Assembly Leader Fails To Post Bill For A Vote, Despite Prior Assembly Committee Amendments That Further Gutted An Already Weakened Bill
Both Business And EJ Lobbyists Exaggerate The Impacts Of The Bill
Yesterday, Gov. Murphy’s “environmental justice” bill – strongly backed by EJ advocates – failed to receive consideration after Assembly Speaker Coughlin (D-Middlesex) refused to post it for legislative deliberation and vote.
Today we provide a brief note with inconvenient facts and critical analysis that the EJ leadership is not telling their own communities and is not being reported by NJ Spotlight.
Let me attempt to: 1) illustrate confusion and major conflicts between Senate and Assembly versions of the bill; 2) explain how the bill is even weaker than I knew, because it was amended in an Assembly Committee on July 20; and 3) recap the strategic disaster that just occurred.
I) Conflicts Between Senate and Assembly Versions On Critical Issues
This is a very big deal that is being ignored.
The Senate and Assembly versions are different in very fundamental ways.
The Assembly version includes a mandate that DEP “shall” deny a permit upon a certain finding, while the Senate version provides discretion that DEP “may” deny a permit on a scientifically and legally different finding.
These are huge differences and it is shocking and embarrassing that, after committee hearings in both Houses, that legislators and advocates are on 2 completely different pages.
The Senate version merely authorizes DEP to deny a new or expanded facility permit (my emphasis):
the department may, after review of the environmental justice impact statement, … deny a permit application for a new or expanded facility located in whole or in part in an overburdened community, upon a finding that approval of the permit application would, together with the cumulative environmental or public health stressors posed by existing conditions located in or affecting the overburdened community, result in a disproportionate impact to the overburdened community when compared to the impact and risk born by other communities in the State….
But the Assembly version, while making the key finding subject to DEP discretion, mandates that DEP deny a permit if they find:
the department shall, after review of the environmental justice impact statement, […] deny a permit for a new facility … upon a finding that approval of the permit as proposed, would, together with other environment public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State…
The Assembly version makes the key finding by DEP discretionary, which essentially makes the mandatory permit denial decision discretionary. That’s because when DEP scientists – and their politically appointed bosses and timid lawyers – know that their findings will result in a mandatory permit denial, they will be much more cautious, rigorous, conservative, and reluctant to make that finding.
This mandatory permit denial hammer creates a similar legal/scientific/institutional dynamic as that under the mandatory penalties of the Clean Water Enforcement Act. The mandatory penalty hammer led DEP to create all kinds of “flexibility” loopholes in the permits to avoid the issuance of mandatory penalties.
This is how a captured and corrupt bureaucracy behaves when they are subject to a bill with no legislative standards, lax legislative oversight, no media accountability, rigged rulemaking policies and procedures, little public engagement, no policy leadership by the DEP Commissioner or Governor, and in consideration of revolving door career opportunities (ask Mr. Cantor, Mr. Hart, Mr. Berkowitz, Mr. Valeri & other former DEP officials about that) and under undue influence by polluters – while all of this corruption is rewarded by green cheerleading by paid, incompetent, and co-opted EJ sycophants (Pringle, Gaddy, Goldsmith et al) and a depleted, stenographic, and foundation funded faux progressive press corps. (If the shoes fit …. Do I need to name more names?)
Still, regardless of how DEP actually behaves and implements legislation, the Assembly bill reflects large and untenable legal and scientific conflicts with the Senate version.
Similarly, the Assembly version include a “cause or contribute to” standard, while the Senate version does not. Again, the Assembly version is far more stringent than the Senate’s.
How did we get to the point where the public was led to believe that the bill was ready for final passage by both houses when these basic conflicts were unresolved ?
(Note: I Tweeted and called Ray Cantor a “liar” about the “shall” issue, based on my review of the Senate version. I now stand corrected and apologize, given the July 20 Assembly version which I just today read.)
