WolfeNotes.com

Climate Policy Must Shift From Costly Incentives & Corporate Subsidies To Mandates

All Carrots And No Sticks Can Not Work

Corporate Funded Magical Thinking At Princeton Would Stoke More Gas & PSE&G Profits

Yesterday, the NJ Senate Environment Committee announced its annual Earth Day Legislative hearing agenda.

The good news is that it’s better than last year’s debacle designed to promote logging of NJ forests, see:

• An Orwellian Earth Day – NJ Democrats Push Forest Logging Bills On Earth Day

But the bad news is that, although it addresses the (undeclared in NJ by Gov. Murphy) climate emergency, the agenda seems narrowly limited to “climate adaptation”, ignores the need for deep and rapid reductions in greenhouse gas emissions and is limited to “invited guests”.

The Committee will meet to hear testimony from invited guests on strategies that the State and industries could implement in order to adapt to and mitigate the effects of climate change.

Curiously, Chairman Smith has yet to post his own GHG emissions reduction bill, co-sponsored by Senator Greenstein, S1602, which “Authorizes regulation of greenhouse gas emissions under “Air Pollution Control Act (1954)” and “Global Warming Response Act. (for analysis of that, see:

• Senate Environment Committee Chairman Smith Introduces Legislation To Put Regulatory Teeth In The Global Warming Response Act

What is Smith waiting for?

As you will recall, back on February 10, the Committee took testimony on the climate emergency from just 2 “invited guests”: DEP Commissioner LaTourette and BPU President Joe Fiordaliso.  I called that stunt out, with this post:

• Murphy Administration Emphasizes Existential Threats Of Climate Emergency, Then Runs Away From Any “Mandates”  – Senate Environment Committee Hearing Is Pure Kabuki

NJ BPU President Fiordaliso and DEP Commissioner LaTourette were the only “invited guests” to testify. No scientists. No climate or energy experts. No climate activists or environmentalists. Pure political theater.

The hearing was actually worse than I expected, in terms of being a political show and opportunity for the Murphy administration to respond to critics. This was not legislative oversight, this was legislative press event.

At the close of that hearing, realizing that the DEP & BPU testimony lacked substance and was vague Kabuki, Chairman Smith stated that he was inviting climate scientists to testify at a followup hearing.

When will the public and climate activists be “invited” to testify?

Upon learning of the April 21 hearing yesterday, I immediately sent Chairman Smith an email (mistakenly) questioning the narrow focus on adaptation and recommending that he expand the agenda to include emissions reductions.

This morning, I  was researching and preparing to write a post blasting Chairman Smith for failure to conduct that hearing on emissions reductions.

But I am embarrassed now to admit that I somehow missed that Senate followup hearing email notice because I was on the road and off line at the time.

This morning, I just now learned that the followup hearing was held on March 14, 2022. The topic of that hearing was:

The committee will meet to hear testimony from invited guests on what actions the State should take to achieve net-zero greenhouse gas emissions by 2050, and the cost of those actions to ratepayers.

(listen here – I am unable to open the audio player).

Here is a transcript of the hearing.

I)  Corporate Funded Magical Thinking At Princeton

The Senate’s scientists and “invited guests” were limited to one Princeton assistant professor of engineering, who presented a technocratic and economic modeling exercise, designed to optimize the “least cost” scenario. The study is titled:

Once again, the focus on “costs” ignores benefits, as well as other non-energy consumer “costs” people pay. Logically, costs are only relevant in relationship to benefits. Investments are not “costs”. Public goods are not consumer commodities or allocated by market forces. Market prices do not consider “external costs” (social, environmental, or public health) or reflect the true price of energy. And not all relevant policy considerations are assigned a market price or are amenable to “modeling”.

I’ll obviously need to review that Princeton study in detail and will write about it in a future post. But I found this Princeton testimony about the study interesting:

Also excluded, implicitly and without explicit disclosure, are corporate profits (e.g. explicit rate of return on investment).

