WolfeNotes.com

Murphy Administration Essentially Outsourced Policy Role To Private Group

Report on lead likely to provide platform for privatization & dodge key issues

Lead issue tip of iceberg in a collapsing water infrastructure & regulatory framework

Back in January, a private Foundation created and/or funded group who claims exactly 544 members called Jersey Water Works publicly announced – in a press release – that they would:

produce report of best practices and recommendations for eliminating lead from drinking water statewide.

So, at a critical time, this private group basically took on the challenge of developing State policy, as the Murphy administration and Democratic legislature abdicated the policymaking role and dodged accountability for multiple failures. Accordingly, the Murphy administration was glad to assign DEP staff to support this private group, instead of having to do the heavy lifting in developing a real response to the multiple crises involved.

[Update – 10/8/19: Just 2 days after I wrote this, I don’t think it’s a coincidence that NJ Senate Democrats held a press conference stressing what the stenographic media called a “sense of urgency“. They are especially desperate to avoid any discussion of the privatization issue and their lead role in supporting it. But just like I said, it’s all BS:

Sweeney said New Jersey needs money to fix its water issues but he doesn’t want to raise fees. It’s something, he said, that could knock him out of office. ~~~ end update]

Jersey Water Works is another classic in NJ’s long history of allowing self selected, unaccountable, private sector special interest groups to frame the issues and dominate the public policymaking process. These groups are not subject to any public process, transparency, scientific peer review, or ethical restrictions. This is not only undemocratic, poor policy development, and ideologically biased, but it reeks of self dealing and conflicts of interest.

These “Stakeholder” groups typically form when a huge public controversy overwhelms state policymakers, exposes government negligence or failed regulatory oversight, and creates the need for political cover. Typically, the stakes are large: a huge pot of public money, deregulation, privatization, and/or economic opportunity is about to be created by government. Everyone then jumps on the gravy train.

Accordingly, following NJ longstanding pattern, JWW’s membership is dominated by a melange of those with huge economic interests in water: private water companies, consultants, banking & finance,  engineering and construction firms, real estate, and developers.

This economic development oriented private group is provided a veneer of legitimacy, “diversity”, “balance”, “building consensus”, and cover by the corrupt “transactional” planning and environmental groups that feed at the trough of government grants and Foundation funding (i.e. Sustainable NJ, NJ Future, American Littoral Society, Clean ocean Action, Clean Water Action, Environment NJ, et al).

Individuals and groups with an independent orientation (those groups that are membership funded and/or not dependent on in NJ state foundation funding) and those with a critical approach or what is viewed as a “radical” policy agenda (e.g. Sierra Club, Food & Water Watch, local grassroots community groups fighting for clean water, against privatization & toxic pollution, and active private citizens – i.e. anyone that works contrary to Neoliberal corporate interests) – are not invited and their views are marginalized.

So, with that said, first, let me set the policy context for this JWW Report.

The announcement came after increasing focus on: 1) longstanding multi-billion dollar water infrastructure deficits; 2) failure by State policymakers to enact a new revenue source to fund these deficits; 3) a series of drinking water crises across the state; 4) eight years of regulatory rollbacks and under investment by the Christie administration, and 5) passage of controversial privatization legislation by the Democratic legislature that deregulated and stripped voters of their rights to vote on whether or not to privatize their local water system.

The implications of how the privatization law stripped voters of their formal approval role was brought to light recently in Edison, where voters overwhelming rejected a proposed privatization plan, by over 84%, see:

• Edison’s voters force public control of water after yearlong political drama

As I’ve previously written, the JWW Report is very likely going to provide a platform for privatization (look for the euphemisms “public-private partnerships” and “asset management” to provide cover for privatization.)

But here are some important issues that I suspect that the Report will downplay or ignore completely (I’ll provide supporting text and links to these bullets over the ext few days. In the meantime, intrepid readers can word search Wolfenotes – I’ve posted stuff on almost all of this).

• Scientific flaws, gaps, and loopholes in current drinking water regulations and how they are monitored and enforced, including the federal EPA lead and copper rule and corrosion control that NJ DEP relies on
• Inadequate oversight, negligence, and lax enforcement by NJ DEP
• What really happened in Newark – what DEP knew and when they knew it
• Lack of resources and professional expertise & capacity at NJ DEP
• A specific new funding mechanism to adequately finance infrastructure upgrades (water tax)
• Regulatory mandates to consider environmental justice in DEP policy, rules, and decisions
• a regulatory based new Source water protection policy
• a new “precautionary” public health approach to DEP regulation, MCL’s, and “risk assessment”, including cumulative impacts, multiple chemical exposures, and multiple exposure pathways
• New regulatory restrictions on industrial polluters & sewage treatment plants
• New regulatory restrictions on land use and development
• New regulatory restrictions mandating retrofit of existing development
• Real enforceable timetables and milestones in combined sewer overflow permits
• New regulatory restrictions on agriculture and forestry (including bans of toxic pesticides and water quality based regulatory limits on fertilizers)
• Addressing over 500 “unregulated contaminants” in drinking water via what DEP has recommended as a “treatment based approach” (including new treatment requirements for drinking water plants AND wastewater discharges)
• Limits on surface and groundwater withdrawals – maintenance of river and stream flows
• Regulatory consideration of Climate change impacts on water resources and infrastructure
• New mandatory water conservation requirements
• Regulatory consideration of ecological impacts
• Enhanced DEP and State role in water supply planning and regulation
• Specific recommendations for new legislation and regulation