II) Substantively, the Bill Is MUCH Weaker Than I Knew
On July 20, I wrote about serious flaws in the proposed legislation (Senate version) and explained why it would not protect overburdened EJ communities because:
1) it exempted all current pollution permits that are creating unjust and harmful pollution burdens;
2) it eliminated local power to block DEP permits in the original version of the bill, stripping people and local governments of real power and forcing exclusive reliance on DEP decisions; and
3) it relied on a vague, standard less “environmental justice impact statement” review process and decision by the DEP (an agency that for decades has lacked the spine, expertise, and resources to enforce EJ policy).
Given DEP’s history on EJ regulation, a standard less legislative delegation of power to DEP – which amounts to a “just trust us” posture – in legislation is absurd.
And it is just not serious to write blank slate legislation on a legally and scientifically complex topic, e.g. like what is an “environmental justice impact statement”? What is a disproportionate burden? What is an unacceptable risk? What does “cause or contribute to” mean, etc.
(for those who do not understand what I mean when I say this EJ legislation is not “serious” and follow my criticism of a “lack of legislative standards” and use of the wonky phrase: a “vague and standardless delegation to DEP” and why there needs to be strict deadlines for DEP regulations, please read Sections 33-34 of the Highlands Act. That law is a well thought out and serious piece of legislation. I drafted these sections.)
But I just now learned that on that same day I wrote that post (July 20), the already weakened version of the bill was further gutted by several terrible Assembly Committee amendments that:
1. exempted medical waste incinerators, regardless of pollution impacts;
2. exempted all small air polluters (and an unlimited amount of pollution) by including a huge 100 ton per year emission threshold;
3. exempted toxic site cleanup risks; (e.g. Troy Chemical, Passaic River cleanup)
4. created a giant loophole to allow DEP to issue a permit – regardless of unjust or disproportionate impacts, and/or unacceptable public health risks – for an undefined “compelling public purpose“; and
5. extended the effective date of the law from 180 days after passage until after DEP adopts regulations.
This effectively eliminates any deadline for DEP regulations. Let me explain this wonky but critical issue.
The would bill require DEP to adopt regulations, but does not include a deadline. Legally, DEP must have regulations in place before they can make binding permit decisions.
The original version of the bill became effective 180 days after passage and was to be implemented via DEP permit processes.
Because DEP legally must have regulations in place before making EJ permit decisions, this effectively meant that DEP was required to adopt regulations in 180 days, a very tight timeframe given DEP’s traditional lengthy multi-year period for adopting new regulations and the complexity of EJ science and policies.
By eliminating the 180 day effect date and failure to include a deadline for DEP to adopt regulations, the amended bill would allow polluters to receive DEP permits with NO EJ reviews until DEP adopts regulations, which regulations likely will be tied up for many, many years (at least 5 years) by the lack of legislative standards in the bill, scientific complexity, business lobbying, and then polluter lawsuits. And 5 years is optimistic – more like 10 might be realistic.
Failure by EJ advocates who worked on this bill to demand a deadline for DEP to adopt rules is a monumental and unforgivable fuckup.
III) Recapping a Political Disaster – Five Factors That Drove This Clusterfuck
1. As I’ve written, environmental justice advocates have been totally ineffective, compromised, co-opted, and been politically played by Democrats for many years.
After many years of failure, for political and self-serving reasons, those advocates grossly exaggerated the strength of the current version of a 6 year old bill, which was developed YEARS BEFORE THE CURRENT PRESSURE CREATED BY STREET PROTESTS.
That original 2014 version of the legislation was gutted 2 years ago, again before the current Movement arose.
Gov. Murphy revived this old compromise. The EJ advocates falsely praised Gov. Murphy for his support of the compromise 2014 gutted bill.
2. The business community, taking advantage of the exaggerated and false claims of EJ advocates, also exaggerated the impacts of the bill. This stoked fears and provided political cover.
3. NJ Spotlight uncritically reported the exaggerations of the EJ advocates and the business community. This further stoked the fears that led to further weakening and the demise of an even weaker bill.
4. Based on Spotlight reported EJ exaggerations and corporate lobbyist, the unions who always fall for the “jobs versus environment” Neoliberal corporate lies were used to provide cover for Democrats.
5. The Democrats now had cover to further amend and weaken the bill and then abandon it.
And just think – a weakened compromise bill didn’t even address the climate catastrophe.
We’re doomed – and the current “leadership” the brought us this disaster needs to step down.