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This Decision Is Another Example Of Radical Corporate Strategy To “Dismantle The Administrative State”

Court Rules That EPA’s “Disparate Impact” And “Cumulative Impact” EJ Reviews Not Authorized By Congress

Biden EPA Admits That EJ Policy Is A Voluntary Toothless Sham

“Disproportionate Impact” Versus “Discriminatory Intent”

Environmental and social justice activists are calling a federal Court decision that blocked EPA’s environmental justice program in Louisiana’s “cancer alley” a disaster: (Bloomberg Law)

“The court’s decision to issue this injunction is bad enough, but what’s worse is that instead of fixing the discriminatory permitting programs that have created sacrifice zones like Cancer Alley, Louisiana is fighting tooth and nail to keep them in place,” Sam Sankar, Earthjustice’s senior vice president of programs, said in a statement.

The Court ruled that EPA’s “disparate impact” and “cumulative impact” regulatory review requirements – the scientific foundations of the EPA’s environmental justice program – were not specifically authorized by Congress. The Court invoked the “Major Questions” doctrine to block EPA’s enforcement of its Environmental Justice program.

This decision is a perfect example of exactly what I warned about, just the day before that decision came down, including the case I cited. I wrote:

The Supreme Court is poised to reverse a longstanding but little understood judicial doctrine known as “Chevron deference”, a doctrine that interprets and applies the Constitution’s fundamental structure and forms the backbone of administrative law and virtually all government regulation of corporate power and interventions in market decisions. (They already set the stage last year by striking down an EPA climate regulation in West Virginia v. EPA, which included a new radical “Major Questions” doctrine. More about all that later).

Here are excerpts from the Court’s opinion with respect the the Major Questions Doctrine (@page 67 – emphasis mine):

The State maintains that [EPA] regulations also fail under the major questions doctrine. The major questions doctrine demands “‘clear congressional authorization’ for the power [the government] claims” when the question posed is a “major” one. West Virginia v. EPA (2022)…

The State argues that the issue of Defendants’ authority to impose disparate-impact mandates (1) is a “matter of great political significance,” (2) seeks to regulate a significant portion of the American economy,” and (3) “intrud[es] into an area that is the particular domain of state law.” West Virginia, at 2620-21 (Gorsuch, J., concurring) ...

“The Court agrees with the State that the major questions doctrine is applicable here as to the imposition of disparate impact mandates under Title VI and as such, demands clear congressional authorization. Here, the issue is whether Congress in fact meant to confer the power these agencies have asserted—to impose disparate impact liability under Title VI. The Court finds that this is an extraordinary case, of economic and political significance. Defendants have constructed Title VI to allow it to regulate beyond the Statute’s plain text and by doing go, invade the purview of the State’s domain. Common sense dictates otherwise. Accordingly, Defendants motion to dismiss under Federal Rule of Civil Procedures 12(b)(6) and Rule 56 will be denied.

This decision, if appealed by the Biden Department Of Justice, will likely be welcomed and accepted by the US Supreme Court as part of their radical strategy to “dismantle the administrative state”.

I strongly doubt that the Biden administration will appeal this decision, but not because they are concerned about it going to the Supreme Court to set a new precedent on the Major Questions doctrine that I fear.

The Biden people won’t appeal because they don’t support their own Environmental Justice policy.

First of all, the Biden EPA withdrew the threatened enforcement action against Louisiana last June: (@ page 8)

Also on June 27, 2023, OECRC issued a letter to LDH administratively closing EPA Complaint No. 02-22-R6, stating that “[a]s a result of its administrative closure, EPA will not initiate under Title VI or other civil rights law any further action, enforcement or otherwise, in response to this Complaint.”

