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Looks Like Commissioner McCabe Didn’t Get The Memo

We’ve previously ridiculed the “moral imperative” on climate change that purportedly drove NJ Gov. Murphy’s recent nuclear bailout and explained how current NJ DEP regulations fail to address climate change.

Today we – very briefly – highlight another huge contradiction between the Gov.’s purported policy goals and his DEP’s actual performance thus far – a performance that makes it impossible to achieve the Gov.’s legislative goals, absent significant policy changes at DEP.

NJ Spotlight recently reported:

Competitive Power Ventures, the owner of a 725-megawatt power plant in Woodbridge Township, is seeking approval to build another natural-gas plant adjacent to its existing unit in the Keasbey section of the community….

The proposal is the fourth natural-gas plant seeking necessary approvals from local and state permitting authorities. But it also raises questions about whether the sector has absorbed the message from the Murphy administration that it wants to have 100 percent clean energy by 2050.

Despite previously reporting on DEP approvals of proposed new gas plants, Spotlight chose to give DEP a pass and merely question whether “the [gas] sector]” has absorbed Gov. Murphy’s message.

The Spotlight story concluded with this “he said” claim (instead of a fact claim):

Environmentalists say the new natural-gas plants conflict with that [Global Warming Response Act] target.

Aside from the meek “Environmentalist say” characterization, and failure to mention the fact that DEP has begun green lighting the construction of almost 2,000 MW of new gas power plants and renewed and issued new permits for major gas pipelines, Spotlight knows that there is really no question that there is a conflict between the proposed new gas plants and Gov. Murphy’s purported goals.

Here’s what Gov.Murphy’s legislation actually says about gas infrastructure:

(7) In order to meet the goals under the “Global Warming Response Act,” P.L.2007, c.112 (C.26:2C-37 et seq.), to reduce greenhouse gas emissions 80 percent by 2050, it will be necessary to significantly reduce emissions from the electric power generation sector. This will require reducing the State’s heavy reliance on natural gas for electric power generation, the primary source of emissions from the electric power generation sector. ~~~ P.L. 2018, c. 16

Did DEP Commissioner McCabe get the memo?

Or Did Murphy not write one?

DEP Invokes A Broad Categorical Secrecy Claim Over DEP Internal Communications

DEP Creates New Secret Category – A “Ghost File” For Withdrawn Permit Applications

Protecting Pipeline Corporations While Keeping The Public In The Dark

The so called “deliberative privilege” under OPRA was designed as a narrow exemption to protect the legitimate “deliberations” of the final decision makers in State agencies in making policy decisions.

It was NOT intended to – and it does not – throw a broad and categorical secrecy blanket over scientific and factual information that is gathered and analyzed and communicated by State agency employees, crucial information that forms the factual basis of those policy decisions. The NJ Supreme Court explains:

OPRA exempts from the definition of “government record” documentary information that constitutes “inter-agency or intra-agency advisory, consultative, or deliberative material.”  …

The deliberative process privilege “permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” [cite] The essence of the privilege is simple, its rationale built on powerful logic. As explained by Justice Reed when introduced for use in the federal courts, the privilege is necessary to ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached.

Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen. It is true that it now submits itself to suit but it must retain privileges for the good of all.

This seems to prefer secrecy to transparency and public disclosure.

However, there are important distinctions that must be made in determining what documents are truly “deliberative” and exempt under OPRA. They involve the nature of the information (e.g. whether it is fact or science, versus advise or opinion) and the level within the agency that the information is generated in relation to the final agency decsion-maker (e.g. the “nexus”, or its role in deliberation and how close it is to the final decision by the Commissioner). The NJ Supreme Court explains:

Because the privilege is a qualified one, a litigant can still obtain the requested materials upon a showing that the need for the materials overrides the government’s interest in confidentiality.  Ibid.  At that point, the burden is on the litigant to demonstrate such a compelling need:  “[I]n all but exceptional cases it is considered against the public interest to compel the government to produce inter-agency advisory opinions.”  Ibid. [cite]. In making the determination whether a litigant has demonstrated an overriding need, a court should consider the following factors:  “(1) the relevance of the evidence;  (2) the availability of other evidence;  (3) the government’s role in the litigation;  and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”  

For example, a DEP field technician’s memo to his supervisor summarizing water quality data is a scientific communication that is far down the management chain and deliberative process for a final permit decision made the Commissioner.

