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Williams Blows Off USFWS Concerns Over Breeding Migratory Birds

Christie DEP failing to enforce stream buffer, clean water, and wetlands standards

Activists present at site since Monday – “Occupy” actions on horizon

Activists have been present at the site almost continuously since Monday morning – public awareness and opposition are building. There is a piece of land adjacent to the compressor station site that is owned by Chesterfield township that would make a great place to Occupy.

Late yesterday afternoon (3/29/17) Williams began cutting trees at their Chesterfield compressor station site, over the objections of conservationists and US Fish and Wildlife Service biologists.

Despite expert sightings of breeding migratory birds, the company defied USFWS recommendations and proceeded at risk – meaning that should such habitat be discovered after the fact, they will face a slap on the risk by USFWS for “incidental take” – a minor cost of doing business.

[Update: Burlington County Times reports that FERC was involved – more FERC-ing off by the misguided Rethink NJ folks who parachuted in at the last minute and waste local resources. How many times do they have to fail before people stop listening to them?]

Or, as I suggested, a Hail Mary diversion.  Despite Williams blowing off US FWS, quietly behind the scenes, some are wasting resources seeking NJ DEP intervention on the same issue, even worse, via confidential communications with DEP Commissioner Martin. Tactically, this is just as bad as the FERC-ing off I’ve criticized.

Meanwhile, the cutting of trees is occurring within about 10 feet of a stream that its a tributary to Suckers Run – that issue is being ignored and could constitute a violation of NJ DEP riparian zone buffer and surface water quality standards. (Hint: read how NY State DEC denied a Clean Water Act certification as a result of similar adverse water quality impacts. Maybe Tom Gilbert of Rethink NJ, consultant Princeton Hydro, and local lawyers could read it and then act on it? Why are these killer regulatory issues being ignored, when they have defeated pipelines in neighboring states?)

I was at the site yesterday when the cutting began, and noticed that the company began to comply (but not completely) with soil erosion and sediment control requirements by installing a small section of stone and fabric, see:

I went back to the site this morning and walked along the hedgerow and it sure looked like they were cutting trees and vegetation in forested wetlands – I don’t know what disturbance the wetlands permits allowed, but that surely needs to be looked into from a compliance and enforcement perspective. Maybe these regulated features were not mapped?

I am calling DEP now about both the riparian zone and wetlands issues.

Activists have been present at the site continuously since Monday morning – opposition is building and there is a piece of land adjacent to the compressor station site that is owned by Chesterfield township that would make a great place to Occupy.

Just a suggestion.

[Update – I stopped by the site again about 4:30 pm and came upon another example that illustrates a total disregard for public safety by Williams.

A huge machine was cutting down trees in the county roadway right-of-way. Branches and chunks of trees were falling onto the shoulder and roadway. Cars were slowing down and swerving over the double line at 45+ mph speed zone.

But there were no traffic safety measures in place: no warning sign, no safety cones, no flag man, nothing.

We convinced the Chesterfield police to shut it down on that basis. ~~~ end update.]

US Coal Exports Doubled Under Obama

Another Right Wing – Republican – Trump Big Lie

There many errors, omissions and distortions in the flood of news coverage of the Trump Executive Order seeking rollback of the Obama Administration’s climate change programs.

Almost all of that coverage is based on speculation by various “experts”. Very little of the coverage relies on actual data or science of any sort.

Virtually all of the coverage greatly minimizes the real world energy, environmental and climate impacts of Trump’s policy, while greatly exaggerating both the Obama climate policy and the ability of so called free market forces to reduce or even offset the damage of the Trump policy.

With all those general conclusions in mind, and because Trump appeared with coal miners, the first issue I’ll briefly mention is the false premise of an Obama “war on coal” and the issue of coal production and coal exports (see US Energy Information Administration analysis of coal export data).

About 10% of US coal production is exported.

As you can see from the above chart, from 2009 – 2012, under Obama, coal exports DOUBLED, from 60 to 120 million tons per year. Since 2012, they’ve declined to 2009 levels.

I have not seen these coal export data mentioned in any news report.

The greenhouse gas emissions from those coal exports are not considered in the US emissions inventory.

Worse, the Trump order is designed to make sure that the public’s ability to understand the impacts and climate effects of the Trump policy and fossil fuels are masked. (see especially Section 3)

Because the Trump Order will eliminate federal regulatory restrictions of coal production and export, exports are likely to increase.