I also found this interesting:

PSE&G makes its highest profits on transmission – like imports of electricity.

According to NJ Spotlight – who also is funded by PSE&G – the Princeton modeling Report was funded by PSE&G.

But PSE&G not only funded it, but had a role in pre-publication reviewing and drafting:

This finding is probably the most controversial finding and quite revealing of the real agenda:

Again, it just so happens that PSE&G makes large profits in “utility scale solar” (as opposed to rooftop solar). “Utility scale” industrial solar is destroying what’s left of NJ’s farms and forests.

[Update: 4/20/22 – According to a NJ Spotlight story today, PSE&G has divested from solar. I stand corrected. Apologies for error.]

“New gas fired generating capacity” means even more fracking, pipelines, compressor stations, and power plants, which directly contradict GHG emissions reductions goals and climate activists’ demands for a moratorium on new fossil infrastructure.

Here’s another revealing pro-gas finding –

Relatedly, PSE&G received huge $300 million/year nuclear plant subsidies – the Report recommends more of that, again to the benefit of PSE&G:

And this is another pro-corporate profit – pro-PSE&G recommendation:

The Princeton Report even goes out of its way to slam rooftop solar:

And this finding exposes some of the myths of renewable power. Some Murphy “green” cheerleaders have claimed that off shore wind displaces carbon power. That is not true – just the opposite is the case, where renewables serve huge growth in electricity demand and even fossil power increases:

For a solid analysis of how renewables serve new demand growth, see:

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

And here is the fatally flawed assumptions – magical thinking – the whole analysis relies upon: a zero carbon fuel does that not exist and a carbon removal technology that is not feasible or even commercially available:

Of course, there’s more PSE&G profits buried in the findings:

But I guess I missed the boat big time on that Report and hearing and must apologize to Smith for implying that he crafted an arbitrarily narrow “adaptation” agenda.

II)  ADAPTATION

But while we’re on the adaption issue, I’ve recently posted these warnings:

• Murphy DEP Signals That New Jersey Is About To Repeat The New Orleans Katrina Debacle

• Part Two: The New Orleans Experience With Extreme Storm Design Standards Is Instructive

Here is my email to Smith, with adaptation recommendations.

Most importantly, I recommend that State policymakers dramatically shift the current approach from market based inventive and subsidies (carrots) to legislative and regulatory mandates (sticks):

Greetings – please accept the below as testimony to enter into the record for the subject hearing:

1. The focus of the hearing on adaptation must be expanded to include emissions reduction strategies and regulations. Such a focus is timely, in light of the DEP’s proposed flawed CO2 emissions reduction rule and upcoming climate PACT rules.

2. The way to accomplish that expanded focus is to post Chairman Smith’s bill, co-sponsored by Senator Greenstein, S1602, which “Authorizes regulation of greenhouse gas emissions under “Air Pollution Control Act (1954)” and “Global Warming Response Act.

https://www.njleg.state.nj.us/Bills/2022/S2000/1602_I1.PDF

3. With respect to the adaptation issue,I submit a recent petition for ruelmaking I filed with DEP, The Pinelands Commission, and Highlands Council with respect to land use and development controls to reduce wildfire risks. That petition is based on testimony during the Committee’s February 10, 2022 hearing, see

https://www.nj.gov/njhighlands/act/rules/petitions/rule_petition_20220309.pdf

4. I strongly urge the Committee to reject any recommendations that relate to “active forest management” – other than carbon sequestration, afforestation, reforestation, and urban forestry, which I strongly support – as an adaptation strategy.

5. I urge the Committee to support specific legislative mandates to require electric conversion of new and existing buildings.

6. I urge the Committee to reconsider the current market based and incentive/subsidy approach to both climate adaptation and emissions mitigation (reduction). Instead of these voluntary and expensive strategies (carrots), I urge adoption of mandates and regulatory enforcement (stick). 