In contrast, a memo or email to the DEP commissioner from an Assistant Commissioner that summarizes the issue, balances public comments, and makes recommendations on a water quality permit decision legitimately could be considered to be “advisory, consultative, and/or deliberative” exempt under OPRA.

The NJ Supreme Court lays out the framework – it is clear that there can be no blanket claims to “deliberative privilege”, and clearly, science and factual information is distinct from consultation and advice, as is the role of the information in the “nexus” of the deliberative process.

In EDUCATION LAW CENTER, On Behalf of Abbott v. Burke Plaintiff Children, Plaintiff-Respondent, v. NEW JERSEY DEPARTMENT OF EDUCATION, Defendant-Appellant, the Court ruled: (emphasis mine)

We hold that a record, which contains or involves factual components, is entitled to deliberative-process protection when it was used in the decision-making process and its disclosure would reveal deliberations that occurred during that process. By that standard, an individual document may not be capable of being determined to be, necessarily, deliberative material, or not, standing alone.   A court must assess such fact-based documents against the backdrop of an agency’s deliberative efforts in order to determine a document’s nexus to that process and its capacity to expose the agency’s deliberative processes.

In my case, DEP has abused OPRA by throwing a broad secrecy blanket over virtually all DEP science, data, and technical analyses conducted by DEP professionals and scientists, regardless of its role in the deliberative process.

DEP staff are “public servants”. They work for the public and virtually everything they do is “on the record” and public, not secret. How could DEP possibly get away with trying to keep all DEP emails on permit reviews secret? For years, in Democratic and Republican Administrations, I have filed OPRA requests and been provided DEP emails regarding permit reviews.

In denying my OPRA, DEP arrogantly failed to even justify their claims about the deliberative process. They imply categorically denied my request.

There is no way that all DEP communications regarding renewal of the SJG permits could all reflect DEP’s  internal, pre-decisional policy recommendations.

Obviously, there is a strong public interest in knowing what DEP professionals say about the application of DEP rules for renewal of permits with respect to the hugely controversial SJG pipeline.

II) Ghost Permit Files – Public Comments Go Down The Memory Hole

DEP also created an entirely new category of OPRA exemption.

I was particularly interested in public comments filed by Princeton Hydro on that permit application, which I was led to believe identified fatal flaws in the permit application that would force DEP to deny the permit.

I suspected that by allowing Transco to withdraw the flawed permit application and re-apply instead of simply denying the application, that DEP was protecting Transco.

I assumed that someone in DEP had a similar view and had put it in writing during the permit application process.

So I filed the following requests for public records:  I boldfaced relevant request denied:

Absent revision to NJ DEP rules and policies, the Murphy administration will lack an enforceable legal basis to deny pipeline and power plant permits

I sense that NJ environmental leaders fighting pipelines and gas power plants quietly are relying on a regulatory strategy adopted by NY Gov. Cuomo’s State Department of Environmental Conservation (DEC) to deny State Water Quality Certificates (WQC) required by the federal Clean Water Act.

I also suspect that NJ Governor Murphy’s Attorney General and DEP Commissioner are considering this NY DEC strategy as well.

As NJ Spotlight reported:

Not only does FERC ignore climate-change implications, the Attorney General argued the agency fails to consider the full range of environmental impacts. “As the Attorney General for a state impacted by natural gas pipeline approvals, I know that FERC needs to be much more careful in its overall approach to pipelines,’’ he said.

New Jersey Department of Environmental Protection Commissioner Catherine McCabe agreed, saying “now is the time for the agency to analyze and reduce environmental harms. “Reducing and responding to climate change is a priority for the DEP,’’ McCabe said, “and there is an urgent need for FERC to improve its review process to account for all environmental harms.’’

