and

b) the legislature eliminated DEP’s regulatory authority to control GHG emissions, on both a statewide basis (i.e. overall goals) and on an individual GHG emission source level via air permit emission limits.

Instead, the legislature provided that the market based Regional Greenhouse Gas Initiative (RGGI) is the sole State program for addressing GHG emissions, not DEP regulatory authority.

2) Gov. Murphy’s various Executive Orders are not legally binding on the private sector, that they can not expand DEP’s authority beyond what’s in statute, that they can not legally bind DEP’s discretion (e.g. by forcing DEP to propose regulations that follow the interim emission reduction goals or timetables in the Ex. Order), and that any violation of them by DEP is not a legally actionable matter in a Court of law, but rather an internal Executive Branch management issue.

In other words, climate activists, the media, and the public have been duped since the 2007 passage of the Global Warming Response Act. They are doubly duped by being told that Gov. Murphy’s Executive Orders were meaningful (instead of the legal equivalent of a press release).

That fraud will all now be made absolutely clear, and it will be revealed by the Murphy Attorney General in legal briefs. (A similar thing happened when the Biden administration’s lie about 80 million acres of Gulf oil & gas leases was exposed by legal briefs.)

These tragic legal realities collide with the naive and ill informed assumptions of the EMPOWER activists:

The failure to establish such benchmarks, the coalition argued, ignores Gov. Phil Murphy’s own executive order issued in November 2021, calling on the state to reduce carbon pollution 50% below 2006 levels by 2030. The coalition also argued the denial flouts amendments to the Global Warming Response Act signed by Murphy in 2019 requiring interim benchmarks be established to achieve the goal of reducing emissions by 80% by 2050.

“There are only two ways to look at DEP’s outright denial of our petition: DEP has gone rogue or this administration is uninterested in pursuing its own stated policies and state law,’’ said John Reichman, chair of BlueWaveNJ’s environment committee and a member of the coalition, Empower NJ.

No, there are 3 ways: the third is that the NJ law is toothless.

The DEP has not gone rogue. DEP is led by a former corporate lawyer who knows the law and follows orders.

The Murphy administration – like their predecessors – has always been spouting slogans and they have always known that NJ climate laws are toothless.

Another media outlet similarly exposes this contradiction

“Biden set up enforceable targets. Many other states have also set legally enforceable targets. New Jersey is an outlier, where there’s no rules or regulations at DEP to actually enforce or achieve these targets,” said Matt Smith, NJ director of Food and Water Watch.

NJ law does not empower DEP to set enforceable “targets” or permit specific GHG emission limits.

President Biden’s “targets” are not enforceable. They are just as aspirational and fraudulent as Gov. Murphy’s are.

The real comparison that EMPOWER ignored is right next door in New York, where there are legally enforceable standards, which, as I’ve written, were just used by NY DEC to deny air permits for new gas plants. WAKE UP!

II)  Spotlight coverage

As I’ve written, NJ Spotlight failed to cover the EMPOWER petition when it mattered, ie. when it was filed and when DEP postponed a decision just before the election. This is important, because it is possible that Gov. Murphy’s narrow margin of victory in the election was provided by voters who mistakenly believed that he was serious about addressing the climate crisis.

It is also interesting to note a very revealing fact in how they source today’s lawsuit story.

I haven’t conducted the analysis but would reliably estimate that well over 90% of Spotlight stories on climate and energy rely on just 3 environmental sources and that all these sources almost always praise Gov. Murphy and DEP and BPU: Doug O’Malley, Ed Potosnak, and Tom Gilbert.

But today, Tom Johnson uses Tracy Carluccio from Delaware Riverkeeper:

“The Governor and his DEP must recognize the urgency of measurably reduce greenhouse gas emissions and they must specifically demonstrate how NJ plans to achieve what Gov. Murphy says he wants — a 50 percent cut back by 2030,’’ said Tracy Carluccio, deputy director of the Delaware Riverkeeper Network.

Why didn’t Tom put Murphy cheerleaders Doug O’Malley, Ed Potosnak, and Tom Gilbert on the spot and force them to go on the record?

So, where are the Murphy sycophants?

III)  Future Prospects

Legally, future prospects are bleak and getting bleaker.

At the national level, the US Supreme Court is on the verge of stripping EPA of jurisdiction to regulate greenhouse gas emissions.

A similar legal attack is very likely to be mounted in NJ that challenges DEP’s recently proposed CO2 emission standards for electric generating units.

[Ironically, DEP’s proposed CO2 emission standards were not even proposed pursuant to the Global Warming Response Act. The DEP’s legal authority and basis for the proposal is the NJ Air Pollution Control Act (traditional BACT based). But DEP does such a lousy job explaining that and puts so much bullshit in the proposal about the GWRA that industry can assemble a plausible legal argument that DEP did. DEP may even think that the GWRA authorizes emission standards! DEP seems to think they can wave a magic wand called a “comprehensive strategy” and do whatever they want. We used to write what were called “Basis And Background” documents at DEP to make the legal basis clear. But DEP seems to have simply assumed they have unambiguous legal authority. DEP basically just cited the GWRA on the cover sheet of the proposal, with virtually no legal basis provided. That was a huge legal mistake.

