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The “Regulatory Prelude” Continues – For Over 15 Years

Little Transparency Or Scrutiny Of Critical DEP Climate Regulations

All signs point to a massive DEP failure to regulate greenhouse gas emissions

I want to make a few important points on the media’s coverage of the Murphy DEP’s release this week of the Climate Science Report and the over the top DEP press release (check out the rhetoric and screaming headlines!)

(the only good news is that at least this press release didn’t include gushing praise quotes from the sycophantic fake green cheerleaders DEP funds. Notably absent are Ed Potosnak, Doug O’Malley, Tom Gilbert, Tim Dillingham, Eric Stiles, Jim Waltman, & Amy Goldsmith! Perhaps they heard my criticism about unethical conflicts of interest? I’ll take credit.)

Taken together, they provide very troubling signals for the upcoming regulatory package Gov. Murphy has dubbed “PACT” – for “Protecting Against Climate Threats”.

For those that don’t know me, for 13 years as a DEP policy planner, I worked with Governors’ Offices (Kean, Florio, McGreevey) and DEP Commissioners from the inside on developing policy, writing regulations, representing DEP before the legislature, and drafting the spin in DEP press releases. I was forced out as a whistleblower and then spent 20+ years as an advocate in the ENGO community. So I know exactly how the game is played and where the skeletons are buried – what they want you to know and what they want to hide and obscure. So I hope you will read this entire post, including hitting the links to verify my claims.

I have to limit my comments to the media coverage and Gov. Murphy’s Executive Order for now, because the link to the Report will not open on my computer. Perhaps because the link is not working, or because the Report is a large document, or because my internet connection is too slow to open it up. Hit the link above and try for yourself.

1. The Context and History Are Missing

The Report was prompted by Governor Murphy’s Executive Order #100:

2. DEP Commissioner McCabe misrepresented the purpose of the Report

As I noted, the Report was prompted by Gov. Murphy’s Executive Order #100.

The primary stated objectives of the Report, under the GWRA and the EO 100, are to present to the public and scientific community and provide the scientific basis of the DEP climate regulations Gov. Murphy called “PACT” – “Protecting Against Climate Threats”.

But DEP Commissioner McCabe not only ignored the actual purpose of the Report, she shifted the focus away from DEP’s obligations to adopt regulations and instead to the actions of individuals.She also narrowed the scope to “adaptation”, virtually ignoring the need for DEP to adopt regulatory mandates on GHG emissions reductions: (DEP press release quotes McCabe):

“As our climate continues to change, it is urgent that New Jerseyans understand what future impacts are likely to occur, and when. Together, we can plan for and adapt to those changes, helping one another to keep our communities safe and our economy strong. This report provides the information necessary to focus New Jersey’s strategic climate resilience planning initiatives while we work to modernize our environmental regulations, making them more responsive to these climate realities.”

Did you get that? Let me put a finer point on it:

• We are experiencing catastrophic climate impacts now – emphasis on the “future” contradicts emergency timeframes (e.g. according to the overwhelming scientific consensus (i.e. the IPCC Special Report), we have about 10 years to make deep emissions reductions in order to avoid catastrophic irreversible effects) and current and future catastrophic impacts are masked by the use of the term “climate change” .
• The DEP’s “organic” legislation and the NJ GWRA do not direct DEP to “keep our economy strong”. There is no legal basis for this economic policy. As we’ve written, continued economic growth wipes out any emissions reductions associated with energy efficiency and renewables.
• The “information” is supposed to provide the basis for DEP regulation and to promote public support for those regulations
• “Resilience planning” is only one part – the bigger part is emissions reductions, which McCabe totally ignores!

3. DEP is falsely claiming that this is the “first” DEP Climate Science Report

The press has emphasized this Report as “the first” ever. But that’s not true.

DEP “resilience” head Dave Rosenblatt (who worked closely with Christie’s “Sandy Czar“ and played a role in Christie’s Bridge-gate scandal) spins this line too: (NJ Spotlight)

“If you’ve been reading every report that comes out, you will see it as a summary of what’s already available,” said David Rosenblatt, the state’s chief resilience officer. “But for the first time in one place, New Jersey has put out the science that it is going to respond to.”