That Murphy administration attack on FERC’s environmental review as “fatally flawed” echoes exactly the argument made by NY DEC as its rationale for denying State WQC to a recent pipeline.

Here’s NY DEC denial in a petition to FERC:

I have long advocated this strategic approach to using State WQC powers to kill pipelines, but my technical regulatory recommendations are significantly different than the way NY DEC has done things. Essentially, this is because NY DEC State environmental laws and regulations are very different from NJ DEP’s.

This is a complex distinction, but it is very important because it will determine the outcomes. Let me try to explain.

Most recently, NY DEC declined to renew a State air quality permit for the Competitive Power Ventures (CPV) proposed 680 MW gas plant in nearby Orange County, NY (see this for that complicated story).

The effect of that NY DEC state air permit denial is being exaggerated as a “huge win” that killed the project.  Actually, all NY DEC did was force the project to apply for an EPA federal Title V air quality permit. Trump administration EPA approval of that permit is virtually certain, so NY DEC merely delayed the operation of the CPV plant, which is completely constructed. (Google “Repeal of Obama Clean Power Plan”)

But more importantly, last year, the NY DEC also denied a State Water Quality Certificate (WQC) for a 7.8 mile gas pipeline to feed the CPV plant, known “Valley Lateral Project” or as the Millennium Pipeline (see this for DEC denial document).

I just looked into that NY DEC 2017 denial of a WQC for the Millennium pipeline to the CPV gas plant.

NY DEC relied on 2 factors in NY State regulations to deny the Water Quality Certificate for the pipeline to the CPV power plant:

1) a US DC Circuit Court decision in a case won by the Sierra Club. That case turned on the failure by FERC to consider greenhouse gas emissions during the NEPA environmental review process. In the pipeline WQC denial, citing the Sierra Club decision, the NY DEC claimed that FERC had failed to consider GHG emissions during NEPA review:

The “lack of complete environmental review” was based on failure to consider GHG emissions. The “change in law” was the DC Circuit case that found FERC failure to consider GHG emissions.

2) NY DEC then relied on NYS DEC regulations that provide factors to deny permits – one of them is a change in law. NY DEC cited the Sierra  FERC case as a change in law.

So, Sierra Club is a national leader on the regulatory aspects of pipelines and Sierra’s anti-pipeline strategy relies heavily on the DC Circuit court decision strategically.

The focus of that strategy is on demonstrating that FERC environmental reviews are fatally flawed and then using State permit regulations to use FERC’s flaws to deny State permits.

Thus, we can see how NJ  Sierra Club must be pleased by the recent NJ DEP and AG criticisms of FERC reported by NJ Spotlight above.

Now, here’s how I see the fatal flaw in the NJ strategy and the huge upcoming disappointment.

A few weeks ago, NJ DEP Commissioner and NJ Attorney General issued a joint press release blasting FERC for a fatally flawed environmental review process. That tactic is virtually identical to NY DEC criticism of FERC. I’m almost certain that  NJ ENGO’s perceived that as a step in following NY and laying the foundation to deny pending NJ pipeline permits (power plants are a different issue – as we’ve written, current NJ air permit regulations do not consider GHG emissions in terms of setting emission limits or as a basis to deny or condition a permit.).

Based on the NJ DEP/AG press release, I wrote a post criticizing them for hypocrisy, noting that NJ DEP State environmental reviews and permit regulations don’t consider GHG emissions, See:

• NJ Environmental Regulations Ignore Climate Change

So, I assume that NJ Sierra Club and NJ ENGO’s view my analysis as undermining their strategy.

But here is where it gets really tricky and why the NY regulatory strategy will fail in NJ.

NY DEC was able to make the argument that the FERC NEPA review was fatally flawed only because NY has a State NEPA (i.e. SEQRA). But despite its own State law, the NY DEC relied on FERC NEPA review to pre-empt or replace the NY SEQRA review process.

NY DEC then argued that the fatally flawed FERC review is a reason for denial under NY State DEC WQC permit rules.

But that NY DEC strategy won’t work in NJ for four reasons, because:

1) NJ does not have a State SEQRA.

