Chairman Smith Guts “Green Amendment” By Deleting The Enforcement Mechanism
DEP Action And Inaction Deleted
EXPLANATION – Matter enclosed in bold-faced brackets [thus] in the above bill is
not enacted and is intended to be omitted in the law.
Chairman Smith amended the proposed “Green Amendment” and released SCR 43 from Committee yesterday. Smith provided no explanation or justification for the amendments in a brief 15 minute hearing, which ended in loud applause from supporters of the Green Amendment.
The amendments listed “a safe climate” among the Constitutional “rights”, appearing to address one of 3 fatal flaws I flagged initially on March 2 and that later was requested by Maya van Rossum in testimony on March 7.
But the amendments did NOT include 2 other fatal flaws: lack of rights for environmental justice and public health (a “healthy environment” means what it says: it does not say healthy for humans. This lack of precision is replicated throughout this flawed measure.)
And there was no specific scientific or numeric standard included in the SCR that would define what a “safe climate” is. I suggested 350 parts per million CO2, the level scientists suggest is the highest concentration that can support a stable (“safe”) climate.
But, before climate activists start applauding, consider the fact that the brackets taketh away. SCR 43 now reads:
The State shall not infringe upon these rights 1[, by action or inaction]1
State “action” means things like DEP permits.
State “inaction” means things like the failure of DEP regulations and permits to address or reduce greenhouse gas emissions, stop destruction of forests and farms by development, and allow petro-chemical companies to poison the air and water of the State.
And the law would not apply to violations of these rights by the private sector – only by the State (and are municipal, County, and regional governments and Authorities considered “the State”?)
All of which confirm my assessment: Washington Post:
The measure would decree that “the state’s natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations. The state shall serve as trustee of these resources, and shall conserve and maintain them for the benefit of all people.”
But Bill Wolfe, a former official with the state Department of Environmental Protection and a frequent critic of the agency, said the state already is the trustee of those resources under the Public Trust Doctrine, a legal concept dating back to the Roman Empire that the state has adopted in other areas, including access to beaches and waterways.
“The bill is deeply flawed, and I believe it is more performative than a serious effort,” he said.
[Update – see this for background info on the NJ DEP “public trust doctrine”.
The NJ DEP also has explicit legal authority to enforce the Public Trust Doctrine in the toxic site remediation program, the Natural Resource Restoration program, and under the delegated federal Clean Water Act. There s implicit authority in DEP’s enabling legislation and several other State environmental laws. NJ DEP and environmental groups do very, very little work to actually enforce this existing authority.~~~ end update]
So, why would Chairman Smith delete “State action and inaction” from the bill?
It was clearly a sop to the business community, who claimed that: (read the whole thing)
NJBIA is opposing a constitutional amendment that attempts to establish that every person has a legal right to a clean environment because it will lead to a surge in costly litigiation (sic) and create uncertainty that would jeopardize financing for public infrastructure and private development projects.
Let me translate that: the “costly litigation” NJ BIA refers to is legal challenges to DEP permits (“State action”) that violate environmental rights. These challenges could stop or increase the costs of proposed development or the operations of existing polluters.
The “uncertainty” NJ BIA refers to involves whether citizens might challenge DEP permits or regulations for failure to protect those environmental rights and thereby block their proposed developments or impose compliance costs on their pollution (“State inaction”)
(and Ray Cantor at NJ BIA should get a spell check or editor – bad form to make those kinds of typos, especially in such a significant statement).
So, by deleting “state action and inaction”, that uncertainty is greatly reduced, if not eliminated.
Basically, the DEP status quo is protected – all the laws, regulations, and DEP permit practices are presumed adequate and the burden on the challenger is increased.
Legal challenges to DEP permits or regulations to enforce those rights can not rely on the specific legal standard that the “inaction” of the State is what the lawyers call “actionable”.
Courts will not break a sweat in (“strict scrutiny”) defining what it means for the “State” to “infringe upon” these rights. They may now even conclude that deletion of “State action and inaction” was legislative intent to take “inaction” completely off the table. That means decades of individual lawsuits on a case by case site specific basis to develop the case law and precedent.
(contrast that with, let’s say, State DEP and BPU regulations that would mandate reductions in GHG emissions to meet the aspirational goals of the Global Warming Response Act and the toothless rhetoric of Gov. Murphy’s numerous self serving Executive Orders on climate and energy. I could offer dozens of more examples of regulatory standards that would put teeth in environmental laws and regulations and hold DEP accountable to democratic demands, while empowering activists, not lawyers and judges.).
(and in contrast to the closed judicial chambers, all those DEP regulatory adoption and permit issuance procedures include public notice, public comment, and public hearings, which activists can use as organizing and political platforms to turn out mass crowds to press for real substantive and structural changes, not aspirational vague platitudes like a “safe climate” as ruled by a judge (with a “compelling state interest” escape hatch)
When I think of all the hard work of young and idealistic and enthusiastic climate activists in particular – and the round of applause given to Smith upon release of the SCR yesterday – it turns my stomach and makes my blood boil.
These people will invest their hearts and souls in working to enact this Resolution.
They’ve been told that this is what democracy looks like.
They’ve been told that this approach will be “a game changer” on climate.
Yet, even if they succeed, their democratic work work will do very little and depend on raising money to hire expensive lawyers and experts to file lawsuits based on esoteric legal doctrines argued in closed courtroom settings and decided by a (likely) conservative old white man in black robes.
This is a gross perversion of democracy. And deeply cynical manipulation by Trenton policymakers and the “leaders” of this initiative.
Worse, it will divert huge activist resources and time from far more effective strategies that actually build democratic political power, hold corporate polluters and government accountable, and force the kind of changes required to preserve what’s left of our natural environment and damped the climate catastrophe.
In closing, I thought we had hit moral rock bottom and cynicism when Joe Biden described manufacture and provision of 2,000 pound bombs to Israel to murder women and children in a genocide as “investments in a US jobs program” – in swing states no less!
But, manipulation of idealistic young people about the viability of their future might be worse.
[End Note: I intentionally left Chairman Smith’s remarks out, because I was disgusted in how he laid the foundation to blame the activists when this fails (e.g. they failed to convince the legislature). But, because NJ Spotlight reported them (in a boxed quote, no less), I’ll note that because Smith knows that the SCR 43 is DOA, it confirms my criticism that he’s engaging in a cynical performative stunt:
‘You are going to have a big job to convince the Legislature that this is the right thing to do,’ said Sen. Bob Smith (D-Middlesex), referring to the proposed constitutional amendment.