All of these issues in some way touch upon drinking water and the lead issue.

Frankly, the lead issue is the tip of the iceberg in a collapsing water infrastructure and regulatory framework.

More to follow when the Report is released.

Proposal Fails To Consider Climate Change and Energy Efficiency 

The Murphy DEP just extended the public comment period until October 22 on the DEP proposed  State Implementation Plan (SIP) For Regional Haze for the Brigantine Wilderness Area.

I don’t know why the public comment period was extended, but when DEP does so, it typically means either industry opposition or technical flaws with the original proposal.

[Note: Jeff Tittel of Sierra Club just sent this explanatory note:

We requested an extension and 2 week extension was granted .Taylor from Sierra was only commenter at the hearing we requested. ~~~ end Note]

On a positive note, SIP proposals are complex and typically take several years to develop, which can span administrations. Accordingly, sometimes an extension of a public comment period can provide the DEP Commissioner with the opportunity to reconsider policy in light of new science or different policy objectives than the prior administration that drafted a proposal.

Once again, the Murphy DEP has ignored an opportunity to regulate and reduce emissions of greenhouse gases.

Firstly, the SIP ignores climate change. Even DEP’s own Global Warming Response Act Report (2009) notes the linkages between climate change and ground level ozone, particulates, and haze:  (@ page 10)

The DEP GWRA Report discusses that science further on page 24:

That DEP Report was written 10 year ago and is based on science even older than that. That science has only become stronger over the last decade.

Secondly, the DEP SIP gives short shrift to the air quality impacts of energy efficiency.

I have very little technical background in this issue, but I decided to do a quick review of the proposal, for key issues I am somewhat aware of. Based on that cursory review, I submitted the below 5 comments. Here’s the story:

The Regional Haze SIP is required by the federal Clean Air Act: (DEP SIP, p.1)

I urge those more familiar with this issue to ask DEP why they extended the public comment period and whether the proposal can be strengthened, (as it was likely developed during the Christie DEP anti-regulatory days).

With that in mind and based on a cursory review, I submitted the following comments.There could be many additional issues, including implications for the Pinelands.

Greetings – I submit the below comments on the DEP’s proposed regional haze SIP:

1. Climate change

The proposal fails to address emissions of greenhouse gases which cause and contribute to global warming, ground level ozone, and regional haze.

Based on consensus atmospheric and climate science, one of the known impacts of global warming is an increase in ground level ozone and an increase in atmospheric moisture.

Based on consensus atmospheric and climate science, increases in ground level ozone, fine particulates, and atmospheric moisture are precursors to regional haze and reduce visibility.

Therefore, the proposal is deficient and must be withdrawn until the Department considers emissions of greenhouse gases and imposes control strategies to reduce those emissions (also see above excerpts of GWRA Report).

2. Energy Efficiency

The SIP states:

“This MANE-VU Ask requires that States consider and report in their SIPs on measures or programs to decrease energy demand using energy efficiency and increase the use within their state of Combined Heat and Power (CHP) and other clean Distributed Generation technologies including fuel cells, wind, and solar.” (p. 28, emphasis added)

The proposal failed to evaluate fuel cells, wind, and solar.

Additionally, today, NJ Spotlight reported on a study:

https://www.njspotlight.com/2019/10/nj-makes-small-gains-in-energy-efficiency-but-is-no-longer-a-leader-among-states/

“New Jersey, once a leader in energy efficiency, inched forward, ranking 17^th in the State Energy Efficiency Scorecard by the American Council for an Energy-Efficient Economy, rising one place in the rankings.”

The SIP proposal is flawed because it did not address and report on the energy efficiency programs and haze control strategies documented in the American Council for an Energy-Efficient Economy Report.

Despite these deficiencies, the proposal concludes that NJ is compliant with energy efficiency requirements.

“New Jersey has met the requirements for this Ask.” (page 29)

The DEP must analyze the air quality implications of distributed energy technologies and comprehensive energy efficiency and impose stricter regulation of those programs.