Instead, NJ DEP conducts its own State “environmental review” in two ways: a) as a participant in the FERC NEPA process and b) under various piecemeal State permit regulations.

So, NJ can’t argue, like NY DEC did,  that FERC’s flawed NEPA review is fatal because FERC did not pre-empt or replace NJ DEP reviews and because their own NJ DEP reviews are fatally flawed too. NJ DEP does not they rely on FERC to supplant State environmental reviews.

2) NJ has its own EPA federally delegated State wetlands program.

NJ DEP relies on the NJ State wetlands program to satisfy the WQC review process. The DEP wetland review does not rely on FERC and does not have the specific basis for permit denials that NY DEC relied on.

So NJ can’t argue that fatally flawed FERC reviews are grounds for State WQC and permit denials.

3) the NJ WQC rules, which are codified in the freshwater wetlands rules, as NJ DEP interprets them, do not provide ANY basis for denial of a WQC.

The NJ DEP WQC rules allow “BMP’s” and “avoidance, minimization and mitigation” to satisfy compliance with Water Quality Standards (that’s because DEP relies on the NJ State freshwater wetlands act regulatory scheme to satisfy WQC requirements).

Additionally, NY DEC denied the WQC on the basis the stream disturbance from the proposed pipeline would cause temporary violations of temperature and sediment water quality standards. But NJ DEP rules explicitly authorize “temporary” violations of water quality standards.

4. The Sierra Club DC Circuit decision does not apply to NJ.

NY DEC relied on that DC Circuit Court decision as a “change in law”. Under NY DEC regulations, NY DEC may deny a permit if there is a “change in law”.

NJ DEP rules also allow DEP to deny a permit due to change in law.

But for NJ, because NJ DEP relies on State law and not FERC, there is no change in STATE law.  There is no change in law in NJ.

NJ DEP must not simply follow NY DEC, but must instead revise its own State regulations and permit review processes to address the “fatal flaws” they note in FERC’s reviews.

This would require revisions to both GHG emissions and the WQC review processes.

Absent such revision of NJ DEP rules and policies, the Murphy administration will lack an enforceable legal basis to deny pipeline permits.

I haven’t posted photos in awhile On The Road, mainly because I’m spending more time in the woods and mountains and am rarely in town near an internet connection.

I think my last post was from the Canadian shores of Lake Superior.

The skeeters and deer flies of northern Minnesota were intense and really bothered the poor dog. We came down the shore from Canada, through Superior National Forest and Boundary Waters and stopped in lovely port town of Grand Marais for a few days, then headed northwest through Ely and International Falls along the northern border.

So, as I sit this morning in a lovely northern Puget sound town Laundromat, here’s a summer update and some shots as we traveled west from there.

California is a disaster, but the wildfires aren’t as bad in the northern rockies and pacific northwest as they were last year, but the heat has been intense and the conditions are extremely dry. Sometimes it feels like an oven, it smells like the pine duff is smoldering, and that the forest is about to burst into flame.

Along the Rainy River, border between Minnesota and Canada, west of International Falls

NorthDakota was flat and hot and we went across as fast as possible.

Arriving in Montana, the streams and rivers were flowing high and cold, due to a record snowfall season in parts of Montana, Idaho, and Wyoming.

Crazy mountains, western Montana

Big Sky country

We spent a few weeks in Absaroka – Beartooth Wilderness – truly spectacular, particularly camping along the clear and cold Yellowstone, Boulder and West Boulder Rivers:

Absaroka – Beartooth wilderness

Boie scratches an itch along the Yellowstone River

site along west boulder river

As we headed west towards Idaho, we stopped at Natural Bridge – a geological formation where the Boulder river has eroded a hole that makes it look like the river disappears into the ground. Here’s what it looks like on the outfall end. We scrambled down a makeshift “trail” – extremely steep and difficult, especially up and out but we got a rainbow!