Second, the legal arguments by the Biden DoJ reveal that the EJ policy is toothless and all political rhetoric. The Court’s decision is full of examples of where the Biden EPA admits that they withdrew the enforcement case against Louisiana and that the EPA “disproportionate impact” and “cumulative impact” reviews are voluntary and toothless:

• “[EPA] contend that the closed complaints disavow these documents as binding because the State faced no obligation to obey the complained-of “extra regulatory requirements.” (p. 52)

• “[EPA] argue[s] that EPA guidance documents are not binding rules, regulations, or orders, and nothing in those guidance documents equate to a binding requirement on the State.” (p. 52-53)

• “Defendants [EPA] contend that the cover letter concerning the Objection was not a mandatory requirement, but a reminder by the EPA of the LDEQ’s civil rights obligations.” (p.53)

This case also follows a legal strategy we saw during the Trump administration, whereby State Attorneys General from conservative Republican States would coordinate legal strategy to attack progressive reforms, particularly environmental regulations, see NY Times:

• Energy Firms in Secretive Alliance With Attorneys General

Attorneys general in at least a dozen states are working with energy companies and other corporate interests, which in turn are providing them with record amounts of money for their political campaigns, including at least $16 million this year.

They share a common philosophy about the reach of the federal government, but the companies also have billions of dollars at stake. And the collaboration is likely to grow: For the first time in modern American history, Republicans in January will control a majority — 27 — of attorneys general’s offices.

Last year, the Union of Concerned Scientists documented how these coordinated attacks focus on climate related issues:

Each of the states—Florida, Louisiana, Mississippi, South Carolina and Texas—have sustained billions of dollars in climate change-related damage. Regardless, their AGs routinely collaborate on lawsuits and other actions to attack federal environmental safeguards, especially those designed to mitigate the impact of global warming. Why? At least partly—if not largely—because the AGs and their political organization, the Republican Attorneys General Association (RAGA), receive substantial financial support from fossil fuel companies, electric utilities, and their respective trade groups.

Since then,  the strategy has just gotten more blatantly obvious and more aggressive:  Republican-led states sue EPA over expanded powers to block polluting projects

Dec 5 (Reuters) – A group of 11 Republican-led states and energy industry groups have challenged a U.S. Environmental Protection Agency rule that bolsters state and tribal veto power over pipelines and other major infrastructure projects that might pollute rivers and streams.

In my new series on “Dismantling The Administrative State”, I had planned to lay out background materials before getting into the specifics.

But this case came along out of the blue and it so perfectly validated my concerns that I felt obligated to jump the gun and write about it today, before getting to the larger framework.

More to follow.

DEP Funds And Hides Regulatory Failures Behind Rutgers’s Flood “Resiliency Primer”

Voluntary Local Approach Has Failed Miserably – Not One Stormwater Utility Created

Time For State Mandates & Development Impact Fees To Fund Mitigation

(Caption: In case its too small to read, the red arrow about points to the “500 Year Floodplain”)

Fairy Tale

• something resembling a fairy tale in being magical, idealized, or extremely happy.
• a fabricated story, especially one intended to deceive.

We’ve written many times over the years to criticize and explain the serious flaws in a suite of DEP planning and regulatory programs that exacerbate NJ’s severe flooding problems. Those flaws have been magnified by the climate change driven increased frequency and intensity of extreme weather.

Most recently, we focused on DEP’s highly touted flooding and stormwater rules, particularly their reliance on outdated rainfall, runoff and flooding data and statistics, especially DEP’s continued reliance on the obsolete 100 year statistical interval, see:

• Billions Of Dollars Spent On NJ Infrastructure “Resilience” Is Already Obsolete, As DEP Fails To Update Regulations To Reflect Climate Science

• Murphy DEP Flood Rules Are Full Of Holes

So we were not surprised by today’s NJ Spotlight story on flooding – which is another in reporter Jon Hurdle’s longtime misleading Fairy Tale efforts to find the positive local needle in the haystack of State government and DEP failures.

Specifically, Hurdle uses the release of a DEP funded Rutgers voluntary “Primer” for local governments to paint a favorable and highly misleading portrait of the status of NJ’s flood prevention programs. This kind of misleading and diversionary fairy tale media coverage is exactly why DEP funds these kinds of projects.

But right there in plain sight – NJ Spotlight printed a graphic – is the elephant in the room: that shows the 500 year flood (see above).

The Spotlight story also included this on point quote about the implications (i.e. failure) of reliance on inadequate engineering design standards (like the DEP 100 year statistic):

“They work to their design-engineering specifications. The problem is that storms are predicted to exceed those. You have this false sense of security, you have a sea wall, but it didn’t do anything for you during Sandy.

“Once you exceed those specs, you are going to flood.

