WolfeNotes.com

Greenhouse Gas Emissions From Fracked LNG Scheme Ignore Climate Emergency

Would Wipe Out Benefits Of Billions of Dollars In Renewable Energy Investments 

I modified original photo by Catskill Mountainkeeper

The first task is to put the economy at the service of peoples. Human beings and nature must not be at the service of money. Let us say NO to an economy of exclusion and inequality, where money rules, rather than service. That economy kills. That economy excludes. That economy destroys Mother Earth.

The economy should not be a mechanism for accumulating goods, but rather the proper administration of our common home. ~~~ Pope Francis

A coalition of environmental groups from the four States that comprise the Delaware River Basin (NY, NJ, PA, DE) today begin a week long targeted coordinated campaign to pressure their State Governor’s to oppose a proposed Liquified Natural Gas (LNG) plant on the Delaware River.

The campaign is in advance of the Delaware River Basin Commission (DRBC) public meeting on December 9, 2020, where the agenda for the meeting vaguely alludes to possible “action” on the LNG scheme (see item #6 on the DRBC agenda).

That bureaucratic ambiguity is in keeping with a pattern of obfuscation and misleading claims on this project, by DRBC and the NJ DEP, (remarkably, the Murphy DEP already quietly issued various permit approvals) see:

• Murphy DEP LNG Permit Approval & Suspension Exposes A Rigged And Corrupt DEP Permit System
• Did Senate President Sweeney and/or NJ Gov. Murphy Pressure Regulators To Keep Delaware LNG Export Terminal Under The Radar?

The environmental groups have far more resources than I, so I’ll just provide some background and make a few political and policy points that their public action alerts have either ignored or not adequately focused on.

1. We are in a climate emergency and have just a decade to phase out fossil fuels to avoid catastrophe

The climate emergency demands a moratorium on new fossil infrastructure and a rapid phase out of existing fossil fuels. (See: IPCC Report on Global Warming of 1.5 degrees C)

It is literally insane to be building more fossil infrastructure and increasing fossil fuel production.

2. Approval of this LNG fossil fueled scheme would make a mockery of State climate and energy plans

The Governors of NY (Cuomo) and NJ (Murphy) have made climate and renewable energy a major policy focus. The both have signed so called “nationally leading” climate and energy legislation, made regulatory commitments, killed proposed fossil infrastructure projects, and enacted Energy Master Plans that call for transition to 100% renewable energy and billions of dollars of public investment in renewables.

The LNG fracked fossil fuel scheme not only directly contradicts those policies and commitments, it would wipe out any greenhouse gas emission reductions that could result from billions of dollars of public investments in renewable energy.

3. The NJ DEP and the DRBC reviews are fatally flawed because they completely failed to consider greenhouse gas emissions, climate impacts, or energy policy

As we’ve written, DEP permit regulations ignore climate change, see:

• NJ Environmental Regulations Ignore Climate Change

The DRBC regulations and review procedures are similarly flawed.

How can regulatory agencies, tasked to serve the public interest, review and approve fossil infrastructure without even considering climate science and energy policy during a climate emergency?

4. Why are some NJ “environmental” groups undermining this targeted campaign and providing green cover for DRBC?

I just learned that NJ League of Conservation Voters, NJ Audubon, and NJ Conservation Foundation (they are pathetic cheerleaders, along with their $100 million Wm. Penn Foundation created faux grassroots fundraising focused front group The Coalition for the Delaware Watershed) are doing a public event with the DRBC.

Of course, these corporate foundation funded groups are not part of the coalition targeting the Governors and DRBC to fight the LNG scheme.

Instead, these groups are diverting the public from the climate emergency and DRBC role in the LNG scheme, thereby providing green cover for the DRBC via a “meet the DRBC” event, just 6 days after the December 9 meeting:

The Delaware River provides drinking water to more than 13 million people and supports an outdoor recreation industry of over 20 million dollars each year. It’s managed and protected by the Delaware River Basin Commission (DRBC), the only agency of its kind in the U.S. The DRBC holds official public meetings but rarely gets the opportunity to less formally interact with the public.

That’s why I hope you make time to join us for our virtual meeting on Tuesday, December 15 with Delaware River Basin Commission deputy executive director, Kristen Bowman-Kavanagh. This is a rare opportunity to engage directly with the Commission about its priorities, the establishment of its new Advisory Committee on Climate Committee, and the environmental issues that you care about most.

This is not the first time these groups have done very, very similar diversion and political cover schemes.

It’s happened far too many times to be coincidental.