7. I urge the Committee to consider legislation to adopt a policy of “strategic retreat”, which would include:

a) adoption of the 500 year storm interval as a surrogate for projected climate impacts and repeal of the current 100 year storm in current law and regulation;

b) prohibitions and new more stringent restrictions on existing and new development on lands projected to be inundated, subject to storm surge and/or sea level rise, or flooding, based on the 500 year storm event;

c) repeal of current laws that allow rebuilding of storm or flood damaged properties (e.g. in the Flood Hazard Control Act and CAFRA).

The above recommendations ar based on the best available current science and are necessary. They would be a serious beginning and strong first step to address the accelerating climate emergency.

Climate Emergency Is Increasing The Intensity Of Rainfall And Extreme Storms 

DEP rainfall study ignored recent excessive rains from tropical storms Ida and Henri

NJ DEP Signals They Will Continue To Rely On The Outdated 100 Year Design Storm

The continued reliance on the 100-year protection standard represents an organizational failure by the Corps and Congress, which are still tailoring their responses to the last disaster, said Bea, an emeritus civil engineering professor at the University of California-Berkeley who led an independent forensic analysis of the levee failures after Katrina underwritten by the National Science Foundation. (NoLa.com)

Despite the science and recent repeated massive flooding, the NJ DEP is signaling that they will continue to rely on the outdated, scientifically flawed, and unreliable 100 year storm in upcoming climate adaptation regulations.

That 100 storm forms the basis for several critical DEP regulations regarding stormwater management, flood plain mapping, coastal zone management, land use, water resources, and planning and design standards that apply to development.

I explained the significance of the flawed 100 year storm in this September 4, 2021 post:

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

The US Army Corps of Engineers recently were forced to admit a similar huge engineering blunder due to reliance on flawed design standards, a $14 billion mistake: (Federal Register Notice, 4/2/19)

The signal from DEP is loud and clear, and has been repeated at least 3 times in the last few months.

Most recently, DEP signaled this in Senate testimony by Murphy DEP Commissioner Latourette to the Senate Environment Committee on February 10, 2022. In his testimony, Commissioner LaTourette highlighted the findings of recent research on increased rainfall (that study is discussed below).

Previously, DEP had authorized and in November 2021 released a seriously flawed rainfall study. That study was limited in scope to the 100 year storm, and it did not consider “excessive rains from tropical storms Ida and Henri”, see:

That Nov. 2021 released study explained the significance of rainfall data:

Curiously, the study limited the scope of the analysis to the 100 year storm, and did note even consider more extreme storms:

The study acknowledged this serious flaw, but in an elliptical way:

Regardless, despite this flaw – and DEP scientists’s criticism that the study failed to consider “recent excessive rains from tropical storms Ida and Henri” – DEP issued a praiseworthy press release touting that flawed study:

• NEW JERSEY-SPECIFIC STUDIES CONFIRM RAINFALL IS INTENSIFYING BECAUSE OF CLIMATE CHANGE

In that press release, DEP not only signaled, they outright affirmed that they would continue to rely on 100 year storm, but with slight increases documented by the study:

Notably, the studies will provide  the scientific basis for the ongoing development and modification of rules to be introduced under the state’s NJPACT (Protecting Against Climate Threats) and NJREAL (Resilient Environments and Landscapes) initiatives as directed by Governor Murphy’s Executive Order 100.

The DEP’s own press release revealed the flaws in the study and noted it’s reliance on the 100 year storm:

Among other storm types studied, what is often referred to as the 100-year, 24-hour storm is included. A 100-year storm is one that has a 1 percent chance of occurring based on past historical records and represents the total amount of rainfall likely to fall within a 24-hour period. […]

The long-term projections were developed from a combination of 47 climate models under moderate and high future emissions scenarios. The modeled storms included those with a 50% chance of occurring each year (also known as a 2-year storm), a 20% chance of occurring each year (5-year storm), a 10% chance of occurring each year (10-year storm), a 4% chance of occurring each year (25-year storm), a 2% chance of occurring each year (50-year storm), and a 1% chance of occurring each year (100-year storm).