3. Prescribed Burns

The proposal states:

“Therefore, the MANE-VU Class I area states need additional help from the Environmental Protection Agency and Federal Land Managers in pursuing important reasonable emission control measures.30 These include, but are not limited to:

1. Federal Land Managers to consult with MANE-VU Class I area states when scheduling prescribed burns and ensure that these burns do not impact nearby IMPROVE visibility measurements and do not impact potential 20 percent most and least visibility impaired days;”

The proposal is deficient in addressing prescribed burn impacts.

Accordingly the DEP should impose a moratorium on prescribed burns until impacts are assessed and regulatory control strategies in place.

4. Agricultural Burns

The proposal states:

“New Jersey is required to consider smoke management techniques for the purposes of agricultural and forestry management in developing reasonable progress goals in accordance with 40 C.F.R. § 51.308(f)(2)(iv)(D). New Jersey addresses smoke management through its Open Burning rules, as follows:”

The DEP open burning rules are deficient because they do not assess or control agricultural burns.

The proposal does not adequately assess or impose control requirements for agricultural burns.

Accordingly the DEP should impose a moratorium on prescribed burns until impacts are assessed and regulatory control strategies in place.

5. Residential Wood Burning

The SIP proposal states:

“Fine particulate matter from wood smoke contributes to regional haze. Residential wood burning from woodstoves and fireplaces is one of the largest sources of direct fine particulate matter, PM2.5, emissions in New Jersey“ (emphasis added, p. 36)

Yet despite this finding, the DEP does not regulate residential wood burning and relies exclusively on public eduction:

“New Jersey does not regulate wood stoves and fireplaces” (p. 36)

The proposal is deficient in this regard. It fails to adequately assess or impose control requirements on credential wood burning.

Accordingly the DEP should impose a moratorium on residential wood burning until impacts are assessed and regulatory control strategies in place – or equivalent emissions reductions can be achieved and demonstrated via regulation of other emission sources.

Sincerely,

Bill Wolfe

McCabe DEP Pledges Continuity With Flawed Christie DEP Clean Water Policy

Three years late, the Murphy DEP today finally released the Draft 2016 Clean Water Act Section 305(b)/303(d) Report for public comment. (you can read the full Report and see this for how to submit comments).

As mandated by the federal Clean Water Act, the Report:

I’ll get to the water related contents of the Report in a future post, after I have time to digest this massive tome.

But for now, I want to make 2 important points, the first after reading the climate change section:

• 4.5 – Impacts of Climate Change on Water Quality (begins on page 85)

I)  Climate Whitewash

The history of DEP’s climate related policy is discussed on pages 87-88.

Remarkably, after discussing Gov. Corzine’s 2007 Global Warming Response Act and the DEP’s 2009 Report mandated by the GWR Act, that section has a 9 year gap – it omits 9 years of Christie climate denial and across the board climate related rollbacks, including, among many other things:

1) issuing Executive Orders #1-4, which: a) handcuffed DEP (i.e. a regulatory moratorium, red tape review, regulatory relief policy & cost benefit analysis), b) abdicated policy to local government (i.e. discouraging unfunded state mandates), and c) effectively blocked any DEP regulation of greenhouse gas emissions or adaptation measures (e.g. advanced notice of rule drafts provided to industry prior to rule proposal, giving them a heads up and chance to kill the baby in its crib);

2) abolishing the DEP Office of climate science and policy responsible for coastal resilience/adaptation. That Office was working on DEP led Statewide policy, planning, & regulation and reported directly to the Commissioner. 

The Christie DEP abolished that DEP led Statewide approach and replaced it with a policy of State abdication and DEP outsourcing of the adaptation program to a handful of local pilot “resilience” studies.

3) terminating NJ’s involvement in the RGGI program (after meeting with David Koch);

4) excluding the findings of climate science from his coastal “rebuild madness” plan in the wake o Sandy;

5) publicly calling climate change an “esoteric issue” that the public didn’t “give a damn about”;

6) directing DEP Commissioner Martin to issue an Order to deregulate reconstruction of public infrastructure wiped out by Sandy;

7) ignoring DEP’s Coastal Management Program’s 319 Coastal Assessment Report findings regarding “strategic retreat” from high hazard areas, putting even more people and property at risk. As we wrote;

Huffington Post first wrote about the history and that Plan in their superb November 2012 investigative piece:  Hurricane Sandy Damage Amplified By Breakneck Development Of Coast:

The intensity of development along the coast clearly influenced the scale of the disaster, said Bill Wolfe, a former analyst for the state’s Department of Environmental Protection who now leads the watchdog group New Jersey Public Employees for Environmental Responsibility.

“There needs to be an acknowledgement that we can’t keep on doing what we’ve done in the past,” Wolfe said. “We have to face up to the problem.”