The US EIA data on coal production are more complex, but despite reductions during the Obama administration, they remain huge and are projected to increase slightly (see EIA data) 

The chart on the left shows almost 1 for 1 replacement of coal by natural gas. The chart of the right shows the corresponding decline in US production, with an upward forecast.

Regardless, none of this data can be described as reflecting  policy of a “war on coal”.

To their credit, the media have done a good job in exposing Trump’s Big Lie that he can restore coal mining jobs, which have been declining for decades as a result of technology and lower cost natural gas.

For a superb historical and cultural analysis of the coal industry’s rape of the landscape and destruction of communities of Appalachia, read the 1963 classic “Night Comes to the Cumberlands” by Henry Caudill.

More to follow.

Williams/Transco Letting their FERC Flag Fly

Latest Diversion Is a Hail Mary For The Birds

Clock running on legal appeal of DEP permits

local governments are spending a ton of money on lawyers, so they need to make it look like they’re doing something – that’s truly a shame, especially at this critical time when they should be drafting their briefs **to challenge the DEP permits. The clock is ticking on those appeal deadlines!!!

See Correction below

Yesterday (3/27/17) Williams Transco, the Oklahoma based gas company building the Garden State Expansion Project, a compressor station and NJ Natural Gas Southern Reliability link pipeline, started off construction on the wrong foot.

They ran into aggressive residents and opponents and made huge PR gaffs and regulatory compliance mistakes.

I got a request from Agnes Marsala of People Over Pipeline to come to the site – arrived just before 10, no one was there at the time (was later told that folks were there at 6:30 am!, including bird experts.)Except 2 lame Williams security goons, who tried to run me off:

It was raining hard and muddy, so I immediately noticed lack of compliance with soil erosion and sediment control and DEP permit requirements. Spoke with Williams’ Chief Inspector on the site Roger Salmi (cell: 612-518-0983). He stonewalled and told me to call press officer Christopher Stockton (713-215-2010 (W) 713-562-2939 (cell). Salmi’s assistant later told me that he would install required stone and other soil erosion control measures before heavy equipment is brought on site.

So I contacted Burlington County SCS (609-267-7410) and the DEP Hotline (1-877-WARN DEP) to report violations. A Burclo inspector later went to the site – I was told that he warned Williams but did not issue violations. It will probably take a week for DEP to get someone off their ass and out of Trenton.

Later spoke with Williams lawyer on site (a Jersey girl, she claims) and advised her that site was not in compliance. Shorlty thereafter, Williams’ broke out a broom to sweep up the mud they were tracking off site! The man with the broom yelled at me that I didn’t have his permission to photograph! Take a look! Hahahaha!

If Williams can’t comply and get the easy stuff right, that does not inspire confidence that they will do the important stuff right – the same goes for the government oversight efforts. Williams needs to be told – at the outset – that this is not Texas or Oklahoma, arrogance is not acceptable to the community, and that they will be strictly regulated and monitored.

Cars parked on site had out of state plates – except for the Jersey girl attorney.

Since no construction was going on, I guess they wanted to let their FERC flag fly and make it clear that these are the crew our local pipe fitters and NJ laborers will be working for.

Shortly after 10, a few more POP member arrived to observe – I told one woman that the parked cars and trucks were violating NJ’s idling law and she called the Chesterfield Police to report that violation – Chesterfield cops arrived and gave them a warning:

Later, Chesterfield Councilwoman Rita Romeau and Patti Cronheim of Rethink Energy NJ arrived and were ebullient.

They gave conflicting stories about birds.

The initial story I got from Rita R. was that a stay was issued (presumably by a court). Then I heard that NJ DEP Division of Fish and Wildlife issued a stop work.

Then Patti Cronheim from Rethink NJ arrived and told folks that bird experts had discovered habitat for owl or raptors (unclear what species and if this was done on Friday or this morning) and conveyed that info to US Fish and Wildlife Service. According to Patti, USFWS then got Transco to agree to a voluntary stop work and agreement to conduct a bird breeding survey.

I found this all very hard to believe – and requested but was not provided any documentation so I could write about it. That failure to provide even an email about what was going on only heightened my skepticism.

Well today, Dave Levinsky writes “the story” (I put “story in quotes for a reason) in the Burlington County Times:

• Nesting owls, raptors and songbirds could delay compressor station work

Although Oklahoma-based utility company Williams Transco has received approval from the Federal Energy Regulatory Commission to begin work at the site of the proposed compressor station off Bordentown-Chesterfield Road, the possible presence of nesting and courting Cooper’s hawks, screech owls, red-tailed hawks and other migratory songbirds may cause a delay.