Murphy Administration Retains Christie Administration Pro-Energy Industry Policy

No Public Involvement In “By Invitation Only” Industry Dominated Stakeholders

McCabe claims 71 industry reps to Zero public is a “broad range of stakeholders”

As I recently wrote, NJ DEP does not consider the impacts from the emission of greenhouse gases or climate change during environmental reviews and permit approvals of, among other things, major fossil infrastructure including oil and gas pipelines and compressor stations.

But flaws in DEP regulations and review processes are perhaps even worse than that.

Specifically, DEP’s own documents reveal that representatives of the oil and gas industries jointly wrote a major DEP pipeline regulatory review guidance document designed to protect public health, safety, and the environment.

Several of the gas companies seeking DEP approvals literally wrote their own regulatory requirements.

Industry representatives did that without any public involvement or awareness, during an industry dominated “by invitation only” Stakeholder process begun and conducted by the Christie administration under Commissioner Martin’s “Transformation” initiative.

Take a look at all the technical guidance documents written, and that list is just for the site remediation program.

Take a look at the industry dominated groups that wrote them. I counted 71 representatives of regulated industry or paid industry consultants – and not one public member, environmental group member, local government representative, or independent scientific or academic expert.

That Sham Stakeholder process is still part of the Murphy Administration’s DEP and still part of the DEP website (see this link for documents). Note that it is prominently displayed on the DEP website, just under the photo of Commissioner McCabe.

In fact, the McCabe DEP has expressly supported that Sham – the DEP website states (my emphasis):

Site Remediation Program
Stakeholder Process

Acting Commissioner McCabe and Assistant Commissioner Pedersen believe that working with a broad range of stakeholders is essential to continuing the growth and success of the Licensed Site Remediation Professional (LSRP) program. To this end, the Department continues to implement an extensive stakeholder process to address general program issues, rules, and guidance. 

How can 71 industry representatives and zero public, environmental or academic represeantives possibly constitute a “broad range of stakeholders”? Echoes of George Orwell!

[Also recall that “Candide” McCabe praised this industry dominated, privatized site remediation program with this fact free spin: from a McCabe statement)

Contaminated sites are getting cleaned up thoroughly and in a timely manner.

So, several weeks ago, I reached out to Tanya Oznowich, the DEP Stakeholder contact to ask specifically if current DEP Commissioner McCabe had provided any policy guidance regarding revisions to the Christie DEP initiative, including: 1. whether  the “by invitation only” practice would continue; 2. whether additional public stakeholders would be named to the industry dominated groups; and 3. whether the current  and “recurring meetings” would continue; and 4. whether McCabe would continue to implement it.

In a June 5, 2018 email, I wrote:

Has Acting Commissioner McCabe provided guidance on the Stakeholder process?

Will it continue? Will the “by invitation only” policy continue? Are there new issue groups being formed? Will all current Stakeholder be retained? Will new Stakeholders be named?

Shortly thereafter, in a June 5, 2018 email, Larry Hajna, a DEP press office flack replied:

Bill – I’m a bit backed up right now but will look into this.

Hajna never got back to me, nor did Tanya Oznowich.

So either McCabe is continuing the Christie/Martin Stakeholder policy and practice or she is avoiding the issue.

I do know that McCabe is secretly meeting with various Stakeholders on an ad hoc basis, however, and that no records are being maintained regarding these meetings. So, in some ways, this is actually worse than Christie/Martin structured and policy driven Stakeholder rollback practices. At least public records of those meetings were maintained and meeting participants were disclosed.

McCabe doesn’t disclose who she is meeting with or what she is meeting about – and McCabe even denied my OPRA request that she disclose these meetings.

Here’s how I came across the fact that the pipeline review guidance was co-written by oil and gas industry representatives.

I recently filed an Open Public Records Act (OPRA) request for public documents related to NJ DEP’s environmental review of the proposed Transco pipeline (known as the “Northeast Supply and Enhancement Project”) and came across the following reference to a “Linear Construction Technical Guidance” document DEP cited in a January 10, 2017 letter to Transco and FERC:

A review of the Linear Construction Technical Guidance document revealed the following:

Here is how DEP describes the use of the pipeline review document:

Here is how DEP describes the 71-0 industry dominated stakeholder process (note that Transco had two representatives involved):