Shame on these corrupt self serving bastards. (my guess is that this event was created and funded by Wm Penn)

“Don’t Frack NY” Protest – Albany, NY – (9/1/12)

A Series Of Pipeline Construction Accidents Illustrate The Dangers of Deregulation

DEP just lifted suspension of permits and authorized resumption of Horizontal Direction Drilling

sinkhole collapse on River Road, Montague, NJ (7/9/13)

You are about to read a very rare story. A story of a bureaucracy strongly suggesting – almost flat out admitting – that they made mistakes and their regulations are lax. This is virtually unheard of. Follow.

For years, we have been documenting serious failures during construction of NJ pipelines and explaining how these events expose lax regulatory oversight and enforcement by NJ DEP,  (and be sure to hit the links to awesome photos!)

• Tennessee Gas Pipeline Drilling Causes Sinkhole Road Collapse (2013)
• This is What Gas Pipeline Construction Looks Like (Part 1 of 2)
• This is What Gas Pipeline Construction Looks Like (part 2 of 2)
• The Elysian (Fracked) Fields of Princeton – Montgomery

DEP made no regulatory changes in response to these disasters.

During the Christie Administration, we warned that loopholes in current laws (like the Highlands Act exemption for linear utility development) and DEP’s continued efforts to expand the use of and rely on cursory regulatory oversight of pipelines via mechanisms like “General Permits” (GP’s) and “Permits-By-Rule” (PBR) would result in future environmental disasters.

And we criticized the Christie DEP’s rollbacks of lax freshwater wetlands, stream encroachment, and stormwater management rules because, among other things, they further weakened DEP’s regulatory oversight of pipeline construction.

During legislative oversight hearings on those DEP regulatory rollback proposals, DEP’s Deputy Commissioner Ray Cantor and Assistant Commissioner Ginger Kopcash flat out lied to legislators, to the media, and to the public and strongly denied our claims.

All those rollbacks have not been revoked by the Murphy DEP.

So, we were not surprised by the most recent accident by NJ Natural Gas this summer:

• Drilling work halted on natural gas pipeline after mishap damages N.J. couple’s house

In response to that disaster, environmental groups filed a motion to stop construction.

But we were surprised by the failure of the media and environmental groups to analyze the underlying cause of the failure.

We were disappointed by the failure to investigate DEP’s lax oversight and educate and focus public outrage on the fact that pipeline construction is governed by lax DEP regulations, including Freshwater Wetland General Permit #2 (“Underground Utility Lines” (p. 63) and Flood Hazard Act Permit-By-Rule #36 (“placement of an underground utility line using directional drilling or jacking”  p. 74)

FWW GP#2 completely deregulates HDD:

[Important context: keep in mind that the FWW regulations are where DEP codifies its authority under Section 401 of the Clean Water Act to issue a “water quality certificate”. Several other States – but not NJ – have used that authority to kill proposed pipelines. HDD under wetlands is not regulated so not subject to a 401 WQC review.]

FHA PBR #36 – for HDD under rivers and streams – is basically a self certification by the pipeline company, with NO DEP or public review.

This is crazy. Insane. Irresponsible. Reckless. Dangerous. Foolish. Stupid. Obscene.

Nor were we surprised that – despite the fact that even the lax DEP regulations gave DEP the power to revoke the GP and PBR permits and require a more rigorous site specific “Individual Permit (IP), – that via letter of November 9, 2020, DEP lifted the suspension of permits and authorized resumption of pipeline construction and “Horizontal Direction Drilling” (HDD). (and I saw no criticism or media coverage of this).

So, we thought we’d ask DEP what their rationale was.

In a November 20, 2020 email to DEP, I wrote: (I’ve omitted DEP staff names):

Greetings – I was recently forwarded the Department’s November 9, 2020 letter to NJNG regarding suspension and reinstatement of FWW and FHA approvals and have a few questions.

I read the applicable regulations (freshwater wetlands and stream encroachment) and understand that the Department had the option of revoking the GP and PBR and mandating a new site specific individual permit.

Given the circumstances, I’m curious as to what the Department’s rationale is for not mandating an IP.

Is that written down anywhere?

I noted that NOV’s were issued. Has the Department finalized those and imposed enforcement fines and/or penalties?

Finally, I’m curious about the DEP “request” that DEP compliance and enforcement staff be on site for HDD resumption. Why was this made as a “request” and not a formal permit condition or enforcement Order?

Appreciate your timely response.

Respectfully,

But what we were shocked by was – after years of being ignored and sometimes even personally attacked by DEP – the rapid response we got from DEP.

We were shocked not only by how quickly DEP responded, but by what they admitted. DEP replied, not with obfuscation weeks or days later, but just hours later. DEP wrote:

Mr. Wolfe

The Division evaluated the strategy for the remaining HDDs submitted by NJNG and consulted with technical experts within the Department and with New Jersey Geologic Service.  Based on our review and the oversight that will occur with the Department’s Enforcement bureau, the Department felt it was appropriate to re-instate the permit.  The current regulations essentially deregulate HDD under freshwater wetlands so there were certain limitations on the actions that the Department could take.  However, based on information that we have received from multiple interested parties, the Department is evaluating the rules to see if changes to the regulations are necessary.