8) failure to regulate or reduce greenhouse gas emissions; and

9) adopting an Energy Master Plan that promoted massive expansion of fossil gas infrastructure, killed off shore wind development and set back progress on solar and energy efficiency.

Readers should watch the award winning documentary “Years of Living Dangerously – Episode 5” for that history. Former DEP Commissioner Mauriello and myself – my interview starts at time 40:06 – are interviewed for that episode. 

The Murphy DEP report also very selectively presents DEP’s and other actions that are directly related to the above Christie rollbacks, without even once mentioning the Christie DEP rollback.

In order to sustain this whitewash, the Murphy DEP Report also had to omit Gov. Murphy’s own self declared keystone climate policy initiatives, including rejoining RGGI (which had the same water related implication as the 2007 GWRA DEP did mention in the Report), promoting off shore wind, and revising the Christie Energy Master Plan.

Get that? In Order to make the whitewash work and avoid exposing the Christie rollback record, the Murphy DEP actually had to omit Gov. Murphy’s signal climate policies.

DEP also omitted mention of the impacts of the Keep It Green Open Space diversion, which defunded DEP clean water programs discussed in the Report.

It is almost as if Bob Martin or one of his political hacks wrote the Murphy DEP Report.

This is remarkable. How does that happen?

How the hell did a dishonest, technical flawed, selective, incomplete and historically inaccurate Report like that – on THE most crucial issue of our time, climate emergency –  pass scrutiny and receive approval of the DEP management team?

It tells me that the Christie hacks and incompetent careerist bureaucrats are still embedded in the DEP bureaucracy.

II) Murphy DEP Continues Failed Christie Anti-Regulatory Policy

Second, I have written many times about how Murphy DEP Commissioner McCabe has pursued a policy of “continuity” with Christie DEP anti-regulatory policies.

This Report provide another stunning example of that McCabe failure.

The first paragraph of the Murphy DEP Report celebrates the Christie DEP anti-regulatory approach to water policy, including using manufactured scientific uncertainty to avoid compliance with the Clean Water Act and TMDL cleanup program, most notably in Barnegat Bay.

The Murphy DEP Report celebrates this horrible Christie DEP record as follows:

Why is the Murphy DEP continuing Christie DEP policies that set back progress on clean water for almost a decade?

We will be providing a more in depth review in future posts, but for now, are scratching our heads in response to another clear example of failed leadership, mismanagement and incompetence by Murphy DEP Commissioner McCabe.

End Note: the idiots at DEP even retained their OPRA secrecy lie – the disclaimer “DRAFT AND DELIBERATIVE” is splashed across the top of every page. The only reason that was put there was to deny OPRA requests for the document and the data – DEP does this to prevent the public from seeing how their reports change over time. There are often very revealing changes made.

The fact that they left it there either means the document got no management review, or DEP managers are OK with cynical legalistic attempts to frustrate the intent of OPRA.

The Pipeline Battle Is About Climate Chaos And Fossil Infrastructure, Not Open Space

The Battle Will Be Won By Solidarity, Activism & Holding Government Accountable

I want to make a few points of contrast to explain why the response by conservationists to the 3rd Circuit Court of Appeals decision on the PennEast pipeline is so wrong headed, selfish, counter-productive, diversionary, and outright dangerous. You can read that response by Michele Byers of NJCF here:

• OPINION: PENNEAST SETBACK A HUGE VICTORY FOR PRESERVED LAND IN NJ AND BEYOND

Yesterday, I wrote a post that began as a summary of my comments on fatal flaws in the PennEast pipeline permit applications, but, as I was writing it, I got interrupted by news reports of the 3rd Circuit Court of Appeals decision that found PennEast could not condemn State owned lands.

My original intent was to illustrate how all pipelines and fossil infrastructure could be killed by informed activists pressuring Gov. Murphy to impose a moratorium on approval of new fossil infrastrucure and then direct DEP to enforce the federal Clean Water Act by denying a Section 401 Water Quality Certificate.

As I’ve written, the precedent and model for this two step policy is Gov. Florio’s 1990 moratorium that ended construction of more garbage incinerators, statewide. Florio didn’t target or kill a single project, he killed them all.

Exactly like the Florio moratorium and Solid Waste Plan revision, the CWA 401 WQC regulatory tool can be applied to virtually all fossil infrastructure .

The strategy I laid out was a combination of activism, democratic accountability, and regulatory enforcement, with a statewide focus and objective to prevent climate chaos.

That post was intended to support the Empower NJ campaign to pressure Gov. Murphy to impose a moratorium on all new fossil infrastructure.

That pressure is building and it comes at a critical time as the Murphy BPU is seeking public input on and is about to adopt the Energy Master Plan and PennEast and other fossil permit applications are pending before the Murphy DEP .