The DEP was involved in designing the scope of the study. The DEP limited that scope to the 100 year storm and did not even consider the 200 – 500 year storms.

The DEP’s “worst case” storm was the current 100 year storm.

The DEP Science Advisory Board (SAB) “peer review” raised a large red flag on this flaw:

Boom!

Given the importance of this issue, it is highly unusual that the DEP SAB peer review document curiously eliminated comment #8!

You have to scroll to the bottom of the researcher’s response to those comments to even find comment #8!

I don’t think deleting a comment about “excessive rains from Ida and Henri” was an inadvertent or honest error.

I think DEP intentionally eliminated question #8 because it undermines the credibility and reliability of the study.

As I wrote back on September 4, 2021 (link above), tropical storm Ida was greater than a 100 year storm, and it illustrated that NJ DEP’s regulations that formed the basis of the design for billions of dollars of “resilience” projects were totally inadequate, largely because they rely on the 100 year storm.

The volume of water from a 200 – 500 year storm would far exceed the small percentage increases documented in the DEP’s flawed study, which was based on the 100 year storm.

In Part 2 of this post, I will explore the New Orleans Katrina experience to illustrate the implications of DEP’s continued reliance on flawed design standards, like the 100 year storm.

“Takings” Comment To The Right Of Libertarians & Corporate Property Rights Zealots

Reliance On Failed Local Land Use Powers Is A Gross Abdication of State Responsibility

Remark is “highly irresponsible – bordering on criminal negligence”

[Update below]

I just choked on my coffee reading this written remark by NJ Senate Environment Committee Chairman Bob Smith.

Smith was responding – in writing, giving him time to reflect – to a public question posed at a NJ Spotlight roundtable on stormwater management.

I’ve worked confidentially and closely with Smith on legislation and publicly monitored and testified before his committee for many years, and long been concerned about his thinking and lack of action on land use. Let me offer just 3 of many examples I could cite: 1) He only sponsored the Highlands Act because he was directed to do so by Gov. McGreevey. 2) Smith flat out insisted that the Ocean and Coastal Protection Council bill (also enacted into law) did not provide new land use powers to DEP. 3) Most recently, Smith backed a lame climate land use bill that perpetuated the demonstrably failed reliance on another fabricated and false notion of exclusive “home rule” on land use.

(And off course, there is a pattern: Smith did nothing before Superstorm Sandy, did nothing after Superstorm Sandy and is doing nothing after Ida either). The Dirge goes on:

• A Dirge To McHarg and Mumford – Who Are Rolling Over in Their Graves

So, based on those experiences and many others, I think Smith’s remark was not off the cuff hyperbole, but actually represents his ideological views on land use.

Here is the question and Smith’s reply, followed by my letter to Smith taking strong exception to his remark: (NJ Spotlight)

Q: In a time of increased flooding risk due to the climate crisis, do private companies have a responsibility to the state to reduce impervious surface and/or prevent impervious surface from being built, i.e., by building/developing less land and/or not selling property to developers who will reduce pervious surface? Or is this yet one more thing that must be legislated at the local level via ordinance? 

See the 5th Amendment of the U.S. Constitution, but should be regulated by local zoning. — Sen. Robert Smith (D-Middlesex), chair of Senate Environment and Energy Committee

Here is my reply to Smith, with a copy to DEP Commissioner LaTourette:

Dear Senator Smith – I just read your response (excerpted below) to a question published by NJ Spotlight. I was simply, astonished.

Could you please clarify and expand upon your glib remark, or guide me to some legal basis for your “thinking” here?

As you know, there are many NJ State laws and DEP implementing regulations – including laws you sponsored like the Highlands Act – that regulate land use, including restricting the location and extent of impervious surfaces and limiting the volume, rate, and risks and impacts of the stormwater it generates. These laws apply to existing and proposed new development.

The DEP has even used impervious surface regulations as a basis to promote development under the CAFRA regulations.