That’s just an historical whitewash. Here are the facts.

Prior to the passage of the GWRA, back in 2003-2004, DEP summarized the then current climate science  in two regulatory proposals.

In the first regulation, adopted 2005, DEP Commissioner Brad Campbell adopted regulations that defined GHG’s as “air contaminants” pursuant to the NJ Air Pollution Control Act. This legal basis anticipated the groundbreaking US Supreme Court’s decision in the Massachusetts case that required that EPA make a “finding” and regulate GHG’s.

However, a later Rutgers’ Report noted that these 2005 rules did not regulate GHG emissions – just the opposite, contrary to media and public understanding, DEP exempted them from regulation! Here’s Rutgers’ explanation of that sellout:

DEP wrote this in the second rule proposal, to explain why they deregulated GHG emissions – it was all just a “regulatory prelude”. The Campbell DEP wrote:

So, legally, NJ has been in “regulatory prelude” for over 15 years.

Despite this shameful 13 year history – DEP did actually issue a “draft” of the Report required by the GWRA – the Murphy DEP is falsely claiming that the current Report is the “first” ever.

This is nonsense.

And is serves to perpetuate the false narrative that Gov. Murphy is a leader on climate.

Similarly, in an effort to create the false impression of the Murphy “breaking new ground”, DEP Chief of Staff LaTourette is whitewashing all this history and made this egregiously false historical claim to NJ Spotlight:

DEP Chief of Staff Sean La Tourette said existing land-use regulation, as currently being reviewed by the department, is no longer suited to current environmental conditions.

“If we are confronted with rising sea levels and chronic inundation, we should not confine ourselves to regulating what and where we build by rules that we made 30 years ago,” he said. “We need to make rules that govern us far into the future.”

Mr. LaTourette is either incompetent or a liar.

The current DEP land use, water, and flood/stormwater rules are not 30 years old. The DEP’s land use and certain water resource rules were comprehensively “aligned” (code for rollback) by the Christie DEP just 3 years ago.  Even more recently, in addition to Christie rollbacks, the Murphy DEP just weakened them LAST YEAR! LaTourette doesn’t want to talk about that, so he makes shit up. See the: FEMA Flays Murphy DEP Stormwater Proposal

4. The DEP is echoing the gas industry’s claims

According to the Philadelphia Inquirer story, the DEP Report says:

“transition from coal-fired power plants to natural gas has led to a reduction in greenhouse gases in the US”

That is highly misleading, lacking in scientific support and consensus,  and I would argue outright false.

(This is not an inadvertent or small error. The exact same gas industry propaganda and lies crept into the Murphy BPU Energy Master Plan and form the basis of the Murphy NJ Transit $500 million fossil boondoggle and are implicit in the Murphy billion dollar wind expansion – these are no small matters when you consider all the gas infrastructure projects now before DEP and the call by environmentalists for a fossil infrastructure moratorium. These lies can provide cover for the Gov.)

I sent this note to Inquirer reporter Frank Kummer to explain:

Hi Frank – good story. But, FYI, this DEP claim is not even close to a consensus science conclusion:

“But the report found that the transition from coal-fired power plants to natural gas has led to a reduction in greenhouse gases in the U.S.”

There is significant disagreement about this for at least the following reasons:

1) the US GHG emissions inventory accounting does not fully consider the lifecycle emissions of methane from fracking, including fugitive emissions throughout the production, transmission and distribution chain;

2) methane has significantly greater warming potential than CO2, short term it’s more than 80X greater;

3) the transition of power plants from coal to gas has been accompanied by huge US fracked oil and gas production boom. This has led to significant exports of US fossil fuels, oil & gas, including coal exports. A lot of the coal that previously was burned at US power plants is exported. Checkout EIA data for support of that.

The foreign GHG emissions from US exports of coal, oil and gas are NOT considered in this claim of reduction of US emissions – nor are the GHG emissions from the production and transportation of goods that are imported to the US.

Climate change is indifferent to the location of GHG emissions.