In other words, the timing is critical because fundamental State policy decisions that effect the future of the climate chaos issue are about to be made.

We are at a critical moment when all focus and attention need to be on Gov. Murphy and the climate crisis. We need to educate and mobilize the public to act now. We need a laser beam focus on the tools to hold the Gov. accountable to. We need a unified voice and solidarity.

In contrast, Michele Byers wants opportunistically and selfishly to refocus the entire debate and take her open space ball and go home.

This is not about open space. There will be plenty of open space if the climate crisis hits irreversible tipping points and the earth becomes unable to support agriculture or rising temperatures make the earth uninhabitable.

Byers’ Op-Ed never once even mentions the climate emergency, the Empower NJ moratorium campaign, the BPU EMP, or the CWA Section 401 WQC pending before DEP.

Just the opposite, she takes the pressure off the Gov. and DEP by claims that the PennEast permits are “in limbo”, without even mentioning all the other pending fossil infrastructure permits before DEP.

If DEP permits are “in limbo” and the Court’s decision “protected open space” and “stopped PennEast in its tracks”, that provides an excuse for the elite Hunterdon County conservationists to take their open space ball and go home. No need to remain active on climate chaos. No need to lend support to state, national and global climate campaigns, from Empower NJ, to the Green New Deal, to the Sunrise Movement and Extinction Rebellion

Byers’ unconditionally praises Attorney General Grewal, when she should link the PennEast legal issues to statewide concern and be demanding that AG Grewal act to enforce laws to block all pending fossil projects, not cherry pick one.

The praise amounts to green cover for the Murphy administration.

Byers exaggerates the precedential value of the decision and falsely claims that the decision was “groundbreaking” (see my prior post for explanations).

Importantly, Byers neglects to mention the specific “workarounds” that the 3rd Circuit Court specifically identified, including land condemnation by FERC and legislation by Congress. These “workarounds” undermine the value of the decision in terms of killing the project – and protecting preserved lands, her single objective – and the public needs to understand the “workarounds” to prevent them from happening. So let me repeat what the Court actually wrote about “workarounds”:

But our holding should not be misunderstood. Interstate gas pipelines can still proceed. New Jersey is in effect asking for an accountable federal official to file the necessary condemnation actions and then transfer the property to the natural gas company.

Byers’ sole focus on lawyers and courtrooms disempowers activism and undermines democracy.

The Byers Op-Ed diverts attention from the climate issue, from the fossil moratorium campaign, from the BPU Energy Master Plan, and from the pending DEP permit reviews.

Byers writes selfishly about a single project in the backyards of her elite members and contributors.

She does not write in solidarity with activist working on a statewide moratorium.

And this selfish diversion comes at an absolutely critical time.

All this is not helpful – it is dangerous.

[End Note: I predicted and warned about exactly these kinds of problems over 4 years ago, see:

• A Land Trust Is No Place for A Hard Hitting Climate & Pipeline Campaign

[End Note #2 – In addition to the above political scandals, I want to emphasize that the legal rounds upon which the 3rd Circuit Court ruled are essentially reactionary, not progressive. The case was decided based on the 11th amendment “sovereign immunity” principle. That’s part of the “states right’s” doctrine, and it not only denies citizens access to justice to hold state officials accountable, but it has been used historically to exploit Native Americans. I would want no part of a win on those grounds, which are analogous to winning on “separate but equal” grounds. Shame.

Demand Gov. Murphy Issue Executive Order Imposing Moratorium On State Approvals of New Fossil Infrastructure

Demand Murphy DEP Enforce Clean Water Act

A Regulatory Roadmap Is Provided Below

NJ Attorney General Grewal and opponents of the PennEast pipeline are calling the US 3rd Circuit Court of Appeals decision a “major victory” and a “groundbreaking ruling” and that the decision “stops PennEast in their tracks”.

They are exaggerating, misleading the public, making factually false statements, and simply not telling the full story. The decision is not a “groundbreaking ruling”, not a “major victory”, and will not “stop the project in its tracks”.

By making these exaggerated and false claims, they are undermining activist efforts to block all proposed pipelines and all fossil infrastructure, to inject climate change in regulatory decisions, and to enforce the Clean Water Act.

First, with respect to the “groundbreaking” claim. A federal district court previously reached exactly the same conclusion on the proposed Potomac Pipeline, see:

• Columbia Gas Denied Right to Take Public Land for Potomac Pipeline

Columbia Gas’s lawsuit was unusual in that a private company tried to use the power of eminent domain to take public land. It claimed that power by virtue of the permit granted to the project by the Federal Energy Regulatory Commission.

The judge denied Columbia Gas injunctive relief because it found no substantive case, Upper Potomac Riverkeeper Brent Walls said in a statement delivered by live stream after the ruling. Private industry doesn’t have the right to file an eminent domain case against the state of Maryland, the judge found, because the state has sovereign immunity, he said.