But despite the graphic, and this quote, and the fact that NJ Spotlight has written many stories praising DEP’s flood and stormwater regulations, no mention was made of the fact that the DEP still relies on the obsolete 100 year storm (plus 25%) – “specs” which are exceeded by today’s storms, never mind the increasingly extreme climate change driven weather.

Compounding that misleading reporting (by omission), Hurdle also managed to find one town – Lambertville – that is considering (and not yet adopted) the failed stormwater utility model for finding stormwater management and flood mitigation.

Not one of NJ’s 566 Municipalities and 21 Counties have adopted the stormwater utility model created in enabling legislation several years ago. But Hurdle found the single needle in that haystack of failure.

I wrote him the following notes on DEP regulatory flaws and funding, with copies to legislators, DEP, and environmental groups:

Jon – your story today has a good quote about engineering design standards being exceeded and the graphic shows the 500 year flood, so why no mention of the fact that DEP’s recently adopted flood (and stormwater) regulations that have gotten so much (misleading) praise are based on the 100 year flood and are clearly obsolete and under-designed?

NJ municipalities’ Master Plans, zoning, and stormwater management requirements are all based on the seriously flawed DEP regulations, not this voluntary Rutgers technical guidance.

I’ve been trying to warn the public and policymakers about these flaws for many years and instead of highlighting them, your story obfuscated these risks and regulatory flaws.

On the funding issue, why not do a story on the use of off-site impact fees on existing and new development to provide funding for flood mitigation?

This development and the impervious surfaces create the runoff that causes the flooding.

The so called “rain tax” legislation is a total failure, because it was enabling and not mandatory and no one has adopted it.

Towns were given a chance to voluntarily do the right thing and failed to do so, so now its time for the State to step up with mandates.

DEP could also do a lot more on the regulatory side with stricter standards for wetlands, stream buffers, stormwater management, CAFRA, flood hazard and forestry regulations.

Bill Wolfe

NJ American Water Uses Spotlight In Stealth Political Campaign to Deregulate Profits

Democratic Deputy Speaker Of NJ Assembly Pimps The Corporate Message

Lame Duck Bill A Preemptive Strike Against New Drinking Water Protections

Billions Of Dollars And Water infrastructure Investment At Stake

About a week ago, NJ Spotlight began running a new advertisement for NJ American Water.

I found that ad very curious – occurring seemingly out of the blue – especially because it was not linked to any specific legislation or political issue or project campaign that I was aware of. But the ad did specifically mention “forever chemicals” PFAS, and misleadingly mention allegedly rigorous drinking water testing, so my interest was piqued.

My initial suspicion was that the ad was designed to respond to pressure and mislead the public about the risks of hundreds of unregulated toxic chemicals DEP has found in NJ drinking water – a critical issue I’ve been warning the public about for several years and recently petitioned DEP to respond to, see:

• Petition For Rulemaking Submitted To Force The Murphy DEP To Upgrade Protections For Drinking Water In Light Of Widespread Chemical Contamination By Unregulated Chemicals

Significantly, while DEP just denied that petition (published in the December 4, 2023 NJ Register: 55 NJR 2430(a)), DEP is now drafting amendments to update the NJ Water Supply Master Plan, which could include regulatory strategies to address unregulated chemicals, including new sampling requirements, new treatment requirements (e.g. granular activated carbon) and new drinking water standards.

In the petition denial, DEP conceded the validity of my argument and signaled the development of new regulatory requirements to better protect drinking water:

Conclusion

In conclusion, the Department acknowledges that research conducted to date has demonstrated the presence of unregulated contaminants in water supplies. As described above, the Department is involved in varied and continuous efforts to obtain more complete information about the occurrence, toxicity, and possible treatment approaches for these contaminants. As the results of these ongoing efforts are analyzed, the Department will determine whether science supports initiating a regulatory monitoring and treatment program for currently unregulated contaminants.

The advertisement also touted private corporate investments in “resilience” to respond to the climate emergency.

Below is a screen shot of the ad and here is the linked text of the NJ American advertisement.

Amazingly, the NJ American deregulatory and privatization message is pitched by NJ Democrat Assemblyman Paul Moriarty, the Deputy Speaker of the Assembly.