I don’t have a lot of information on the status of the NOV.  That is being handled by our Enforcement group.  If you would like information on the status of that, you can reach out to xxxxxxxxxxx

Last, the Department will have oversight over the HDD resumption.  The letter mentions a “request” but we conveyed to NJNG in meetings that we wanted to have representatives onsite.

Let me emphasize and repeat that.

According to the Murphy DEP:

“The current regulations essentially deregulate HDD under freshwater wetlands so there were certain limitations on the actions that the Department could take. However, based on information that we have received from multiple interested parties, the Department is evaluating the rules to see if changes to the regulations are necessary.

We look forward to DEP’s upcoming “Climate PACT” rules closing these loopholes and strengthening the current broken regulations and regulatory oversight.

In the meantime:

• I hope that Senate Environment Committee Chairman Bob Smith reads this. Maybe he could dust off his failed legislative veto Senate Resolution SCR 66 to declare even more DEP regulatory rollbacks “inconsistent with legislative intent”.
• I hope that Ray Cantor (now at NJ BIA) and Ginger Kopcash (who is still at DEP!) read this and reflect upon their lies and that their credibility suffers for it.
• I hope that the NJ fake green groups, who signed off on the Bob Martin/Senator Sweeney “compromise” to avoid legislative veto and insisted that pipelines could be stopped and adequately regulated under DEP regulations are ashamed of their ignorance, weakness and corruption.
• And I hope the NJ press corps – especially NJ Spotlight – who wrote this as a “he said she said” story hold the liars and dangerous fake green fools accountable.

[End Notes:

1. This post is limited in scope to pipeline construction and DEP’s land use regulations.

There are far more significant flaws in DEP’s regulations – which DO NOT CONSIDER OR REGULATE GREENHOUSE GAS EMISSIONS from major fossil infrastructure projects, like pipelines (and the fracking wells, the pipeline transmission & distribution network, or the business, industry and residential consumers of the gas/fossil fuel).

This is why – at a minimum – there must be a moratorium on pipeline and fossil infrastructure approvals until these regulatory flaws are fixed.

2. There is a  “public interest” (see p.114) provision that Ray Cantor sold to the Green Mafia and Senator Smith as the solution to “fix” the Category One stream buffer loopholes and thereby dodge a legislative veto (they called it the “concurrent proposal” at the time) (June 20, 2016 proposal)

Obviously, it was a diversion, will not work, and did not address there real regulatory flaws. Cantor is good a duping dupes.

The same”public interest” deal that was negotiated and signed off on by the Green Mafia is now also included as a massive loophole in the environmental justice bill Gov. Murphy just signed into law.

That Zombie “public interest” provision does not close the loopholes in DEP stream encroachment (buffer) regulations. (see p.114 above link) and now it guts the EJ law.

That “public interest” provision the Green Mafia agreed to now serves as a massive loophole in the EJ law.

It allows DEP to over-ride a factual finding that pollution causes disproportionate burdens (which triggers mandatory permit denial) and instead issue the permit if it is in the “public interest” (it must be a “compelling” public interest, whatever that means).

As I recently wrote:

Worse, the DEP permit denial authority is destroyed by an “exception” – a huge loophole provision that allows DEP to waive the mandatory permit denial and issue the permit if a polluter claims that there is a “compelling public interest” for the industry or facility seeking the permit, even if there are disproportionate and unjust impacts.

There is gross incompetence and political cowardice in some quarters of the environmental community.

It is astonishing that these same useful idiots were able to sabotage the C1 buffer rollback legislative veto and years later insert a Trojan horse in the environmental justice law.  That just proves there are no consequences for incompetence and no accountability for lying.

3. I failed to note that environmental groups Pinelands Preservation Alliance and Sierra Club quietly met with DEP on September 8 and their lawyers wrote a “please, pretty please, do the right thing” followup letter on October 2, 202o.

Stunningly, that letter failed to even mention the above applicable flawed DEP regulations – which govern the pipeline and strictly limit DEP’s powers – or demand that these regulations be revised. WTF?

Instead, they focused on what amount to legal platitudes, closing with this nothing burger:

How can something like this happen (when the lawyers had the DEP suspension documents so knew what regulations applied?) ~~~ end]

Vague Aspirations, No Specific Policy Commitments, Actual CMP Amendments Postponed Indefinitely

Abdicating Leadership, The Commission Bows To BPU and DEP Lead On Climate Policy And Program

Looks like my controversial snarky and frustrated foray into “Fake News” has become a reality!