These State laws and regulations have all been upheld by the NJ Supreme Court and federal courts with respect to “takings” challenges.

We are in a climate emergency. The private sector must be responsible for the many adverse impacts they create, including from stormwater. Private property is not immune from law and regulation.

It is more than obvious by now that the current State legal and regulatory framework are grossly inadequate and failing to respond to the climate emergency.

The NJ Legislature and the DEP must greatly expand the scope and stringency of virtually all laws and regulations with respect to greenhouse emissions reductions and adaptation to climate impacts.

As a leading legislator, it is highly irresponsible – bordering on criminal negligence – to throw up your hands and hide behind a manufactured and false facade of the US or NJ Constitution’s “talkings” provisions and to continue to rely on a false notion of “home rule”.

I look forward to your clarification.

Bill Wolfe

C: DEP Commissioner LaTourette

* letter was amended on home rule

[End Note: Senator Smith did nothing with his legislative oversight and regulatory veto powers when the Murphy DEP weakened stormwater regulations – a move that was strongly criticized by FEMA – and even his bill’s supporters were forced to admit that the local “home rule” based stormwater utility law is a total failure – not one community is implementing it, not one.: (NJ Spotlight)

Q: What New Jersey municipalities have successfully created stormwater municipal authorities? How long have they operated and are fees adequate to address the “itsy-bitsy creek?”

NJDEP is not aware of any New Jersey municipality that has created a stormwater utility. To assist willing local governments, NJDEP has published Stormwater Utility Guidance, which is available here.  — Shawn M. LaTourette, Commissioner, New Jersey Department of Environmental Protection (NJDEP)

[Update: Here is the current NJ case law on “regulatory takings” that would apply to State land use regulation: (case citations omitted. Hit the link and read the entire Court’s decision if you are interested).

Note the “categorical example” that establishes the legal standard to trigger a taking: to deny “all economically beneficial or productive use of a property” – a very high standard. Constitutional and statutory police power based State regulatory limitations – even severe limits – on impervious surfaces, reductions of off site stormwater generation and flooding, and the location and extent of development to protect public health and safety does not come close to triggering this “takings” standard – thus exposing the legal absurdity of Senator Smith’s radical views.

The State’s land use regulations only become legally stronger during a climate emergency – and are virtually bullet proof in the event of an emergency declared by the Governor and/or the Legislature.

Importantly, federal and NJ Courts have recognized that the Gov. even has the power to declare a climate emergency and impose a complete moratorium on development and need not wait for the Legislature to act:

Fascist And Racist Forces Are Driving Astroturf “Working Class” Events

Message of “Freedom” Used To Appeal To Broader & Legitimate Public Grievances

[Update #1: 2/14/22 – economics professor Richard Wolff explains what I meant by “legitimate grievances” and how they create conditions conducive to the rise of fascism – listen here!

[Update #2: 2/14/22 – Chris Hedges does his usual superb job explaining. A taste:

The US domination of the world economy, after 75 years, is over. It is not coming back. We manufacture little, short of weapons. Our economy is a mirage build on unsustainable levels of debt. The pillage orchestrated by the capitalist elites and corporations has hollowed the country out from the inside, leaving the infrastructure decayed, democratic institutions moribund and at least half the population struggling at subsistence level. The two ruling parties, puppets for the ruling oligarchs, refuse to curb the rapacious appetites of the war industry and the rich, accelerating the crisis. That the rage of the dispossessed is legitimate, even if it is expressed in inappropriate ways, is never acknowledged by the Democrats, who were instrumental in pushing through the trade deals, deindustrialization, tax loopholes for the rich, deficit spending, endless wars and austerity programs that have created crisis. Instead, shooting the messenger, the Biden administration is targeting Trump supporters and winning draconian sentences for those who stormed the capital on January 6. Biden’s Justice Department has formed a domestic terrorism unit to focus on extremists and Democrats have been behind a series of moves to de-platform and censor their right-wing critics. ~~~ end updates]

There is little doubt in my mind that the forces (by “forces”, I mean people, organizations, money, media, and ideology) who planned, organized, funded, publicized, and mobilized the trucker anti-vaxx “protests” in Canada are right wing fascist forces.