NJ Democrats have long championed privatization of NJ’s drinking water and wastewater systems, see:

• Wide Range of Critics Blast Democrats’ Water Privatization Bill

Just days after the NJ American advertising campaign ads appeared, NJ Spotlight ran this story, favorably reporting on legislation that would further deregulate and increase NJ American’s profits:

• Lawmakers move to help utilities recover costs for upgrades

With no debate, the Assembly on Thursday approved a bill that allows water utilities to recover the costs of improvements to its sewer and drinking water systems more quickly without regulatory review. 

Here is the revealing legislative provision that suggests that this legislation is a preemptive strike and anticipates upcoming DEP regulations: (NJ Spotlight)

In the Assembly Appropriation Committee earlier this month, the panel amended the bill to allow utilities to recover for costs for new treatment systems, such as granular-activated carbon treatment, as well as related tanks, pumps, control and electrical equipment.

This is a particularly egregious example of a set of corrupt abuses:

• The corporate media campaign is being run by the Deputy Speaker of the Assembly, which just passed the bill with no debate – a new low in Trenton’s legacy of political corruption;

• The corporate media campaign is being used to generate favorable news coverage at NJ Spotlight, thereby compromising their journalistic independence and integrity

• This hugely significant legislation is being rammed through a lame duck session, with no public awareness or debate;

• The bill would expand current privatization and deregulation of private utility profits, allowing private corporations to pass through 100% of the costs of new regulatory requirements and profit on investments to upgrade treatment systems, with no regulatory review and limits on their profits or public awareness and participation;

• The bill would be a preemptive strike against future DEP drinking water regulatory protections and climate adaptation requirements, making it much harder for DEP to set tough standards due to concerns about costs and rate shock by consumers.

The bill must be stopped – where the hell are the NJ environmental groups?

100% Renewable Energy By 2035 Is Another Climate Fraud

Bill Would Actually Harm NJ Solar Expansion And In State Renewable Energy Jobs

Cheered on by climate and environmental activists, the NJ Global Warming Response Act (Act) was signed into law over 16 years ago.

Over that timeframe, it has become obvious that the greenhouse gas emissions reduction goals of the Act have absolutely no teeth required to implement them and therefore those goals are purely aspirational and effectively meaningless symbolic gestures.

We predicted this at the outset, in a Sunday Star Ledger Op-Ed:

It also has become clear that climate and environmental activists were duped by legislators, the DEP Commissioner, and Gov. Corzine into their support for what amounts to a political stunt and fraud on the public. It is very easy politically to set lofty goals in the distant future that don’t require anyone to do anything to attain those goals, mandate that DEP adopt regulations, and dedicate funding to achieve those goals.

In turn, climate and environmental activists – wittingly or unwittingly – have been misleading the public in their false praise of the law.

But apparently, the same legislators and those same climate and environmental groups have not yet learned those lessons of the failed Global Warming Response Act.

They are repeating the exact same mistakes that delivered the toothless Global Warming Response Act – this time by supporting aspirational renewable energy goals that rely on market incentives.

The renewable energy bill considered today (S2978 SCS) would revise NJ’s current renewable energy portfolio standards to create “clean electricity attribute certificates (CEACs)” and direct the BPU to:

require electricity suppliers to purchase CEACs equivalent to 80 percent of their retails sales by 2027, 85 percent by 2030, and 100 percent by 2035.

Sounds good, right?

But even if the bill were to achieve its goals – and 100% of retail sales of electricity were “renewable” – there is no guarantee that current NJ based greenhouse gas emissions would be reduced by one ton or that even out of state emissions be reduced.

The bill does not mandate that current NJ emissions be reduced or that current fossil power sources are phased out. There are no limits on expansion of current NJ fossil power and fossil infrastructure to meet electric demand, both in NJ and the wider PJM region. Those power plants will continue to operate and continue to emit greenhouse gases.

And as I’ve written before, given the projected more than doubling of NJ electric demand as a result of electrification of transportation and buildings, the current fossil generating sources will continue to operate and continue to emit greenhouse gases. At a regional level, there will continue to be demand for that fossil power.

For an explanation and solid analysis of how renewables serve new demand growth and will not reduce greenhouse gas emissions, see:

• Energy transitions or additions?  Why a transition from fossil fuels requires more than the growth of renewable energy

The power currently produced by NJ gas fossil plants, served by fossil pipelines, will continue to be sold into the regional PJM grid and be exported to other States.