We’ve been pounding this issue for a long time, see:

• Climate Change Already Impacting Pinelands Forests (2013)
• Will Climate Change Destroy The Pinelands?
• Pinelands Commission Lawyer Claims Agency Lacks Power To Consider Climate Change In Review of $500 Million Fossil Infrastructure Project
• Review of Pinelands Gas Pipeline And New Power Plant Fails to Consider Climate Change Impacts
• A Climate Agenda For The Pinelands

After over a decade of demands for climate action by the public – including bruising battles over fossil infrastructure pipelines – the Pinelands Commission will consider a Resolution (see Draft Resolution) to address climate change at their next meeting scheduled for Friday December 11, 2020. (see correction)

[Correction – I was working off the Commission’s October Management Report, which I received today. The dates are wrong. Here’s the accurate info from the Pinelands Commission:(my emphasis)

That resolution was actually passed at our meeting last week; it’s not a draft. It recognizes the science behind climate change and directs the Climate Committee (LUCIS Committee) to develop climate mitigation amendments to the CMP, among other things, so now the real work comes. Your comments can now be used in that amendment drafting process, and I’m grateful to have your input.

It’s been a long time coming (and Executive Director Wittenberg actually tried to derail it).

As I wrote most recently, over 6 years ago, the Pinelands Commission, in The Fourth Progress Report on Plan Implementation (September 2014), first directed staff to develop climate policies and amend the Comprehensive Management Plan (CMP) to address climate risks and impacts. (see Action Plan Table on p. 166):

The Commission will evaluate what options are available to address climate change through the CMP and in cooperation with other agencies.

In that post, I reiterated a broad climate policy framework for the Commission:

There are many things the Pinelands Commission could do to address climate change, including:

1) establish and fund phenology, forest management, climate impact science, and monitoring programs, including incorporating climate driven rainfall/drought into their similarly long delayed and seemingly stalled “Kirkwood-Cohansey” project on restricting water allocation to protect ecological functions and ecosystems;

2) mandate and promote energy conservation, energy efficiency, renewables (including installation of EV charging stations, public transport, bicycles, and zero carbon development), and distributed publicly owned local power, micro-grids, etc – including requirements for new development applications and to retrofit of existing development;

3) prohibit new fossil infrastructure, like pipelines and power plants, and phase out existing fossil infrastructure, including ecological restoration of disturbance associated with that infrastructure;

4) regulate greenhouse gas emissions, including mandatory offset and mitigation requirements and net zero development;

5) establish a pro-active adaptation program (not just reactive fire suppression).

Call it a Green New Deal for the Pinelands!

Unfortunately, the Commission’s Draft Resolution does not do any of that.

There are no binding schedules or timetables for adopting necessary amendments to the Pinelands Comprehensive Management Plan (CMP).

There are no specific greenhouse gas emission reduction goals snd timetables.

There are no specific research, monitoring, policy, planning, program, staff, or funding elements or commitments.

On the positive side, the draft Resolution does build scientific and legal/regulatory bridges (in legal jargon, a “nexus”) between climate and the Commission’s regulatory jurisdiction under the Pinelands Protection Act and the provisions of the CMP: (emphases mine)

WHEREAS, these measures have not only protected the Pinelands ecosystem but have significantly benefited air and water quality, while protecting agricultural lands and vast wildfire-prone forests that serve to sequester carbon in the entire region when properly managed; and

WHEREAS, wetlands comprise approximately one-third of the Pinelands, and they play a critical role in filtering sediments, pollutants and nutrients from water, while also capturing and storing carbon, providing a buffer against sea level rise, and reducing the impacts of flooding and droughts;

Recall that Commission legal Counsel Stacy Roth and ED Wittenbeg denied that this jurisdiction existed. So, there is some progress on this important and fundamental issue.

But the way the Resolution is drafted raises other problems.

For example, there is no specific and direct linkage between climate and energy policy, energy infrastructure (like pipelines), and building and construction standards and practices, which are currently addressed under the CMP.

This lack of detail undermines the Commission’s ability to establish critical energy efficiency, renewable energy, electrification, and zero carbon standards and technologies. It weakens the Commission’s ability to discourage and/or phrase out fossil infrastructure, to impose retrofit requirements, and to impose CMP standards and conditions on land use and development approvals that greenhouse gas emissions are offset.

The forest related Whereas clause opens the door to destructive forest management and “forest stewardship” logging practices that actually increase carbon emissions and reduce carbon sequestration. Forests, just like wetlands, naturally store/sequester carbon without any active management (note that the wetlands whereas does not include the “properly managed” clause).

Here are the highlights of what the Commission Resolution would do. (Resolved): (emphases mine)

[1. – 2.]