Amazingly, here is all that DEP wrote about the complex relationship between statewide emission reduction “goals” of the GWRA and site specific individual CO2 emission limits on a single discrete category of emissions sources (EGU’s) for a single global warming gas (CO2): (emphasis mine)

“Comprehensive strategy”? What are the “relevant provisions”? Are those “relevant provisions” authorizing and applicable provisions? And it is not at all clear that the GWRA “requires” “New Jersey” (who in NJ? How?) to reduce short lived pollutants – and what is the distinction between all GWRA pollutants and short lived ones? And where is the authority delegated to the DEP to set emission standards and enforce them in individual air permits? On top of that, there is the legislative history of the GWRA (where the introduced version of the bill included DEP regulatory and permit authority, which was deleted. Subsequently, RGGI was enacted. This is certainly not a slam dunk legal case that can be asserted in a single vague paragraph. Heads should roll at DEP for this schlock legal work.)

Industry will challenge DEP’s regulations despite the fact that they are lax and will have very little if any impact.

Here’s where the EMPOWER NJ activists get it exactly right:

“None of the administration’s existing or proposed climate rules will prevent the continued proliferation of dirty pipelines, power plants and other new sources of climate destroying pollution in New Jersey. The proposed power plant rule doesn’t even require polluters to use the best available technology, let alone do anything to stop new fossil fuel plants, like the one proposed by the Passaic Valley Sewerage Commission in Newark, from being approved”, added Matt Smith, NJ State Director for Food & Water Watch.

The corporate GHG polluters are willing to allow RGGI to remain in place, because RGGI not only does not cap total emissions it actually shields individual polluters from DEP regulation and merely requires that they purchase GHG emissions allowances, which are very small cost and amount to business as usual.

But corporate polluters simply can not accept DEP regulatory authority over their emissions. Period.

Should DEP be allowed to regulate GHG emissions now, a future DEP Commissioner with a spine – unlike the current former corporate lawyer heading DEP – might take the GWRA goals seriously and establish an enforceable Statewide GHG emissions cap; ratchet down on current GHG emissions; and block issuance of permits for new fossil infrastructure.

[Update: and just imagine if DEP proposed land use regulations (REAL regulations, not the FAKE ones that will be proposed later this year) that mandated that any new buildings or developments seeking DEP land use or all other permits and approvals had to be electric powered, install solar, and provide emissions offsets for their climate footprints!

Imagine if DEP EV programs and diesel rules actually mandated that all commercial vehicle fleets be converted to electric by 2030!

Imagine if DEP’s greenhouse gas emissions rules regulated methane – which they don’t – and regulated all sources – not just 10% that produce electric power for the grid – and lifecycle impacts – which they don’t even mention – and provided clear authority for DEP to deny permits based on failure to meet GWRA goals – which they don’t – and mandated the shutdown of major sources of GHG emissions that are no longer necessary, like garbage incinerators, sludge incinerators and medical waste incinerators – which they don’t. 

Imagine if DEP used land use permit renewal authority to mandate that buildings be electrified, energy efficient, and solar powered.

Imagine if DEP used air permit renewal authority to mandate reductions in GHG emissions to actually attain the GWRA goals.

Imagine if DEP imposed $130 per ton fees on greenhouse gas emissions that they mandate for other air pollutants.

Imagine if DEP land use regulations mandated that any land conversion or deforestation that reduced carbon sequestration had to be offset or mitigated by a 5 – 1 ratio.

Imagine if DEP land use regulations required that every large flat roof had and parking lot had to have solar.

That every large employer and shopping center had to provide EV recharging stations.

Just imagine what DEP could do to reduce emissions if they had and seriously used regulatory authority!

One has to imagine all this because DEP has no plans at all to do any of this.

So why aren’t NJ climate activists demanding ANY of this? ~~~ end update]

Corporate polluters simply will not tolerate those risks and will sue the Murphy DEP to block any possibility of that in the future.

On the NJ State level, as I noted above, the EMPOWER lawsuit will fail. The only question is whether the Court will mask the underlying substantive legal flaws I’ve noted above behind a narrow administrative law procedural “arbitrary and capricious” decision, where they defer to DEP expertise. Regardless, the AG’s briefs will finally take the mask off and expose the fraud.

Politically, as I’ve written, the green masks are off – of both Murphy and his sycophants – and now this lawsuit means that the gloves are off.

Because: a) Gov. Murphy can no longer hide behind the fake green cover provided by his sycophants;, b) it is becoming increasingly obvious that his DEP  Commissioner is a corporate fraud; c) the media smells blood in the water; d) the problems are all getting worse; d) there are several decisions in the pipeline that will further expose the fraud; and e) the AG will be forced to let the cat out of the bag – this all means that the wheels will come off in the near future.

Bank on it.

It pains me to write this, but the sooner the dire truth is known, perhaps that will prompt the activist to get out in the streets, end the inside DEP “Stakeholder” games, force the media to warn the people, and discredit the Murphy green cheerleaders and sycophants who provide political cover and false hope.

[End Note: Not all the Green masks are off.

I just got a hold of the Empower NJ Coalition press release.

Notably absent from that press release are Coalition members Doug O’Malley (Environment NJ), Dave Pringle (consultant, former CWA), and Amy Goldsmith (CWA).

Their absence is not an accident. I’ve worked with them for many years and all of them are always very eager for any press coverage and fight like hell to get a quote in a press release.

It means that they are afraid of antagonizing the Murphy administration and it signals that they are still loyal sycophants in the Murphy Green cover operation. Pringle is a flagrant collaborator, as his role in the Christie administration and his recent manipulations on the Pinelands nominees reveal. O’Malley is hopelessly corrupt as is Goldsmith.

Shame on them.