There are several fatal flaws in the bill.

First, the bill effectively would put the regional grid operator – a private corporate entity known as PJM – in charge of the grid, access to the grid from renewable power sources, define “zero carbon”, “environmental benefits or attributes”  and “net” issues, and delegate power to PJM to block expansion of renewables based on “reliability” concerns (that is done in Section 9):

“Clean electricity attribute certificate” or “CEAC” means a certificate representing the zero-carbon or environmental benefits or attributes of one megawatt-hour of generation from a clean electricity production facility whose electricity is produced in New Jersey or settled through the wholesale energy markets operated by PJM Interconnection, L.L.C., or any successor organization, or such other quantity of generation, as may be adjusted by the board pursuant to subsection a. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), to account for the greenhouse gas abatement achieved by the clean electricity production facility.

Second, the bill allows for renewable energy imports from other states (for which NJ has no power to control and enforce actual renewable energy: (according to the bill’s Statement:

The BPU would be authorized to require an electricity supplier to meet a portion, or all, of its clean electricity procurement obligations established by the bill through participation in a regional clean electricity attribute market established or approved by the BPU, a regional transmission organization (e.g., PJM Interconnection, L.L.C., New Jersey’s current regional transmission organization), or another qualified entity.

For an example of the likely abuses associate with “renewable energy imports”, consider the case of Maryland and the Physicians For Social Respsonsibility Report: (PEER Report)

A large and growing portion of Maryland’s renewable “clean energy” comes from high-polluting energy sources. In 2019 alone, approximately 40% of the energy attributed to the state’s Tier 1 Renewable Portfolio Standard (RPS) came from “dirty” sources, up by more than a fifth from just the year prior.

Importation of renewable power also would undermine the growth of in state renewable power and expansion of jobs in renewable energy sector.

Importation of renewable power will export NJ consumer funds to out of state businesses, the exact opposite of investing in New Jersey.

If the bill actually mandated reduction of instate greenhouse gas emissions and/or phased out existing fossil power, then the imports of renewable energy might be justified. But with no such guarantees, the bill results in the worst of all worlds: it would undermine NJ’s renewable energy sector and do nothing to reduce current NJ greenhouse gas emissions.

Finally, there appears to be some confusion about the impact of the bill on NJ’s currently polluting garbage incinerators, all of which are located in environmental justice communities. I sense that this confusion may be a political game to cultivate the support of  the bill by EJ and climate activists with a false promise.

NJ Spotlight falsely reported that the bill would “phase out” those incinerators:

Another battle may be brewing over whether the bill includes a provision phasing out garbage incinerators, a priority for environmental justice advocates.

“Incineration is dirty energy and should not be considered clean,’’ said Maria Lopez- Nuñez, deputy director of the Ironbound Community Corporation.

“We’re in a climate crisis,’’ added Doug O’Malley, director of Environment New Jersey. “We need legislation that incentivizes in-state renewables and prevents fossil fuel generation and co-pollutants [such as arsenic, mercury and other contaminants].”

The bill would not “phase out” those incinerators. It would merely not allow them to be considered a “clean energy production facility” and eligible for participation in the program:

“Clean electricity production facility” shall not include a resource recovery facility.

Just like the current fossil gas power plants, they too would continue to pollute.

And the bill does not “incentivizes in-state renewables” – just the opposite: (NJ Spotlight)

... solar developers fear the bill will lead to New Jersey relying on less costly out-of-state solar systems instead of in-state systems.

“This is providing room for zero solar growth in New Jersey from here on in,’’ said Lyle Rawlings, founder and president of Advanced Solar Products in Flemington.

The bill has language suggesting most of the new solar capacity will come from outside New Jersey where land and labor costs are cheaper.

Doug O’Malley is being duped again. Fool me once….

[End Note: And for chairman Smith to move this bill in the lame duck session is pure political cowardice and highly inappropriate abuse of process.]