3. The Pinelands Commission further acknowledges that substantial and sustained reductions in greenhouse gas emissions are required, together with adaptation measures, to limit the risks of climate change.

[4. – 7.]

8. The Pinelands Commission shall evaluate all proposed CMP amendments in terms of their potential impacts on greenhouse gas emissions and shall seek to include measures that will mitigate adverse impacts on the Pinelands environment.

What are “sustained reductions in greenhouse gas emissions”? What agency and what specific regulations “requires” those reductions?

No numeric greenhouse gas emission reduction goal is stated (in #3) and no timetable to achieve those reductions are specified and no regulatory  agency is assigned responsibility.

It also appears that the scope of the climate review (#8) is limited to future “proposed CMP amendments”, not the current provisions of the CMP. This must be redrafted and clarified.

It also appears that the review is limited in scope to “mitigate adverse impact” – as opposed to reducing greenhouse gas emissions, phasing out fossil, and transitioning to a 100% renewable energy system.

That confused conflation of greenhouse gas emissions reduction (sometimes referred to as “mitigation”) and traditional impact mitigation is present throughout the draft Resolution and really needs to be re-written.

The climate emergency is more than a threat – there are actual current adverse impacts on the Pinelands resources right now. This whereas should be revised to make that clear:

WHEREAS, the Pinelands Commission acknowledges there is ample scientific evidence documenting that climate change poses a new and severe threat to the Pinelands environment;

Finally, the Commission would defer to DEP and BPU and other state agencies on the substance of the statewide climate and energy policy:

5. The LUCIS Committee shall coordinate with the New Jersey Department of Environmental Protection, the Board of Public Utilities and other state agencies and departments on their efforts to mitigate the impacts of climate change in New Jersey.

This “coordinating” role contradicts the Commission’s role under the Pinelands Protection Act (Act) and conflicts with decades of leadership.

The Act authorizes and directs the Pinelands Commission to protect the Pinelands and adopt a CMP with standards that are more stringent than those adopted by other state agencies.

Most of the Pinelands’s CMP environmental and land use standards are far more stringent than the DEP’s statewide standards.

The Commission must not abdicate its statutory leadership role.

I urge readers to contact the Pinelands Commission and strongly urge that they strengthen the draft Resolution to address the significant flaws I outline above (and more!)

It’s taken so long to get here, better to do it right, redraft the Resolution, and delay another month.

DEP Attacks Critics, While Exposing Further Caving to Business Community Opposition

Senator Smith Invokes Right Wing “Regulatory Takings” Talking Points To Undermine Climate Regulations

DEP Is Rigging The Game In The Business Community’s Favor

NJ Spotlight today wrote a followup piece on their DEP climate regulation story last week.

Last week’s Spotlight story was based on an interview with DEP Deputy Commissioner Shawn LaTourette. It included remarkably irresponsible but revealing quotes – bordering on climate denial – which off course I blasted, see:

• The Murphy DEP Refuses To Regulate To Protect Against Climate Impacts

Just as I predicted (see: DEP In Damage Control Mode), in today’s  story, Mr. LaTourette attempted to walk back those remarks, but in doing so, he dug his hole even deeper.

LaTourette falsely attacked critics (while again hiding his dangerous policy views behind “science”). In doing so, he further exposed DEP’s capitulation to business community opposition, and invited an even more damaging attack by Senator Smith, longtime Chairman of the Senate Environment Committee.

Below I’ll explain what’s really going on, but first read the whole NJ Spotlight story:

• DEP warns environmentalists not to prejudge climate regulation review

I)  False Attack On Critics Will Backfire

In another stunning set of absurd remarks, Mr. LaTourette falsely attacks critics: (emphasis mine)

LaTourette said the critics were wrong to conclude that the DEP would leave it up to an individual to decide whether it was safe to build a house in a particular location.

“They have nothing to react to at this point,” he said. “For folks to jump to the conclusion that what we may propose to help ready our state to face this great risk, for folks to presuppose that whatever it is won’t be good enough, that’s not following the science.”

What an idiot. And now he not only confirms that he’s an idiot, but that he is motivated by bad faith.

As NJ Spotlight thankfully (but only partially noted), the criticism was based on LaTourette’s own statements:

LaTourette’s first remarks included this: “We are not saying: ‘You cannot build in a future flood-risk area.’”

But LaTourette’s “first” remarks were far worse than that. Here’s what he actually said, which included a statement that it was not DEP’s role to regulate and he used red meat right wing rhetoric to attack both government and regulation:

“We’re not at a point, nor do we think it’s our role, to tell people: ‘Don’t build here, you shouldn’t build there, you can’t do that,’” LaTourette said. …

He said the DEP wants to avoid being the “big, bad government” that imposes heavy-handed regulations.

officials have continued to gather input via a series of virtual meetings with stakeholders and aim to formally propose new regulations “early next year,” perhaps in the first quarter, LaTourette said.