But their seemingly targeted opposition to vaccine “mandates” and the message of “freedom” are very effectively disguising these fascist forces and being used to appeal to a far broader set of issues and legitimate grievances. This enables the fascists to grow their movement and expand their base. (The Guardian):

The official line from Bauder and his co-organizers, however, has remained focused; in a Facebook live broadcast, Bauder instructed his supporters to “stop talking about the vaccine” and instead stick to message of “freedom”.

Such strict message control has attracted mainstream support. Numerous members of the Conservative party, Canada’s official opposition, have come out to meet the protesters. Elon Musk and Donald Trump have both endorsed the convoy. Fox broadcasters Sean Hannity and Tucker Carlson have provided glowing updates on the continuing occupation.

Legitimate anger and grievances are being mobilized and targeted against government and left/progressive ideologies, instead of the corporate forces and Neoliberal ideologies that are generating the social and economic conditions that create the grievances.

Republicans and libertarians have effectively done this for many years in the US – blaming government for corporate abuses.

In response, government, media, progressives, democrats and those on the left are dismissing these “protesters” as ignorant rabble . This dynamic is way beyond Hillary Clinton’s “deplorables”, but reflects the same elitist arrogance and detachment from some people’s suffering and legitimate grievances. The result is a further polarization between left/progressives and working class and popular concerns that the left could and should be organizing.

This is a very dangerous and destructive dynamic.

1. Clearly, the media’s wall to well coverage of these protests is getting out the message of the protesters to the public and stimulating more participation and growing the “movement”.

That virtually never happens when anti-war, climate, environmental, or civil rights protesters take to the streets.

2. The police are not arresting, harassing, assaulting, confining them to “free speech zones” and otherwise intimidating these protesters. In some cases, police are supporting them (Youtube of cops bringing food, etc).

That never happens when anti-war, climate, environmental, or civil rights protesters take to the streets. Just the opposite: left leaning protesters are assaulted, arrested, shot, beaten, water hosed, bitten by dogs, and serve long prison sentences. Their “occupations” are crushed immediately – even Occupy Wall Street was crushed by a coordinated national campaign.

3. There are liberals and “moderates” who argue against protests and aggressive tactics, because they antagonize the public and allegedly will create a backlash (read Dr. King’s “Letter From Birmingham Jail” about that).

Ironically, these fake trucker protests will strengthen that argument and further suppress any left oriented street protests, just when climate activists and others need to ramp up pressure and street activism. Tragic beyond words.

4. The fact that fascist forces, organizations, individuals and messages have successfully appealed to the public and mobilized protests is extremely disturbing.

Senate Environment Committee Hearing Is Pure Kabuki

Murphy Administration Far More Concerned About Business Community’s Attacks On “High Costs” And Regulatory Mandates Than Climate Scientists’ And Activists’ Criticisms

Murphy Relies On Incentives, Low Cost Tinkering, And Culture Change

The Senate Environment Committee heard testimony today from only 2 “invited guests” on the climate emergency and what State government should be doing about it. (listen to the testimony here).

NJ BPU President Fiordaliso and DEP Commissioner LaTourette were the only “invited guests” to testify. No scientists. No climate or energy experts. No climate activists or environmentalists. Pure political theater.

The hearing was actually worse than I expected, in terms of being a political show and opportunity for the Murphy administration to respond to critics. This was not legislative oversight, this was legislative press event.

Both Fiordaliso and LaTourette were far more sensitive and responsive to the business community’s attacks on their climate and energy policy on the grounds of imposing high costs on consumers and doing so via regulatory mandates.

Both denied and repeatedly ran away from any “mandates” – it was like the denial of Peter and the Cock crowing.

How can climate be an existential threat and yet the Murphy people are worried about costs?