Energy Master Plan, BPU Reviews, And DEP Regulations Are Not Based On The Most Basic Cost-Benefit Concepts

A few months ago, I wrote about the release of a National Oceanic And Atmospheric Administration (NOAA) Report on the huge trillion dollars costs of the climate emergency, and I criticized the media’s misleading reporting about those costs, see:

• Corporate Climate Criminals (And Their Paid Puppets In Media) Are Lying About The Costs Of Climate Chaos

NJ Spotlight once again printed these corporate lies about costs as facts, and did so with no rebuttal and no mention of the well documented costs of the climate emergency, known in the jargon as “the social costs of carbon” (SCC).  EPA issued that Draft SCC Report last year, and it got no coverage by NJ Spotlight or other NJ media that I am aware of.

Amazingly, just days ago, the National Oceanic and Atmospheric Administration released a report on the HUGE costs of climate driven storms and catastrophes: (Read the NOAA Report)

The so called “costs” of the transition to renewable energy and decarbonization are only relevant in the context of the benefits (in this case, the avoided costs) of the climate emergency.

But the media is not the only institution that ignores the huge costs of the climate emergency (and the huge $7 trillion dollars in annual subsidies to fossil fuels – see this IMF Report). And these so called “costs” [of transition to renewable energy and decarbonization] are actually investments.

The private sector ignores these costs – and so does government – which economists term “externalities” and examples of “market failure”. This is a critically important omission, because the most basic justification for government intervention is to address market failure and BPU and DEP are responsible for that intervention in energy and environmental matters.

But there are no formal BPU analytical and planning methods and/or DEP regulatory requirements that mandate that policies, regulatory approvals, and infrastructure investments decisions fully and transparently consider and reflect the costs of the climate emergency.

I’ve long been a harsh critic of cost benefit analysis (CBA) – when your house is on fire, you do not worry about how much the fire truck costs – so it is shocking that I must note that NJ State government fails to apply the most basic concepts of CBA in energy planning and environmental regulation.

So today, I was stunned to read a NJ Spotlight story on the release of the fifth National Climate Assessment and note that the focus of the coverage was on the costs of the climate emergency (NJ Spotlight):

The report devoted a full chapter to the economic impacts of climate change, noting that communities will face high costs for defending coastal areas from rising seas or elevating roads, but may also enjoy economic opportunities such as more jobs in renewable energy.

But unfortunately, Spotlight narrowed the issues mainly to the lack of federal flood insurance coverage and risks and costs of coastal flooding.

But, to their credit, the coverage did allude to serious market failure:

Although there is “ample” private capital available that could be used for adaptation projects, there is a perception among the business community that those projects won’t return enough on investment, the report said.

And it did broach the long ignored and essentially taboo subject of “strategic retreat”:

The Rutgers projections for sea-level rise are broadly in line with those in the new report. It projects seas around the U.S. coastline will rise another 11 inches by 2050. That would leave some areas of the Jersey Shore uninhabitable, raising the prospect that some coastal communities in places such as Cape May and Cumberland counties might be required to move inland, a process known as “managed retreat.”

But it did so in a misleading way by presenting the DEP’s Blue Acres program in a favorable light. As I’ve written many times, that program – which is under funded, toothless, scattershot, and reliant on voluntary willing sellers –  is not a sound plan or regulatory strategy to effectively implement a real strategic retreat program.

While it is an improvement to see Spotlight finally report on the costs of the climate emergency, and mention market failure by the private sector and the need for “managed retreat”, I sent the following note to NJ Spotlight reporter Jon Hurdle to clarify misleading reporting and urge that future coverage of energy costs incorporate the costs of the climate emergency:

Jon – you wrote this:

“But nearly all the new money is for mitigating climate emissions with wind and solar power and electric vehicle charging stations, leaving little for adaptation.”

That may be correct nationally or globally, but exactly the OPPOSITE is true in NJ – just ask DEP and BPU for the data on investments in adaptation versus compliance costs for emissions reductions (mitigation). Far more is spent on adaptation than emissions reduction. For example, the paltry RGGI allowance price is the ONLY cost imposed on carbon polluters (and that’s only for a segment of the energy sector).

It would be nice now that NJ Spotlight has finally covered some of the cost issues if those costs could be integrated in the coverage of the so called “high costs” of the renewable energy transition (and those “costs” are actually investments and they all pass the traditional cost-benefit test, but that is never analyzed by BPU or DEP and never reported by media).

Wolfe