So, at best, that is misleading – while I say it is false. The DEP is repeating the gas industry’s arguments – this is hugely significant, because we’re calling for the Gov to impose a moratorium of gas infrastructure. He can hide behind this false claim.

I should have referred Frank to Cornell Professor Ingraffia and provided links to his work on fracking and methane.

5. DEP and media are silent on upcoming regulations

To their credit, the NJ Spotlight story does mention the lack of “policy”, but provides no specificity  on the huge pending DEP regulatory issues.

We need to begin by analyzing Gov. Murphy’s Executive Order #100, which has been falsely praised by environmental groups and misreported by the media.

To illustrate this point, it is instructive to compare the provisions of the EO governing “climate adaptation” with those addressing greenhouse gas emissions reductions (“climate mitigation”).

Gov. Murphy’s Executive Order #100 clearly directs DEP to “integrate” climate adaptation considerations in various specific DEP land use and water resource regulations. DEP shall:

However, with respect climate greenhouse gas emissions reductions, the EO uses very different and vague and misleading language. The emissions reduction (AKA “mitigation”) are not specified, regulations are not specified, and instead vague and legally meaningless terms are used. DEP shall:

I’ve worked on regulatory policy for 35 years and I have no idea what the hell the phrase “Establish criteria that shall govern and reduce emissions” means.

“Criteria” are NOT enforceable standards and regulations.

No specific DEP emission reduction regulations and permits are specified (contrary to the mitigation regulations that are).

So, it really is an open question of exactly how the DEP has interpreted EO #100 and if they will even regulate greenhouse gas emissions or continue to rely on RGGI and the BPU Energy Master Plan.

This set of issues warrant close examination and scrutiny, but is getting none.

Furthermore, DEP is actually erecting barriers to the public’s ability to look inside and participate in DEP’s rule development process, which takes me to my final point.

6. There has been no media coverage of DEP “Stakeholder” process for developing climate regulations – governing emissions reduction and adaptation.

The DEP has a web page for the PACT regulations.

The DEP has held several “Stakeholder” meetings to solicit public input.

The PACT rules are broken down into 3 categories:

• monitoring
• carbon emissions
• adapting land use regulations

Curiously, written Stakeholder comments to DEP are accessible on the monitoring and the adaptation rules, but NOT ON THE CARBON EMISSIONS RULES! 

It would be very interesting to know who is saying what to DEP on these essential core regulations, the ones that are being ignored or downplayed by the Gov.’s Executive Order, DEP Commissioner and even the DEP website!

I’ve already tried to warn about comments from PSE&G that seek a huge waiver – obviously that strategic request is related, among other things, to PSE&G’s development of a wind turbine assembly facility at their nuke site in the Delaware.

How many other favors are being sought and by whom?

What kind of emission reductions is DEP considering? What is the timetable? What sectors, who and what kinds of facilities will be subject to these emissions reductions? Will they be mandatory? Will they allow “offsets”? Carbon capture? Nuke credits?  

Voluntary market incentives and corporate subsidies or strict regulatory mandates?

The people want to know.

NJBIA Lobbyist Ray Cantor Needs To Apologize

[Update: 7/2/20: today’s NY Times story makes exactly the point I was driving at:

““It’s especially abhorrent for the president to threaten further entrenchment of segregated communities now, during a time of reckoning on racial injustices in our country,” Ms. Yentel said. A direct line connects America’s history of racist housing policies to today’s overpolicing of Black and brown communities.” ~~~end update]

I tacked this on as an “End Note” to my earlier post about the proposed environmental justice legislation, but, upon reflection feel it is so outrageous that it needs its own post.

Ray Cantor, currently Vice-President and a lobbyist for the NJ Business and Industry Association (NJBIA), was quoted today in a NJ Spotlight story opposing the proposed environmental justice bill.

Obviously, there’s nothing unusual about that – NJBIA almost always opposes environmental laws that would restrict business profits.

But in doing so, Ray Cantor, a former Christie DEP political appointee, claimed that the bill would “red-line” business:

As drafted, the bill would essentially redline any new manufacturing facility or expansion in large parts of New Jersey, Cantor said. “There’s a better way to address this problem,’’ he added.