And in trying to cover his tracks and justify his false attack on critics, LaTourette lamely tried to hide behind “science” when he said:

“For folks to jump to the conclusion that what we may propose to help ready our state to face this great risk, for folks to presuppose that whatever it is won’t be good enough, that’s not following the science.”

Critics weren’t “jumping” to any conclusion, critics were responding to MaTourette’s dangerous statements.

Of course, this has zero to do with “science” and by making that absurd “science” remark, Mr. LaTourette – a former corporate lawyer – reveals that he knows nothing about climate science and that the term is just another slogan or talking point to him.

If he were engaged in good faith, Mr. LaTorette should have apologized and admitted that he mis-spoke and set the record straight.

His remarks were so egregiously wrong and embarrassing that the Gov.’s Office and DEP Commissioner McCabe should have issued a public statement distancing themselves from his remarks and setting the record straight.

The fact that none of that happened basically confirms that he did not mis-speak and that his warped policy views represent the position of Gov. Murphy.

That is a very bad sign. Very bad. And instead of damage control, Mr. LaTourette sparked additional criticism.

II) DEP Is Caving To Business Community Opposition And Following Christie’s Anti-Regulatory Playbook

But Mr. LaTorette didn’t just falsely attack his critics.

In his effort at damage control, he revealed a major concession: i.e. that DEP will issue what’s technically known under administrative law as a “pre-proposal”, which he mistakenly called a “road map” (that misrepresentation is totally unacceptable, coming from a lawyer):

“Within the next several weeks, certainly before the end of the year, we will lay out a road map that folks can respond to, that we can take more comment on, before a rule is proposed,” he said. “It is the next phase in stakeholdering these important concepts.”

There are several bad things going on here. DEP is rigging the game.

Procedurally, a “road map” prior to a regulatory proposal is not just delay.

It amounts to a major political concession, because it provides an additional opportunity for the business community to organize, lobby, and work secretly behind the scenes – in the dark – to defeat any strict science based DEP climate regulations.

At the same time, this informal “road map” process also undermines the science and expertise of DEP staff, by allowing the business community to make unaccountable attacks on DEP’s recommendations, with no scientific basis and with arguments based on economics and politics.

Decades of DEP regulatory experience tell me that the business community always intervenes politically behind the scenes directly with the Governor’s Office, the DEP Commissioner, and legislators on major DEP rules and important DEP science that forms the basis of rules. To minimize this political abuse, NJ laws limit that intervention and provide transparency and accountability mechanisms.

The NJ Administrative Procedures Act (APA) – the law that governs DEP’s rule making – does not provide for any informal “road map”. The APA law has 3 regulatory procedures, all of which are formal and on the record, so that they may be reviewed by the public, the legislature, and a court of law (meaning that public comments and DEP responses are transparent). Those 3 valid procedures are: 1) a rule pre-proposal; 2) negotiated rulemaking; and 3) rule proposal.

In contrast to a formal “pre-proposal”, “negotiated rule making” or “proposal” (procedures legally authorized under the NJ Administrative Procedures Act), with a “road map”, the business community lobbying and interventions behind the scenes with the DEP Commissioner and Gov.’s Office will not be transparent and may occur in the dark with no fingerprints.

This invites abuse and undermines the science.

This “road map” process is exactly what the business community asked for.

Specifically, in an October 5, 2020 letter, NJBIA Vice President Ray Cantor (a revolving door former Christie DEP Deputy Commissioner) strongly criticizes the DEP’s regulatory process and urges DEP to slow down and provide additional opportunities for his business colleague to intervene politically: (emphases mine)

“Within the next several weeks, certainly before the end of the year, we will lay out a road map that folks can respond to, that we can take more comment on, before a rule is proposed,” he said. “It is the next phase in stakeholdering these important concepts.”

It’s obvious that NJBIA’s Cantor has the ear of DEP’s LaTourette. And it’s pathetic that LaTourette parrots NJBIA legal gibberish.

Finally, LaTourette’s DEP is following Gov. Christie’s regulatory policy and procedures, not those of Gov. Murphy.

In the first hour of his first day in Office, former NJ Gov. Christie issued Executive Order #2 , which was designed to “provide immediate relief from regulatory burdens” and prevent “costly”, “job killing”, “red tape” regulations on the business community. EO#2 includes an “advanced notice” process to solicit private sector  input before rules are proposed (the NJ APA does not define and authorize an “advanced notice” process. Christie just made that up). Christie’s EO #2 provided the exact “road map” informal process that Mr. LaTourette just confirmed.