[Update: Here is another precedent cited in the PennEast opinion that shows that PennEast was not a “groundbreaking” decision:

While the Supreme Court and federal Courts of Appeals have not addressed the precise issue that we have here – whether condemnation actions under the NGA are barred by Eleventh Amendment immunity – the one reported district court decision to do so held that Eleventh Amendment immunity is indeed a bar. In Sabine Pipe Line, LLC v. Orange, County, Texas, the pipeline company plaintiff argued that, because the federal government could exercise its eminent domain power to condemn State property, there was “ no reason to treat a delegation of the same authority any differently.” 327 F.R.D. at 139. The court disagreed. It explained that , like PennEast’s arguments, the plaintiff’s “theory of the case erroneously assumes that by delegating one power, [that of eminent domain], the government necessarily also delegated the other, [the ability to sue the States].”

Amazing that my Googling seems to have done better legal research – in turning up the on point Potomac Pipeline District Court decision – than the 3rd Circuit. ~~~ end update]

The NJ AG’s claim is more difficult to dismiss. It requires a legal analysis of the opinion itself. I’ll hold off on that for now. (I’ve since read the opinion, see relevant updates above and below).

But I will note that the Court explicitly stated that the decision was not a barrier and identified a “workaround”. (NJ Spotlight):

“Our holding should not be misunderstood,’’ the court said in its 34-page decision. “Interstate gas pipelines can still proceed… We simply note there is a workaround.’’ It remanded the case back to the district court for dismissal of the claims against the state.

[Update: Whoaa! The Court identified  a HUGE workaround – I find it very curious and highly misleading that the full text of the opinion on that “workaround” was truncated not included in the NJ Spotlight story. So here is what the Court actually wrote regarding “workarounds”. The 3rd Circuit wrote:

But our holding should not be misunderstood. Interstate gas pipelines can still proceed. New Jersey is in effect asking for an accountable federal official to file the necessary condemnation actions and then transfer the property to the natural gas company. Cf. Kelo v. City of New London , 545 U.S. 469, 480 ( 2005) (discussing how broadly the Supreme Court has defined “public purpose” under the Takings Clause). Whether, from a policy standpoint, that is or is not the best solution to the practical problem PennEast points to is not our call to make. We simply note that there is a work-around.

This means that pro-gas Trump administration – Trump has already issued an Executive Order seeking to strip States of Clean Water Act Section 401 authority over pipelines and EPA just proposed rules to do so – and the Trump FERC could condemn the property. How likely is that? Very.

In the alternate, the Court also identified another “workaround” by Congress. How willing are the “all the above” Obama energy state Democrats likely to join Republicans to create that “workaround”?:

PennEast protests that, because the NGA does not provide for FERC or the federal government to condemn the necessary properties, the federal government cannot do so. But one has to have a power to be able to delegate it, so it seems odd to say that the federal government lacks the power to condemn state property for the construction and operation of interstate gas pipelines under the NGA. In any event, even if the federal government needs a different statutory authorization to condemn property for pipelines, that is an issue for Congress, not a reason to disregard sovereign immunity. To be sure, such a change would alter how the natural gas industry has operated for some time. But that is what the Eleventh Amendment demands.

NJ Spotlight’s failure to include the full text of the Court’s “workaround” language did 3 bad things: 1) it allowed politicians like AG Grewal and useful idiots like Tom Gilbert to grossly exaggerate the impact of the decision; 2) it deprived and misled readers about crucial information, i.e. the need to monitor Congress and oppose any efforts on their part to pass legislation to meet the Court’s “workaround”; and 3) it gave a false sense of assurance to anti-pipeline activists that the pipeline was dead, when that is not the case .  ~~~ end update]

[Update: In an incredibly cruel irony – homage to Standing Rock – the PennEast pipeline opinion turned on Supreme Court cases denying the Seminole Tribe’s lawsuit against Florida and a Native American tribe’s legal arguments seeking payment of money they were owned by the State of Alaska:

As discussed below, see infra Part I I I- B.3, Congress cannot abrogate state sovereign immunity under the Commerce Clause, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59, 72-73 (1996), and because Congress enacted the NGA pursuant to that Clause, the statute cannot be a valid congressional abrogation of sovereign immunity.” […]

Looking in more detail at the caselaw, it lends no credence to the notion that the United States can delegate the federal government’s exemption from state sovereign immunity. In Blatchford, the Supreme Court dealt with this issue. In that case, Native American tribes sued an Alaskan official for money allegedly owed to them under a state revenue-sharing statute. Blatchford, 501 U.S. at 77 – 78. Relevant here, the tribes argued that their suit did not offend state sovereign immunity because Congress had delegated to the tribes the federal government’s ability to sue the States. ~~~ end update]

In a serendipitous coincidence, the same day the Court decision was announced, I wrote comments to DEP on deficiencies in the PennEast pipeline permit applications.