That claim is a gross abuse of history – i.e. “red-lining” was a systematic and blatantly racist policy deployed by financial institutions and governments to effectively racially segregate US cities and deprive black people of home ownership and business investment by denying mortgage financing and services to entire “red-lined” communities. (The flip side of “red-lining” was massive government investment in infrastructure and services that subsidized and promoted suburban sprawl and the white people who moved there (AKA “white flight”) and were able to own their homes as a result of subsidized mortgages).

We are still suffering the racist legacy of red-lining, which continues to shape the land use patterns and economic development of entire metropolitan regions, effecting everything from segregated schools to the huge wealth and income disparities between black and white people.

To compare a bill designed to promote environmental justice by limiting pollution to already overburdened poor and/or minority communities to the historical practice of racist red-lining is deeply cynical and beyond the pale.

In the current context, it is simply unacceptable. Words matter.

That’s like a police union representative claiming that cops are being “lynched” by “mobs”.

Folks need to contact NJBIA and demand that Cantor apologize for what, at best, is a historical lie and gross insensitivity.

NJ environmental groups have their heads up their asses – again

So busy providing cover for Gov. Murphy they’re blind to corporate power

Perhaps folks missed a critical point that was buried in all the platitudes, but just yesterday, a broad coalition, which includes NJ environmental groups – Jersey Water Works – was given an Op-Ed platform at NJ Spotlight, see:

• Op-Ed: Now More than Ever, Our Health Depends on Access to Clean Water

That Op-Ed opportunistically and cynically used COVID as a new found justification for their longstanding Foundation and corporate funded self serving project that seeks investments in clean water infrastructure.

That COVID opportunism alone is bad enough, but buried in all the platitudes, was a shameless attempt to obtain a publicly funded bailout of lost corporate revenues and profits.

Adding insult to injury, that shameless corporate bailout proposal was wrapped into a program purporting to benefit low income people:

The recommendations would first ensure that everyone can access water by extending the suspension of water shutoffs until 120 days after the end of the declared health emergency, waiving late fees, reconnecting service, and helping low-income water users pay arrears after the shutoff moratorium ends.

Note that JWW wants those “arrears” paid. They are not letting poor people off the hook.

And here’s the way those “arrears” would be paid, including a bailout of ALL the revenue and profits water companies lost during the COVID shut down, under the guise of a “relief program”:

The recommendations also proposed a relief program for water and wastewater utilities. State leaders could use a portion of available state and federal COVID-19 relief funds to offset water and wastewater utilities’ lost operating revenues.

Did you get that?

Let me repeat: private water companies, acting through a broad “collaborative” which includes NJ environmental groups, are using a public health crisis as justification for a “relief program” that would guarantee their revenues and profits would not be reduced as a result of the COVID emergency shutdown.

Did the environmental groups that are members of the Jersey Water Works coalition sign off on that corporate “relief program”?

This corporate bailout proposal – a recommendation to Gov. Murphy – seems to have generated no pushback.

I say this because just one day after this Op-Ed ran, NJ Spotlight today reports that Gov. Murphy has abandoned his commitment to provide $80 million for lead line replacement, see:

• Replacement of Unsafe Lead Service Lines Delayed by Pandemic’s Economic Fallout

After they signed off on the JWW coalition’s corporate bailout request, NJ Future had no problem with this:

“The short-term outlooks pretty bleak,’’ conceded Gary Brune, policy manager at New Jersey Future, an organization that has been in the forefront of having the state better manage its issues with water infrastructure. “Obviously, the lead proposals haven’t gone anywhere.’’

After they signed off on the JWW coalition’s corporate bailout request, Environment NJ had no problem with this:

“The budget crunch is painful and it’s going to hurt everybody,’’ said Doug O’Malley, director of Environment New Jersey. “Everything has changed. It does feel like lead isn’t on anyone’s radar screen.’’