When the house is on fire, you don’t conduct a cost benefit analysis and solicit voluntary neighborly response before calling the firemen.

Regardless, it will work. Expect NJ Spotlight to transcribe the Murphy talking points, with the same old complaints of high costs by Ray Cantor (NJ BIA) and/or Dennis Hart (NJ Chemistry Council).

I need to make a few specific comments on DEP Commissioner LaTourette’s testimony.

1. On climate adaptation, LaTourette misleadingly claimed that DEP’s stormwater rainfall runoff volume regulations were based on outdated 1999 rainfall data. (I think he said rainfall had increased 20-30% since 1999).

While that may be true, the real issue is the statistical design storm. DEP currently uses the 100 year design storm, when they should be using the 500 year storm. Science tells us that the future will not be like the past, so these statistics are no longer are reliable. LaTourette is obviously dodging that issue. The difference between the 100 and 500 year design storm volume is huge, far more significant than the alleged 20-30% increase in rainfall.

Basing various DEP regulations on the 500 year storm would have huge impacts, from expanding flood hazard zones to limiting the location and footprint of development, to increasing infrastructure elevations and capacity to reduce flooding.

He also failed to mention that even FEMA blasted DEP’s stormwater rules as totally inadequate in failure to reduce flood risks.

2. On upcoming DEP PACT REAL land use regulations, LaTourette again diverted from real issues and signaled more misguided reliance on market based information disclosure. He mentioned that NJ lacked a real estate disclosure law, while Texas had such a law. Chairman Smith then jumped in to clarify this issue.

So, look for more false solutions to emerge: Smith will sponsor a real estate disclosure bill, while he and DEP ignore issues like NJ’s right to rebuild laws and the need for strategic retreat planning and regulation.

3. LaTourette claimed – falsely – that the DEP CO2 proposal is an emissions “cap”. Not true.

4. On DEP’s current CO2 emission proposed rules, again LaTourette dodged the issues and misled the legislature.

LaTourette emphasized that this rule is just an incremental first step and that more rules would be forthcoming. He not only failed to respond to critics of that proposal, he created a completely false impression of how DEP regulations and the economy actually work.

DEP rules are in effect for 7 years and the private sector makes 30+ year investment decisions in reliance on them, so it’s not like small steps can gradually and quickly be ratcheted down on. In fact, the current DEP CO2 proposal would lock in current emission until 2035 and allow emissions to grow.

Finally, I and others have criticized the DEP proposal and the Global Warming Response Act as toothless and unenforceable.

LaTourette parenthetically referred to some of those legal issues. I objected in the below letter to him and Chairman Smith:

Dear Commissioner LaTourette and Chairman Smith:

I listened closely to the testimony today and therefore am writing to request that you clarify important issues.

In discussing DEP recent regulatory proposals – including the CO2 emissions proposal – DEP Commissioner LaTourette parenthetically and vaguely referred to DEP’s existing authority and the technology based approach of the federal Clean Air Act and NJ Air Pollution Control Act. To paraphrase, he stated that the laws are not driven by climate.

I assume that the Commissioner’s intent was to distinguish the DEP’s regulatory authority under the federal Clean Air Act and NJ Air Pollution Control Act from the aspirational emissions reduction goals of the Global Warming Response Act.

Regardless, these distinctions were not made in the background document for the DEP CO2 proposal. Just the opposite: that proposal conflated these laws and can reasonably be interpreted as asserting DEP authority under the GWRA to mandate emissions reductions to meet the goals of the Act.

This is woefully inadequate treatment of the legal issues I raised to your attention (and have since submitted on the DEP CO2 proposal) in the 1/28/22 email below.

Given these fatal legal flaws I flagged in DEP proposal, it is critically important that you clarify these issues. A vague allusion in testimony is totally inadequate and unacceptable.

I recommend that Commissioner LaTourette rescind the DEP CO2 proposal and not respond to public comment on that proposal.

That is the only way at this point to protect against litigation risk.

I am available to clarify at your request.