Below is that letter, and it focuses on a sure fire mechanism to kill the PennnEast pipeline: DEP can deny the Clean Water Act Section 401 Water Quality Certificate.

We’ve been writing about that and NY State and Connecticut’s 401 WQC denials, and criticizing NJ fools like Tom Gilbert for their failure to focus on it for over 4 years, see:

• NY Environmentalists Call On Gov. Cuomo To Use Clean Water Act Power to Kill Gas Pipeline

• Strategic Advice To NJ Pipeline Foes: Build A Public Campaign To Pressure DEP To Deny Clean Water Act 401 Approval

• Citizen’s Guide To Using The Clean Water Act To Kill Pipelines

Media should ask AG Grewal if NJ DEP is willing to pull that legal trigger.

From: Bill WOLFE <bill_wolfe@comcast.net>
To: penneastcomment@dep.nj.gov, “Tittel, Jeff” <jeff.tittel@verizon.net>, “Tittel, Jeff” <jeff.tittel@sierraclub.org>, jonhurdle@gmail.com, domalley <domalley@environmentnewjersey.org>, bill_wolfe@comcast.net
Date: September 10, 2019 at 4:58 PM
Subject: Public comment on PennEast deficiencies

Greetings – Please accept the following comments on the PennEast pipeline applications for DEP wetlands, stream encroachment and water quality certificate approvals.

I.  Permit process – Need to clarify formal pubic notice and comment and public hearing procedures

According the the Department’s September 4, 2019 letter, the application is deficient and not administratively complete.

However, the DEP indicated it would accept public comments at this phase of the permit process.

I am confused by that and request that the DEP clarify the permit procedure for the public. I am concerned that submission of public comments at this phase would appear to assist the applicant in correcting defects that warrant permit denial by the Department.

Will the Department provide a formal public notice and comment period and public hearing between the administratively completeness phase and the technical completeness phase? Will the Department provide formal public notice and comment period and public hearing after the Department deems the application technically complete? Will the Department provide a formal public notice and comment period and public hearing in the event the Department issues a draft permit? When does the mandatory 90 day land use permit clock begin? When does the Clean Water Act’s 1 year water quality certificate clock begin? Have any of these review clocks already begun?

II. Deficiencies

1. Anti-degradation policy for C1 waters

The DEP permit regulations mandate compliance with the DEP Surface Water Quality Standards: (emphases mine)

NJAC 7:7A-10.2 Standard requirements for all individual permits

[(a)]

(b) The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity:

[1.4]

5. Will not cause or contribute to a violation of any applicable State water quality standard;

The proposed PennEast pipeline would disturb and cross numerous DEP designated C1 streams. I have reviewed the PennEast compliance statement: ATTACHMENT G-2 – N.J.A.C. 7:7A Compliance Statement, which provides:

• Requirement: 5. Will not cause or contribute to a violation of any applicable State water quality standard;

Compliance: The proposed Project has been designed and will be constructed in a manner to comply with N.J.A.C. 7:9B (State Water Quality Standards) and adheres to the Statements of policy codified at N.J.A.C. 7:9B-1.5. Pursuant to N.J.A.C. 7:7A-2.1(d), a permit issued under the Freshwater Wetlands Protection Rules shall constitute the water quality certificate required under the Federal Act at 33 U.S.C. § 1341.

The compliance statement – and the permit applications as a whole – are deficient for the following reasons:

The regulatory standard “Will not cause or contribute to a violation of any applicable State water quality standard”  – particularly the word “contribute” – requires that the applicant demonstrate and the DEP evaluate background conditions (i.e. conditions effected by existing multiple source impacts and stresses) and the incremental impact of the regulated activity with respect to water quality standards.

Use of the term “contribute” also lowers the scientific burden regarding causation. The DEP is not required to base decisions on highly certain scientific mechanisms of causality, linking a pipeline impact with certainty to an adverse water quality impact and/or violation of water quality standards.

NJ DEP Surface Water Quality Standards include anti-degradation policies, general policies, designated uses, existing uses, numeric criteria and narrative criteria.

The applicant has not affirmatively demonstrated compliance with these standards, policies, and criteria.

The proposed pipeline crisis numerous DEP designated “Category One” (C1) waters. The anti-degradation policy for C1 waters is (NJAC 7: 9B-1.5(d)):

“Category One Waters shall be protected from any measurable changes (including calculable or predicted changes) to the existing water quality. Water quality characteristics that are generally worse than the water quality criteria, except as due to natural conditions, shall be improved to maintain or provide for the designated uses where this can be accomplished without adverse impacts on organisms, communities, or ecosystems of concern.”

Water quality is defined to include physical, chemical and biological characteristics.

The key phrase “measurable change” expressly requires quantification.

Under NJ DEP regulations, valid quantification requires sampling conducted in accordance with DEP QA/QC and sampling protocols and provision of statistically representative and scientifically valid data.

The key phrase “calculable and predicted changes” requires not only statistically representative and scientifically valid quantitative characterization of current water quality conditions, the use of the word “and” before “predicted changes” also mandates projection, or modeling, of future conditions.

Future conditions would include consideration of the potential impacts of climate change – temperature, rainfall, drought, and ecological responses.

Future conditions would include the impacts of allowable buildout under municipal zoning.

Future conditions would include the impacts of allowable buildout under DEP approved water allocation and wastewater capacity and groundwater & septic design standards regarding constraints on septic system density and locations.

The key phrase “existing water quality” requires a statistically representative and scientifically valid characterization of baseline physical, chemical and biological conditions.

Biological features of “existing water quality” and “existing uses” include all aquatic and aquatic dependent organisms, during all phases of their lifecycle, including their habitat.

The key phrase “impacts on organisms, communities, or ecosystems of concern.” requires a comprehensive ecosystem wide analysis.

The key word “shall be protected“ makes all of the aforementioned methods, standards, policies, and criteria mandatory.

The applicant has not affirmatively demonstrated compliance with the anti-degradation policies for C1 waters.

Water quality is dynamic. Dynamic conditions are an essential feature of “existing water quality” and projected future water quality conditions. Disturbance, stream crossings, and development impact future conditions. That’s why the regulations require consideration of “predicted changes”, including whether regulated activity “contributes” to a violation of a water quality standard.

For example, a valid C1 anti degradation compliance demonstration would require at least 4 quarters of QA/QC statistically representative and scientifically  valid data to characterize baseline “existing water quality” – physical, chemical, and biological characteristics and organism, community, and ecosystem scales .

In order to determine if “existing water quality” is “protected”, the DEP must know what existing water quality is.

The DEP must know what existing water quality is at each individual point of pipeline crossing or disturbance that may impact a C1 stream.

The applicant has failed to provide 4 quarters of statistically representative and scientifically valid data that characterizes “existing water quality” at every crossing or disturbance that may impact of a C1 stream.

In addition to not characterizing “existing water quality”, the applicant has not adequately conducted an impact analysis – including projections of future conditions – that is necessary to determine if disturbance or stream crossings will protect existing water quality, on a temporary or permanent basis.

The C1 policy does not allow for even a temporary change in (lowering of) existing water quality. The rules provide no basis for DEP or the applicant to distinguish between temporary, permanent, and/or irreversible adverse impacts.

Given the above serious deficiencies, the DEP may not determine that the application is administratively or technically complete.

Given these deficiencies, the DEP must require the applicant to provide QA/QC statistically representative and scientifically valid characterization of “existing water quality” and scientifically valid analysis of potential adverse future impacts.

The Department previously applied a Guidance document regarding disturbance of C1 buffers. Perhaps that Guidance document could serve as an initial framework for designing the required characterization of “existing water quality” and analysis of maintaining an avoiding potential adverse impacts on existing water quality.

Similarly, the Department has robust regulations and Guidance on water quality sampling, QA/QC, and protocols to assure statistical validity of data collected.

The applicant has not met these DEP standards.

2. Protection of Existing uses

The SWQS mandate protection of all “existing uses” of the waterbody:

“Existing uses shall be maintained and protected.” (NJAC 7:9B-1.5(a)6.)

“Existing uses” are broadly defined:

“Existing uses” means those uses actually attained in the waterbody on or after November 28, 1975, whether or not they are included in the Surface Water Quality Standards.

Th applicant has failed to provide a statistically representative and scientifically valid inventory and characterization of baseline “existing uses”.

This demonstration would include provision of 4 quarters of data and analysis of future conditions. See above comments on deficiencies in C1 anti-degradation policy for additional flaws in the “existing use” demonstration.

Therefore it is not possible for the DEP to determine if the pipeline project and regulated activity will protect all exiting uses.

3. Water Quality Certification

The applicant is required to demonstrate and the Department is required to determine if the proposed regulated activity complies with all water quality standards surface and groundwater) and will not cause or contribute to a violation of water quality standards – on a temporary or permanent basis.

The applicable regulations do not allow consideration of offsets, averaging or mitigation in making this demonstration an determination.

For the above reasons – and others I yet to comment on – the applicant has not met his burden and has failed to make a valid compliance demonstration and therefore the Department may not make a compliance determination and issue a water quality certificate.

I will be submitting additional comments regarding deficiencies in the application with respect to demonstration of compliance with water quality standards.

Respectfully,

Bill Wolfe