Christie EO #2 provides:

III)  Senator Smith Invokes Right Wing Property Rights Talking Points

Finally, more troubling still were the comments of Senator Smith, longtime Chairman of the Senate Environment Committee.

I’ve worked closely over many years with Senator Smith and know – with the exception of the Highlands Act which he sponsored at the policy direction of Gov. McGreevey – that he strongly opposes DEP land use regulations and often carries the water of the development community.

Senator Smith – despite contradicting himself on the risk of sea level rise and supporting DEP Tourette’s absurd prior comments –  really undermined necessary strong DEP regulations by playing, right out of the box, the “takings” card: (emphasis mine)

If the DEP is taking an incremental approach to climate regulation now, that’s because it can’t afford the lawsuits that it would attract if it issued strict rules on development in future flood zones, argued Sen. Bob Smith (D-Middlesex), chairman of the Senate Environment and Energy Committee.

Smith, who frequently warns about the dangers of rising seas at the Shore,said any move by DEP to prevent development of future flood zones would prompt “inverse condemnation” suits claiming that the government has taken private property without compensating the owner, who is therefore entitled to payment.

“If the department took the position that ‘we’re going to tell people where they can and can’t build’, that’s inverse condemnation and you’ve got to have the bucks to back it up,” he said. “To take the role that some people would like to see them take, they don’t have the resources to do it.”

He said the DEP is taking a limited approach to new climate regulation for now, in hope of convincing the public that stronger measures will be needed later.

Smith, in addition to advocating very bad policy, is just flat out wrong on the NJ law on “regulatory takings”. His remarks reflect politics, not science and mis-state the NJ law on “regulatory takings”..

In order to trigger a compensable “regulatory taking”, a DEP regulation must totally extinguish all economic use of a property and violate “reasonable investment backed expectations”.

The risks of sea level rise, storm surge, extreme weather events, flood hazards, and related climate impacts have long been known, and not only to scientists and DEP regulators, but to the general public and investment community.

DEP has been issuing warning Reports on coastal hazards for decades and adopted a federally approved coastal management strategy that addresses coastal risks related to climate. NJ’s coastal land use law, CAFRA, was enacted over 40 years ago.

DEP also has been mapping and regulating inland flood risks under the 40 year old NJ Flood Hazard AreaControl Act.

If anyone didn’t know about all this, surely Superstorm Sandy opened their eyes almost a decade ago. Due diligence comes from simply reading the paper!

So there can be no “reasonable investment backed expectations” to develop in high risk areas.

Furthermore, there are many alternative uses of property that provide economic opportunities, aside from development. So, it would be rare indeed for DEP to extinguish all economic uses of land.

There is no NJ case law I am aware of directly on point with respect to DEP climate regulation and takings, but the precedent is strongly in favor of DEP’s rules, if they are based on science and designed to protect public health, safety and environment.

[Update – a reader agrees, and offers concrete examples:

you did a good job correcting Sen. Bob on takings law…empty land, unbuildable land at the nj coast still has a value as a buffer and privacy measure for neighbors – a market for empty lots for privacy sake…the price of that probably goes way up over time…

I’m a customer: I bid $5 for any unbuildable lots…will take up to ten to add to my portfolio and sell them to neighbors for $10,000 each. ~~~ end update]

Finally, Smith also completely misses the point regarding the objectives of development restrictions to address climate change:

“I don’t think it’s going to be enough to provide the information and the guidelines,” Smith said. “Not everybody is altruistic or thinks in the current moment what is really in their best long-term interests. Their view is very short term, and it’s very hard for them to do the right thing.”

DEP regulations are not designed to protect individual and economic interests. Of course individuals often seek economic gains that violate the public interest, risk pubic safety and health, and harm the environment – that’s why we have regulation in the first place.

DEP regulations are designed to protect the public interest, public health and safety, and the environment.

Shame on Smith, he’s as bad as DEP’s LaTourette.

[End Note: Of course, the science and regulatory issues are far broader than just addressing the risks from flooding under CAFRA and FHACA.

DEP’s own “climate PACT” initiative addresses both emissions reductions and “adaptation”.

In fact, it will be interesting to see how broadly DEP interprets its existing authority to mandate emissions reductions, especially from currently unregulated sources and sectors (e.g. buildings, transportation, forestry, agriculture, “small sources”, etc).

Equally, other state environmental agencies, such as NY State DEC, have built scientific and legal bridges between greenhouse gas emissions and adaptation, including important things like fossil infrastructure (e.g. pipelines) and air and water pollution control laws, greatly expanding regulatory authority to address climate, including “upstream” lifecycle and cumulative impacts.