Clean Water Action is a member of the JWW collaborative. Their consultant Dave Pringle had no problem with this:

“It’s really a tough situation,’’ said Dave Pringle, a consultant for Clean Water Action. “We clearly don’t have the money for the things that need to be funded.’’

WTF are these people thinking?

They make no demands for progressive ways to finance budget deficits caused by the COVID emergency – like special one time tax increases on the wealthy and corporations – or progressive ways to allocate any necessary austerity measures – like cuts to police and prisons and corporate subsidies – yet they swallow, with no resistance, cuts to public health programs targeted at poor and black people while they endorse a private water corporation bailout under the guise of a “relief program”.

What world do they live in?

PSE&G Seeks DEP Waiver Of Environmental Regulations For Energy Infrastructure

NJ Gov. Murphy Used The Same COVID Pretext As Trump

Two important NJ based observations that you’re not likely to get in NJ media.

Yesterday, President Trump issued another Executive Order that attacks and rolls back key environmental regulatory protections.

Of course, this Order is being blasted by environmental groups and widely correctly reported by national media as another radical Trump outrage on public health and the environment.

This most recent Trump attack is targeted at the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Clean Water Act (CWA). It cynically uses the COVID crisis to justify “emergency” exemptions and waivers, which is obviously an Orwellian pretext.

Here is the NEPA language – very smiler language is used for ESA and CWA rollbacks:

(b)  To facilitate the Nation’s economic recovery, the heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.

The scope of the Trump Order is broader than specifically attacking these 3 core environmental laws.

It broadly seeks to waive virtually all regulatory requirements. Section 9 directs that the “heads of all agencies”:

shall review all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment (including waivers, exemptions, or other streamlining) with regard to agency actions pertinent to infrastructure, energy, environmental, or natural resources matters;

But what you won’t read or hear from NJ media – or from NJ environmental groups who cheerlead for Gov. Murphy and generally defer to PSEG money and power – are two things:

1) NJ Gov. Murphy has used the same cynical COVID pretext as Trump to suspend NJ DEP enforcement of environmental regulations, something that has not been reported by the NJ press corps, see:

• NJ Gov. Murphy Suspends Enforcement of Environmental Regulations During Covid

2) NJ’s hometown corporate utility PSE&G – frequently portrayed in media as environmentally friendly and progressive on public policy and regulatory issues – is seeking the exactly same regulatory rollbacks by the NJ DEP as President Trump just enacted.

The NJ DEP is currently developing regulations to address climate change (here is DEP’s PACT website – more to follow on that).

PSE&G has weighed into the DEP PACT regulatory process to request regulatory relief for what they call “public interest”.

PSE&G hypocritically likes to portray themselves publicly as pro-environment and a responsible corporation, but behind the scenes they are as rabidly anti-environmental regulation as the most polluting chemical industry.

PSE&G wrote this to DEP:

“Particular attention should be focused on the potential to include a Public Interest Provision that would give NJDEP the ability to expedite approvals and provide certain exceptions for projects that support the broader goals of the Administration’s Climate Adaptation and Clean Energy goals. Energy infrastructure and offshore wind development onshore are examples of the types of projects that should be included.

To further this process and provide a foundation for the discussions in future meetings, PSEG proposes the follow language for consideration by the Department for inclusion as necessary, in the regulations under review.

“New Jersey is implementing a range of policies that will lead to infrastructure projects that would otherwise be subject to restrictions under these regulations. Based on a determination of public benefit/ societal need, in alignment with the policies put forth in the EMP, RGGI regulation and the provisions of the GWRA, the Department shall retain the flexibility to approve these projects and/or limit regulatory requirements.”

Will the Murphy DEP fold and accommodate PSEG profits?

Will PSEG be held accountable by NJ environmental groups and media for their Trump like attack on environmental laws?

We’ll keep you posted, but we’re not holding our breath.

NJ DEP Does Not Even Have a Section 401 Water Quality Certification Program

While Trump directs regulatory rollbacks via Executive Order, Gov. Murphy is silent

[Update below]

Yesterday, the Trump EPA issued a final rule that attacks the power of States to protect water quality, known as the Clean Water Act’s Section 410 Water Quality Certification (WQC) (see NY Times story:

• E.P.A. Limits States’ Power to Oppose Pipelines and Other Energy Projects

Back on April 10, 2019, President Trump issued an Executive Order that directed EPA to roll back the State’s power under the Clean Water Act Section 401 WQC.