Both Chesterfield and Bordentown Township have asked the New Jersey Department of Environmental Protection and the FERC to order a stay on any work at the site, including tree clearing, until a survey is completed to determine if nesting birds are present.

Williams Transco spokesman Christopher Stockton said the company was aware of the towns’ claims and taking steps to re-survey the site before clearing any trees.

“We have not started any tree clearing yet. At this point, we are still moving construction equipment at the site,” he said in an email. “We do plan to re-survey the area prior to any tree removal.”

If birds are present, it could create more delays for the compressor station project, called the Garden State Expansion, which has dragged on for the better part of two years.

Like I said in the sub-headline: that’s a real Hail Mary. A last ditch effort to block construction based on birds also tends, politically, to undermine the credibility of the POP and other pipeline opponents who are focused on air, water and safety issues, by opening them up to longstanding stereotyped criticism of environmentalists, e.g.: that they care more for critters than people and jobs. Focus on birds also opens up legitimate criticism that they are not focused on real community safety and environmental issues.

But this is not some hopeful last minute effort – something insidious is going on.

This is just the latest episode in the pattern of tactics by Rethink Energy NJ. Rethink is heavily invested in the FERC process and they have repeatedly engaged in diversions and sought to change the issue. Their diversions have consistently undermined the efforts of the local group People Over Pipelines.

The diversions consistently seek to shift the focus from NJ DEP and water resource regulatory issues to FERC, local or county governments, and FERC issues related to economics and private property rights.

Rethink wants to change the issue and divert focus for at least three reasons:

1) they praise DEP, they keep their powder dry, and they seek to shield DEP from criticism, under the false assumption that an “inside” friendly game with DEP will result in DEP denying permits on their priority project, the PennEast pipeline. They also fear retaliation from Gov. Christie or DEP Commissioner Martin, who they need as friends to secure funding for land preservation deals (the primary organizational mission of NJCF, the parent of Rethink);

2) the don’t want their members and the public to understand that their almost exclusive FERC strategy is mis-targeted, fatally flawed, and can not win.

3) The don’t want aggressive local activist groups and radicals to control the strategy, tactics and message and thus gain political power and resources.

In fact, Rethink was created and funded by corporate and foundation money as the politically safe alternative that would not make waves or threaten powerful economic interests, or step on corporate or political toes. Rethink has spent hundreds of thousands of dollars on ineffective corporate PR, economic studies, and FERC NEPA intervention, while virtually ignoring NJ DEP and State regulatory issues.

In the end, from the corporate perspective, Rethink is the “reasonable” environmental group that will compromise and cut the deal in the end – all while undermining and keeping the radicals from gaining media attention or real political power. This is the way corporations like PSEG do their work in NJ.

Given prior deals, my sense is I that a deal would be likely to include: 1) small changes in the pipeline route to avoid preserved lands lands owned by NJCF or by Rethink’s wealthy elite members; 2) land donations as mitigation; and 3) “mitigation” funding to ReThink and fellow conservation groups.

Thankfully, Dave Levinsky is a very good reporter and can sense this dynamic – If not to divert attention from DEP and FERC rubber stamps, why else would Tom Gilbert of Rethink suddenly parachute into Chesterfield, just in the wake of DEP and FERC final approvals?

Here how Levinsky subtly alludes to that:

The compressor station and pipeline have received approvals from the FERC, which oversees infrastructure related to interstate pipelines, and the New Jersey Board of Public Utilities, which oversees intrastate pipelines. The DEP recently issued required water permits for the station and pipeline.

Having almost exclusively focused on FERC and not even tried to hold DEP accountable, of course Gilbert and the Rethink crew want to try a Hail Mary on an esoteric bird issue.

We’ll keep you posted – but I wouldn’t hold my breath waiting from any bird issue to block construction.

End Note: And local governments are spending a ton of money on lawyers, so they need to make it look like they’re doing something – that’s truly a shame,  especially at this critical time when they should be drafting their briefs **to challenge the DEP permits. The clock is ticking on those appeal deadlines!!!

** Correction – There is no administrative appeal to OAL. I’ve been told that the federal Natural Gas Act Natural Gas Act, 15 U.S.C.A. Sec. 717r(d)(1)mandates that appeals of State permits be filed in federal court. This is astounding, as the DEP wetlands permits and 401 WQC are issued pursuant to State law and EPA delegated Clean Water Act powers that federal courts have found are State CWA 401 WQC and WQS are NOT preempted by the NGA.

Residents Feel Betrayed By Christie DEP

A DEP Green Light – FERC and Pinelands Commission Rubber Stamps Expected Soon

On Friday (3/24/17) a diverse group of over 50 residents of Bordentown, Chesterfield, North Hanover and surrounding towns protested the Christie DEP issuance of the “dewatering permit” to the Transco compressor station in Chesterfield on Rt. 528. Read David Levinsky’s story in the Burlington County Times:

• NJ DEP awards permits for natural gas compressor station in Chesterfield

[Clarification: FERC issued a Notice to Proceed at the compressor station site last Friday. The Pinelands Commission has yet to rubber stamp the related SRL pipeline.]

Residents felt betrayed by DEP – they expected DEP to protect them. Several residents accused DEP of protecting corporations and gas companies, not communities and the environment. “DEP Didn’t Do Their Job – Shame, Shame, Shame!”

The devil is always in the details, so reading the fine print of the DEP “dewatering permit” is quite revealing. And damning.

Public comments opposing the proposed permit claimed that the application was riddled with very basic technical errors, including failure to even identify the number of wells nearby that could be negatively impacted by the dewatering and failure to characterize basic groundwater and surface water conditions.

Reading the fine print reveals that DEP admitted that they were right.

DEP included a permit condition that basically acknowledges that public concerns about the potential impacts of the 70 million gallon dewatering operation could harm their drinking water and agricultural wells:

Putting the cart before the horse and trying to cover their asses for a deficient permit application, DEP recently quietly required the installation of two groundwater monitoring wells. DEP did this AFTER the permit application was submitted and severely criticized by the public at public hearings and in written comments:

Like the sign said: Shame, Shame, Shame on DEP!

End Note: DEP is not the only group that deserves criticism.

The Friday protest was sponsored by the local group People Over Pipelines and the purpose was to protest DEP’s issuance of the “dewatering” permit. Accordingly, the focus was on water and criticism of the DEP.

But, following a consistent pattern of undermining local efforts, the corporate and foundation funded group Rethink Energy NJ – a group whose primary objectives lie elsewhere in opposing the PennEast pipeline and whose singular focus has been at the federal level on FERC and who has praised the Christie DEP – attended and came prepared with signs obviously intended to change the focus and divert criticism of DEP.

Take a look – and tell me what an air plume over the nearby elementary school (they seem to have ignored the nearby church daycare center) has to do with a DEP dewatering permit and ask your self why that issue was not raised during the air permit process at DEP (a permit and engineering based review that does not even allow consideration of such plume dispersion and human exposure considerations!!!!!!!)

The reality is actually worse than a mere attempt to divert the focus from the Dewatering permit and avoid criticism of DEP –

Rethink Energy NJ has other interests – at other  compressor station sites in NJ – that are focused on the air plume issues – and they used the People Over Pipeline protest to push that agenda. Shameful.

Gorsuch is a fundamental threat to the “New Deal Administrative State”

Gorsuch hides corporate deregulatory interests behind undocumented immigrants

“From the bottom of my heart”

Why can’t I free your doubtful mind
And melt your cold, cold heart. ~~~ Cold, Cold Heart (Nora Jones)

[Update below]

President Trump’s Supreme Court nominee Neil Gorsuch misled the Senate Judiciary Committee in a way that was as shameful as it was brazen. Let me explain, based on the transcript and an amazing exchange with Senator Feinstein.

I’ve previously written about how President Trump’s Supreme Court nominee Neil Gorsuch’s views on administrative law would threaten foundational principles of the entire edifice of what has been attacked by Trump strategist Steven Bannon as the post New Deal “administrative state”.

The effectiveness and enforceability of virtually all environmental and public health protection laws passed by Congress are impacted by this legal principle.

The legal issue revolves around how executive branch agencies adopt regulations to implement federal law passed by Congress and how courts review those regulations.

To condense a complex legal debate, Judge Gorsuch has questioned how courts should review executive branch agency regulations. He views the current legal doctrine as usurping Congressional legislative and judicial power.

Gorsuch wrote that the prevailing legal doctrine – known as “Chevron deference”:

permit(s) executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. (see Judge Gorsuch’s concurrence at page 15).

Gorsuch is fixated on “power” – he is not some neutral objective “umpire calling balls and strikes”.

There is a real possibility that a Gorsuch influenced Supreme Court could severely dismantle the New Deal and all environmental protections via placing restrictions  on administrative regulatory agencies and making it easier for corporate interests to challenge and dismantle regulatory protections.

Make no mistake – Gorsuch’s views are radical and a serious threat to modern government.

If adopted by a conservative Supreme Court – threaten the foundations of the New Deal and all federal environmental and and public health protections.

Gorsuch faced a question from Senator Feinstein on his “Chevron deference” analysis written in his Gutierrez opinion on day 2 of the Senate Judiciary Committee’s  confirmation hearing. Feinstein asked about “Chevron” following a line of questions of labor rights and whether Gorsuch would protect the “little guy”.

After Gorsuch insisted he’s a “fair judge” – he emphasized “from the bottom of my heart” – Feinstein asked: (watch and listen at time 1:01:20)

Let’s talk Chevron. That’s been used thousands of times….[Feinstein then discusses legislation establishing CAFE fuel standards and the need for experts to set regulatory standards]…. Here’s the point:… what we said in the legislation was that science would prevail…. What’s wrong with that? How else could we have done it?

Gorsuch replied:

I’m not aware of anything wrong with that Senator. I’ve never suggested otherwise.

That denial is false and misleading. So, Feinstein disagrees and responds:

But what you said is that Congress could not legislate by leaving some of the rules up to the scientists or other professionals in the departments.

Gorsuch then continues to mislead:

I appreciate the opportunity to correct this misunderstanding. The case I think you are referring to is Gutierrez. It involved an undocumented immigrant to this country.  …. [Gorsuch outlines the facts of the case] … The Board of Immigration Appeals says, in their infinite wisdom, that our interpretation was wrong. Chevron. You have to undo your precedent that this man relied upon. And he now had to wait outside the country not just 10 years, but 13 or 14. It took them so long to make up their mind.  Senator, that reminded me of, you know, when Charlie Brown is going in to kick the ball and Lucy picks it up at the last minute….. When an Executive bureaucracy can overturn a judicial precedent without an act of Congress. That’s what the case was about.

Where to begin with this bullshit?

Gorsuch shamelessly claims to have been concerned with a 3-4 year delay in allowing an immigrant to enter the country. But Gorsuch ignored and no one mentioned the actual text of his opinion, which is concerned about “power”.

Senator Feinstein, to her credit, immediately called him out for trying to suggest that he had “not suggested otherwise” with respect to her example of federal rule making that relies on Courts deferring to experts and scientists.

The Gorsuch reply was completely misleading and – by creating the apparance that the case was about protecting undocumented immigrants – and it was shameful. Right wingers do this all the time, i.e. they find sympathetic sounding plaintiffs (e.g. “Citizens United”, “Hobby Lobby”) to cover for corporate attacks on government protections.

Gorsuch made it appear that his opinion reflected an individual fact and case specific dispute and that it protected an undocumented immigrant from an arbitrary and repressive government agency. But in reality, Gorsuch wrote an attack on a broad and long standing presidential legal doctrine with widespread implications far beyond the scope of the individual immigration case before him. So much for judicial restraint. Gorsuch also violated his so called respect for and reliance on “precedent”.

The “Charlie Brown” analogy was totally misleading as well. A momespun homily to mask the exercise of raw power.

That is total bullshit.

Gorush wrote broadly – not about the facts of the case – and attacked a legal doctrine. He was engaging in judicial activism (right wing version) and went way beyond an individual case and controversy and the facts and law of that case. This is what he wrote: (see Judge Gorsuch’s concurrence at page 15).

Gorsuch was really concerned about raw power – the “elephant” and the “behemoth” of federal regulatory agencies – not Charlie Brown or undocumented immigrant interests.

Corporate interests are seeking to use Gorscuh’s legal views to dismantle government regulation.

That’s why groups like the Federalist Society and the Heritage Foundation and the Koch Brothers recruited and support the Gorsuch nomination.

His views could strip federal regulatory agencies of powers to implement and enforce federal laws and lead to a dismantling of New Deal and environmental and public health protections.

He must be stopped, at all costs.

[Update: 5/8/19 – Trump’s own lawyer confirms everything I claimed below:

McGahn said a big part of his job as White House counsel was to deregulate and rein in the “administrative state.”

• He said he did that by writing deregulatory executive orders and picking judicial nominees who wanted to limit the power of federal agencies.

• He talked about Trump nominating judges who agree that the courts have given too much flexibility to federal agencies to interpret laws and enforce regulations.

• McGahn said they looked for potential judges who wanted to reconsider the “Chevron deference,” which requires the courts to defer to federal agencies’ “reasonable” interpretations of ambiguous laws.

• McGahn said Trump’s judges will spend 30–40 years unwinding the power of executive agencies.  ~~~ end update]