DEP has very broad authority to comprehensively regulate emissions and adaptation, mandate emissions offsets, mitigation, and energy efficiency, etc but all indications thus far are that they are taking a very narrow approach and repeating historical flaws in various flawed DEP individual permit “silo” programs, instead of comprehensive planning and regulation.

Finally, we note that the recent “environmental justice” bill Gov. Murphy just signed into law does NOT address climate justice. That’s right: it does NOT regulate greenhouse gas emissions or adaptation in EJ communities.

How will DEP Climate PACT regulations address the EJ issues?

We’re not optimistic. More to follow, of course.

PS – In the body of this post, I didn’t want to waste readers’ time or a bullet on this lame idiot Jennifer Coffey, who bases her assessments on personal phone calls to DEP hacks.

In what is an unprecedented move, Jenn TRIPLED down!

Jennifer Coffey, executive director of the Association of New Jersey Environmental Commissions, said she had been concerned about what the new regulations would say, after reading LaTourette’s earlier comments, but feels more comfortable after speaking with him.

“I am confident that the DEP is going to be proposing concrete actions under NJ PACT to mitigate the impacts of climate change and to reduce greenhouse-gas emissions,” she said

That’s how you earn those large Wm. Penn and Dodge Foundation and DEP grants. It’s how you get political appointments to DEP lackey private industry controlled groups like the Water Supply Advisory Council. ~~~ end]

After years of pipeline battles and litigation, Commission still has no policy

Another example of failure to address the climate emergency

“inadvertent return of drilling fluid … may occur during the installation”

According to the Pinelands Commission’s September Management Report (excerpt below), Executive Director Wittenberg, via a letter, determined that replacement of over a mile of gas pipeline by South Jersey Gas was not subject to the Commission’s review.

The Wittenberg unilateral letter was issued with no public process or Commission vote, yet it imposed regulatory requirements designed to avoid “potential inadvertent return of drilling fluid that may occur during the installation“.

Executive Director Wittenberg came under withering criticism – including by the Philadelphia Inquirer  and Pinelands Commissioners – for her favorable treatment of South Jersey Gas during prior gas pipeline controversies and her unilateral action and manipulation of the Commission. (“my baby, just wrote me a letter“)

More recently, in July there was a damaging accident caused by inadvertent return of drilling fluid during pipeline construction, and permits were suspended. 

Here is the excerpt from the Commission’s Management Report (emphases mine):

“South Jersey Gas (App. No. 2020-0083.001): On September 21, 2020, the Commission staff issued a letter indicating that the replacement of 5,900 linear feet of natural gas main in the Hamilton Mall area of Hamilton Township did not require an application to the Commission. No application to the Commission was required because the proposed main would serve development which has received all necessary approvals and permits (N.J.A.C. 7:50-4.1(a)6). The September 21, 2020 letter requested that South Jersey Gas prepare a contingency plan to address any potential inadvertent return of drilling fluid that may occur during the installation of approximately 1,135 linear feet of natural gas main by horizontal directional drilling under the Atlantic City Expressway. The letter indicated that the contingency plan should provide for the immediate notification of the Pinelands Commission regarding the inadvertent return of drilling fluid.”

This is completely unacceptable administrative practice.

The letter also reveals the Commission’s longstanding failure to adopt enforceable requirements to address the climate crisis and fossil infrastructure.

Here is the text of the cited exemption: (see: NJAC 7:50-4.1(a)6)

I wrote Commissioner Lohbauer, who has been a leader on climate and pipeline issues, the following note as a heads up:

Commissioner Lohbauer – According to the Commission’s September Management Report (excerpt below), the Commission “approved” a 5,900 linear foot gas pipeline replacement by South Jersey Gas, with no public process, allegedly because the project was exempt from CMP review requirements.

Even if that were the case – which I do not concede without analyzing the Commission staff’s written regulatory analysis if one even exists – the Commission imposed regulatory requirements (i.e. contingency plans) absent any regulatory process.

This is unacceptable administrative practice and poor policy and planning.

As fossil infrastructure ages and replacement is sought, there should be phase out policies and plans and retrofit requirements – including energy efficiency, electric conversion of buildings, renewable energy installation, etc at the Commission approved development the pipeline served.

Are you aware of this? Are you advocating CMP amendments to enforce these kind of climate and energy policies?

Respectfully,

Bill Wolfe

We’ll let you know what we hear back. I’m not expecting much.

[End Note: NJ DEP also has regulatory responsibilities – see my note to Department Assistant Commissioner Vince Mazzei:

Hey Vince – saw that you recently briefed the Pinelands Commission on the development of DEP’s climate PACT regulations and thought you might be interested in this, which also applies to DEP’s wetlands (401 WQC) and stream encroachment rules. Has DEP issued enforcement action or modified regulations on “inadvertent return of drilling fluid that may occur during the [pipeline] installation”?

Wolfe