The Trump administration’s motives and policy to promote fossil energy development are openly admitted by EPA: (see page 8)

We’ve been writing about the Section 401 WQC for 8 years now, urging NJ environmental groups to focus on this powerful tool, urging the media to report on it, and documenting NJ DEP’s failure to implement a 401 WQC program (most recently in the DEP’s NESE Raritan Bay pipeline fake “denial”), so we’ll be brief today.

While other states – like New York and Connecticut – have aggressively used the State Section 401 WQC power to kill several pipelines (that’s why the Trump administration and their energy industry friends are seeking to kill it), the NJ DEP has done nothing with this power and does not even conduct a review of water quality impacts when they issue a WQC.

Under NJ DEP’s Freshwater Wetlands regulations, the WQC is merely an administrative appendage to a wetlands permit for projects subject to the 401 WQC requirements, (see NJAC 7:7A-2.1

But there are no “standards” “in this chapter” (i.e. the wetlands rules) that apply to the water quality impacts or whether a project’s impacts would comply with NJ DEP’s surface water quality standards, including the anti-degradation policies, protection of existing and designated use mandates, and numeric and narrative standards designed to assure protection of the physical, chemical, and biological characteristics of water quality.

[Update: the failure to include enforceable SWQS standards is not an oversight or a gap. It is an intentional policy NOT to enforce SWQS.

Instead, under NJ DEP regulations, the DEP relies exclusively on BMP’s and mitigation to satisfy compliance with surface water quality standards.

If a project installs BMP’s – which DEP presumes protect water quality and comply with standards, even with no site specific scientific evidence or demonstration that this is true –  (and the project mitigates or compensates for unavoidable adverse impacts) it’s good to go and is approved.

Because DEP’s rules lack SWQS or other standards, they can not be enforced and DEP has no authority to deny a permit or WQC and they never have. The best example of this is I’ve written about is the DEP’s Forestry Wetlands BMP Manual. But here is that policy, explicitly included in the definition of BMP under the wetlands rules:

“Best Management Practices” or “BMPs” means methods, measures, designs, performance standards, maintenance procedures, and other management practices which prevent or reduce adverse impacts upon or pollution of freshwater wetlands, State open waters, and adjacent aquatic habitats, which facilitate compliance with the Federal Section 404(b)(1) guidelines (40 CFR Part 230), New Jersey Department of Environmental Protection Flood Hazard Area Control Act Rules, N.J.A.C. 7:13; the Department’s Storm Water Management Regulations, N.J.A.C. 7:8; the Standards for Soil Erosion and Sediment Control in New Jersey, promulgated by the New Jersey State Soil Conservation Committee at N.J.A.C. 2:90; and effluent limitations or prohibitions under Section 307(a) of the Federal Act and the Department’s Surface Water Quality Standards, N.J.A.C. 7:9B. Examples include practices found at 33 CFR 330.6, 40 CFR 233.35(a)6, the Department’s Flood Hazard Area Technical Manual, and “A Manual of Freshwater Wetland Management Practices for Mosquito Control in New Jersey.” The manuals included in this definition are only a partial listing, and interested persons should contact the Department for the most up to date list.

That vague phrase “facilitate compliance with” is intentionally written that way, to dodge a frontal legal challenge and to provide a plausible deniability for failure to enforce the SWQS. DEP can always claim that in theory they reserve the right to enforce the SWQS, but in practice they NEVER DO SO. In practice, DEP has no 401 WQC review process (policies, standards, criteria, methods, procedures) so they never could do so. ~~~ end update]

To understand this NJ DEP failure to implement a 401 WQC program, just compare the DEP’s Raritan “denial” with the New York DEC’s denial (as I did in this post) (or any of the hundreds of prior WQCs issued by DEP).

In response to the Raritan post, I got a detailed set of questions from a local watershed group. Here is my reply: