WolfeNotes.com

NJ Still Has No Climate Adaptation Policy, Plan, Planning Process, or Regulations

Corporate Giant Suez Fills Void

Ad Hoc permit imposed 500 year storm for wastewater not mandated for dam safety

The little known NJ Water Supply Advisory Council (WSAC) will meet next Friday in Lawrenceville. The WSAC meets monthly, typically in a sparsely attended DEP or USGS conference room.

WSAC historically has kept controversial and important policy discussions confined to a small circle of industry engineers and DEP regulators and remained below the media radar, except for a brief period during the Christie administration, during the controversy regarding DEP’s failure to upgrade the State Water Supply Plan.

The WSAC was created by the Legislature to provide science based recommendations to DEP: (DEP WSAC website)

P.L. 1981, Chapter 262, also known as the Water Supply Management Act was enacted by the Senate and General Assembly concerning the management of water in New Jersey and ensuring an adequate water supply for its residents. Also established by this Act was the Water Supply Advisory Council (WSAC), which advises the Department concerning the next iteration of the New Jersey State Water Supply Plan (NJSWSP) and other related water supply resource issues.

The WSAC and DEP will receive a  hugely important briefing from Suez on a critical climate adaptation issue. Item #6 on the WSAC agenda:

Climate Resilience Evaluations in Northern New Jersey and Delaware –Alberto Quiroz Centeno, Suez

Suez is a large private corporation that provides water resource infrastructure, management and consumer services in NJ. I assume the agenda reference to “Delaware” is the Delaware River, not the State.

I also assume that their “climate resilience evaluations” have an inherent bias and conflict of interest, and will be self serving, not serving science and the public interest (see cost implications of the technical details below).

Climate resilience is a critical issue in NJ, as illustrated by the billions of dollars in damages caused by Superstorm Sandy and the billions of dollars in infrastructure upgrades that public and private utilities are seeking approval of  by the NJ Board of Public Utilities.

The Delaware River has huge flooding problems, as does north jersey.

In addition to the risks and impacts created by climate change, numerous studies have documented the need for billions of dollars of investment required to keep NJ’s crumbling water supply, wastewater, stormwater, and dam infrastructure functioning safely.

Shockingly, despite these huge environmental, safety and financial impacts, the State of NJ still has no statewide policy, no plan, no planning process, or no regulations to address climate change (adaptation or emissions mitigation) or critical infrastructure.

(The Murphy DEP recently embarked on a locally focused voluntary regional coastal resilience plan, but that process is small bore, voluntary, locally based, not statewide, not comprehensive, and not linked to State laws and DEP planning and regulatory programs. This is a “silo” structured & privatized prescription for failure by design).

(Similarly, DEP’s “Asset Management Guidance”, despite including Sandy funds, shockingly fails to even consider climate change impacts on infrastructure. However, that Guidance does stress the importance of public involvement – but cynically, largely to generate public support to justify “full-cost utility rates“, not educate the public about the problem – something lacking in the Suez work

Public Outreach

Explaining the importance of asset management to the decision makers and the public is essential because the benefits of a successful asset management plan are realized over time and may not be readily apparent (i.e. the number and severity of emergencies minimized/avoided). Therefore utilities should consider working with NJDEP to do appropriate public education in conjunction with asset management planning efforts. Communicating the successes and realized benefits (e.g. the reduced costs of proactive maintenance vs. emergency costs and service disruptions) is essential to justifying full-cost utility rates and retention of sufficient revenues to ensure long-term capital reinvestment and system viability.

Importantly, the DEP Asset Management Guidance does indirectly address climate change impacts, but climate is not mentioned and the scope of the application of the technical infrastructure issue with respect to the 500 year design storm is extremely narrow (e.g. it does not address the volume of rainfall and runoff from a 500 year storm, or other relevant projected climate impacts – see technical end note):

So, the upcoming WSAC briefing on climate resilience fills a very important policy and planning void.

Because I am unable to attend this important meeting, I wrote to DEP to ask the following questions at the meeting.

I hope the media and my former environmental and climate colleagues attend this meeting and ask similar questions (particularly in light of a recent Rutgers/Eagleton poll which found that NJ residents lack knowledge of climate change).

1) Why is a private company, Suez, doing this kind of critical climate adaptation and infrastructure work on their own with no public knowledge or involvement, instead of DEP conducting the work in the context of either the Water Supply Master Plan planning process or a statewide climate adaptation planning process, which are public with public awareness and include public involvement?

This sounds like outsourcing essential public planning processes that are DEP’s responsibility under NJ State law.

2) Suez has touted their climate work in upgrading the Woodcliff Lake dam to consider climate change, see:

SUEZ IN NORTH AMERICA COMPLETES MAJOR SAFETY UPGRADE TO WOODCLIFF LAKE DAM

“With powerful storms like Sandy and Irene occurring more frequently in recent years, purveyors of water supply dams must do what they can to protect the integrity of their facilities. The infrastructure will now be able to withstand a storm event equivalent to nearly four times the intensity of Tropical Storm Floyd.”

Based on these Suez claims:

a) What was the “design storm” that formed the basis of the safety upgrades, purported to address climate change risks and impacts?

b) Who chose that design storm?

c) Does DEP have regulations that mandate a minimum design storm?

d) Since design storm frequency drives exponentially larger volumes of rainfall and runoff, the “nearly four times” linear metric used by Suez may be misleading. Can DEP and/or Suez provide the data to support these claims? i.e. the numbers on rainfall and stormwater runoff and lake storage capacity.

3. FYI, I reviewed the Feasibility study for the upgrade, see:

http://www.hillsdalenj.org/vertical/Sites/%7BFE916F8D-CA48-4788-B4B7-6A2BF8501398%7D/uploads/Woodcliff_Lake_Dam_Study_Report_2013-05-08.pdf

In Table 1 on page 18, a US Army Corps of Engineers Flood Protection Feasibility Study compares costs of 100 and 200 year design storms. Note the huge cost increases, from  $76 million to $116 MILLION.

In contrast, DEP recently imposed a 500 year design storm on a wastewater treatment plant, as NJ Spotlight reported, see:

STATE WANTS SEWER PLANTS TO PLAN FOR 500-YEAR STORMS, EXTENDED OUTAGES

In an effort to prevent raw sewage from spilling into New Jersey’s waterways, the state is beginning to require sewer plants to plan for 500-year storms and to prepare for extended outages of up to 14 days.

The new requirements are incorporated in draft permits issued by the state Department of Environmental Protection to wastewater treatment plants. They are part of an effort to deal with the recurring problem of untreated sewage mixing with runoff from storms, taxing the capacity of facilities to remove the pollutants, often to the detriment of rivers and bays. […]

“It’s extremely significant,’’ said Bill Wolfe, director of the New Jersey chapter of Public Employees for Environmental Responsibility, who first reported the changes on his blog, wolfenotes.com. “It will make a difference.’’

Why would DEP impose permit conditions for a 500 year design storm for a wastewater treatment facility and yet apparently not impose the same level of protection for dam safety and other water supply infrastructure? 

The USACE and local feasibility study for the Woodcliff Lake dam upgrade made no mention of DEP regulatory requirements or design storm frequency.

Could you clarify these issues and provide responses to these questions?

I appreciate your assistance.

Legislation Severely Narrows Historic Legal Doctrine That Provided Broad Public Rights

[Update below]

NJ Governor Murphy just signed legislation (S-1074 [4R] – P.L. 2019, c.81) that literally guts a magnificent legal doctrine that provided broad public rights, dating back to the Roman Empire.

The fact that this debacle is being reported by media and praised by some coastal groups as a move that “strengthens public access” is an outrage beyond Orwell, and an illustration of, at best, gross incompetence if not downright malfeasance.

Let me back that harsh criticism up.

The Murphy law severely narrows and weakens the Public Trust Doctrine, a legal doctrine that preceded The Magna Carta, considered the foundation of western law:

“the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.^[4]

The Public Trust Doctrine is similarly a foundational doctrine. As elucidated in the NJDEP Handbook (emphases added)

Under longstanding legal and governing principles, fundamental individual and collective public legal rights, “natural rights”, such as Constitutional rights to free speech, religion and assembly, are not to be subject to the “laws of nations” and must not be allowed to be stripped by majorities and narrowed by Legislation. (Wiki)

Natural and legal rights are two types of rights. Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal and inalienable(they cannot be repealed by human laws, though one can forfeit their enforcement through one’s actions, such as by violating someone else’s rights.) Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws).

That’s why the First Amendment prohibits Congress from enacting laws to limit fundamental rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Could you imagine the furious reaction if President Trump and Congress attempted to pass a law to limit the people’s First Amendment rights to free speech, religion or assembly?

So, by definition, the mere fact that Governor Murphy and the NJ Legislature enacted statutory law to limit the scope and weaken the protections of this magnificent doctrine is a HUGE setback.

I tried to explain the origin of this debacle in these posts:

• Think Before You Litigate – Public Access Lawsuit Blunder Now Apparent

• NJ Court Decision Striking Down DEP Coastal Rules Is A Disaster For Public Access and The Public Trust Doctrine

 Summarizing what went so wrong:

1. The Christie DEP adopted Public Access regulations that repealed and weakened prior rules adopted by the Corzine DEP. Among other things, the Christie rules abdicated State responsibility and delegated State public trust obligations to voluntary local controls.

2. Coastal groups NY/NJ Baykeeper & Hackensack Riverkeeper filed an extremely ill-advised and poorly argued lawsuit against the Christie DEP rules.

They were represented by the law firm of Pringle, Quinn, Anzano, P.C. Just a glance at that firm’s Environmental Law practice area reveals an overwhelming pro-development focus.

To understand the implications of this, it would be as if a so-called “pro-choice” women’s group challenged a State law restricting abortion rights and were represented by lawyers from The Thomas More Society.

There’s also good reason to believe that the Christie Administration – no friend of DEP power to regulate private property for public benefit – also poorly argued and weakly defended DEP authority to enforce the Public Trust Doctrine. In other words, they may have thrown the case.

3. The Appellate Division issued a devastatingly bad decision in 2015 (read it here), which concluded:

Case law that has developed regarding the public trust doctrine, including those which have expanded its reach to privately-owned property, do not support DEP’s contention that the Legislature implicitly delegated regulatory powers to the agency. DEP was not authorized to promulgate the Rules under the public trust doctrine.

4. The decision was appealed, but the NJ Supreme Court declined to hear the case.

5. The Legislature then began considering legislation to respond to the Appellate Division’s decision.

6. The legislation passed and signed into law by Gov. Murphy severely narrows the historic Public Trust Doctrine.

The Murphy law is even narrower and weaker than the Corzine DEP regulations that were rolled back by the Christie DEP rules that were struck down by the Court.

I challenge anyone to do a line by line review of the Murphy law and the Corzine DEP rules and reach a contrary conclusion (just one example: the Corzine DEP rules required that where it was not feasible to provide on-site pubic access (e.g. a refinery), then landowners had to contribute to a fund or otherwise provide offsite public access).

Even the sponsor of the legislation admits this: (NJ Spotlight)

The law addresses business concerns about opening up access to critical infrastructure along waterfront areas, such as nuclear power plants, tank terminals and refineries that could be targeted by terrorists.

A more controversial issue concerns whether those facilities ought to be required to allow off-site access to waterfront areas when those sites are precluded because of security concerns. That question and other more contentious issues have been put off but are expected to be addressed in a second bill, according to Sen. Bob Smith (D-Middlesex), who sponsored the bill signed by the governor.

For Tim Dillingham of ALS to support this and for NJ Spotlight to describe this as “strengthening of public access” is sham.

But it could be even worse than sham.

Dillingham just received another $1 million grant from the Murphy DEP. According to DEP:

• The American Littoral Society, $1 million for a living shoreline and oyster reef project to improve water quality along Forked River Beach;

Just 2 days after  DEP’s announcement of that $1 million grant, Dillingham was quoted in Gov. Murphy’s press release praising the Gov. for signing the public access law:

“We thank Governor Murphy for signing this important legislation. It will strengthen the protection of the public’s rights to get to and enjoy NJ’s beaches and waterfronts,” said Tim Dillingham, Executive Director of the American Littoral Society. “It will provide new tools to deal with long standing public access problems. We look forward to working with the administration to getting this law implemented and getting New Jerseyans everywhere to the waters that they have a right to enjoy.”

So, there is an obvious appearance – if not in fact – a quid pro quo.

In addition, Ed Potasnak was also was quoted in the Gov. Murphy press release:

“As we get ready for summer and the influx of tourists from around the world coming to enjoy New Jersey’s amazing 130-mile coastline, one thing remains clear, our connection to our oceans and waterways is a fundamental part of our lives, our culture, and our economy,” said Ed Potosnak, Executive Director of New Jersey League of Conservation Voters. “Today, the Governor, continuing to build on his commitment to make New Jersey a stronger and fairer state signed the Beach Access bill into law. The Beach Access Law is a win for all New Jerseyans, it’s a win for our waterways and beaches, and it’s a win for our economy.  We thank Governor Murphy and the New Jersey Legislature for taking this important step.”

Potasnak is Executive Director of the NJ League of Conservation Voters.

NJ LCV endorsed candidate Murphy for Governor and spend $200,000 in support of his election during the campaign.

(Tim Dillingham of ALS is a former Board Member of NJ LCV as is Debbie Mans).

Again, another example of an appearance of a quid pro quo.

Shameful. Unethical. Perhaps worse.

[End note: for the cherry on top of this scam, consider that:

1. Debbie Mans was head of NY/NJ Baykeeper at the time of the filing of the ill advised lawsuit; and

2. Mans was on the Board of NJ LCV at the time LCV endorsed Murphy and spent $200,000 in support of his candidacy; and

3. Mans was approved by Gov. Murphy’s Office as a political appointee in the capacity of Deputy Commissioner of NJ DEP; and

4. Mans was a DEP policymaker during the negotiations of the public access bill the Gov. just signed; and

5. Mans was a policymaker at DEP when her fellow coastal colleague (who filed an Amicus in mans’s lawsuit) Tim Dillingham received a $1 million DEP grant; and

6. Mans was a policymaker at DEP when Dillingham was quoted in Gov. Murphy’s press release; and

7. Mans was a policymaker at DEP when her former NJ LCV Board member Potasnak was quoted in Gov. Murphy’s press release.

Shameful behavior.

[Update – 5/7/19 – In addition to violating the principle of legislation “authorizing” and narrowing a natural right, the legislation itself narrows the Public Trust doctrine:

1) The law narrows the scope of access – note the use of “certain”:

AN ACT concerning public access to certain public trust lands

2) DEP is delegated authority and given a “duty”:

The Department of Environmental Protection has the authority and the duty to protect the public’s right of access to tidally flowed waters and their adjacent shorelines under the public trust doctrine and statutory law.

But that “duty” is narrowed, in 3 ways –

a) “reasonable” is a vague and subjective standard:

“ensure reasonable and meaningful public access”

b) to the extent “practicable”: (a vague standard that weakened the original term “possible”):

the department has the duty to make all tidal waters and their adjacent shorelines available to the public to the greatest extent practicable”

c) the duty is limited to “protect existing public access” –

DEP does not have clear authority and a duty to expand existing public access.

3. The “necessary support amenities to facilitate public access” are specified only as “public parking and restrooms”.

“Amenities” are not defined and that term is subjective. An amenity is a luxury, not a necessity, so that is a huge difference. Does it include foot paths? Water? Shelter? Handicapped access? How much parking? What bathroom capacity? You get my point.

4. Public access is required as a condition of public funding (beach replenishment, dune maintenance, etc), but there are no standards, just a general “consistency” standard: i.e. “consistent with the public trust doctrine.” That will lead to case by case negotiation with DEP bureaucrats.

5. The exempt facilities in Section 3 (mostly for security reasons, e.g. refinery) are not required to provide compensation for and/or provide off-site public access.

6. Section 4 mandates that DEP include public access in a variety of DEP permits – but there is a huge loophole for “DEP approved municipal plans”, which DEP is required to consider:

In determining the public access that is required at a property, the department shall consider the scale of the changes to the footprint or use, the demand for public access, and any department-  approved municipal public access plan or public access element of a municipal master plan.

How many municipal plans has the Christie DEP already approved?

7. There is another prone to abuse exemption and loophole for:

those permits-by-rule, general permits, and general permits-by- certification for which, consistent with the public trust doctrine, public access would not be required;

8. There is another prone to abuse exemption – “emergency conditions”

Consider this exemption in light of the fact that former DEP Commissioner Martin issued an Order that attempted to deregulate reconstruction of infrastructure after Sandy under similar “emergency” conditions:

specific categories of projects which, due to the existence of an emergency condition, or a condition that poses a significant and immediate threat to public health and safety, shall not require individual review of public access pursuant to subsection a. of this section.

9. MARINA EXEMPTION:

If no public access is provided to the waterfront and adjacent shoreline prior to application for a permit or other approval, the department shall not impose new public access requirements to the waterfront or adjacent shoreline as a condition of the permit or other approval.

10. CAFRA loophole – Small scale projects below the CAFRA threshold (24 units) are not required to provide public access. There is no cumulative impact standard or consideration of multiple small projects.

11. Loophole – Risk exemption:

any areas to be closed to public access because of permanent obstructions or risks due to hazardous operations where no reasonable measures can be taken to avert those risks;

12.  Loopholes galore: what the hell does this mean?

Testimony Limited to The Usual Suspects – Critics Need Not Apply

Forestry Group Advocates Questionable Logging Policies

[Updates below]

The Senate and Assembly Environment committees will hold a rare joint oversight hearing on April 25 – no doubt as part of an Earth Week PR celebration – with the following objectives (according the the Committee hearing announcement):

The committees will meet jointly to receive testimony from invited guests concerning climate change mitigation, with testimony focusing on what steps the State is currently taking, and recommendations for future actions, to address greenhouse gas emissions.

The “invited guests” are as follows:

·         Board of Public Utilities – President, Joseph Fiordaliso

·         Department of Environmental Protection – Deputy Commissioner, Deborah Mans

·         Rutgers University – Dr. Tony Broccoli, Department of Environmental Science  & Dr. Robert Kopp, Department of Earth & Planetary Sciences

·         New Jersey Climate Change Alliance Jeanne Herb, Alliance Co-Facilitator & Executive Director Environmental Analysis & Communications Group, at the Rutgers University Bloustein School of Planning and Public Policy and Marjorie Kaplan, Alliance Co-Facilitator & Associate Director, Rutgers Climate Institute

·         NYU, Institute for Policy Integrity – Peter Howard, Economic Director & Denise Garb, Western Regional Director

·         America’s Forests – Jad Daley, President & CEO

I am deeply troubled, obviously, by the “by invitation only” format, especially at a time when the public debate is exploding over major movements and policy initiatives like The Green New Deal, Climate Strike, and Extinction Rebellion, where  a whole new generation engages the climate catastrophe and seriously questions a lack of real action to reduce greenhouse gas emissions to avoid catastrophic and irreversible climate tipping points.

Now is absolutely the worst time to limit public testimony to the usual suspects, whose failures have brought us to the brink of catastrophe.

Given the timing of the Murphy Administration’s impending release of the Energy Master Plan, it is also not an appropriate time to give the BPU President a platform, with no opportunity for rebuttal by scientists or public advocates of a moratorium on fossil infrastructure (and phase out of fossil).

I’ve written critically many times about NJ climate policy, including what I view as the Murphy administration’s weak appointment of Debbie Mans as DEP Deputy Commissioner and the timidity, self censorship and failures at Rutgers on climate science (see this most recent post), so I’ll say no more about all that in this post.

Previously, I’ve also criticized toothless pending legislation that is purported to address climate change. The upcoming hearing is a continuation of that sham.

But, after reading the invitation list, I also was very troubled by the inclusion of American Forests, a group I was not familiar with and that seems to have limited NJ experience and on the ground presence in NJ communities and forests, at a time when “forest stewardship” is extremely controversial.

So, I did a quick Google and was troubled by what I found, particularly about their recommended forestry practices, which led to the following letter to Senate Chairman Bob Smith:

Dear Chairman Smith –

While I applaud your efforts to conduct legislative oversight of current failed policies to reduce greenhouse gas emissions and to solicit testimony on new ideas to accelerate deep emissions reductions, I am writing for 2 reasons:

1) to object to the “by invitation only” format for the hearing and request that you open testimony up to all publics;

2) to raise concerns about the implications of the forestry policies advocated by American Forests, an invited guest with very limited NJ experience and to question the lack of balance on forestry policies.

Based exclusively on a review of American Forest’s website, they seem to be heavily corporate friendly, excessively pro-market, vague regarding regulatory frameworks, and advocate troubling forestry management practices.

https://www.americanforests.org/our-work/climate/

While the policy toolkit includes “state land use” and “regulatory” policies, those policies are not identified with any specificity and are dwarfed by the market tools and troubling forestry practices promoted.

Below are some troubling excerpts from their “policy toolkit” regarding forestry practices that they claim sequester carbon –

I left out all the market oriented stuff about carbon pricing, cap and trade, RGGI, grants, landowner and logging incentives, subsidies, and carbon offsets etcetera which are even worse and suggest a bias and unbalanced approach, see:

http://forestclimateworkinggroup.org/wp-content/uploads/2018/09/AF-FCWG-Toolkit-Digital.pdf

WOOD PRODUCTS

Wood is an extremely effective material for storing carbon. Long-lived wood products provide long-term carbon storage for nearly 100 MMt/CO2e every year—more than 10 percent of the U.S. forest carbon sink—while the working forests from which they were derived continue the growth and sequestration process.11 The increased use of wood in buildings has the potential to sequester and store over 32 million tons of carbon each year in the United States.12 Harvested forest products offer an additional climate mitigation benefit in the form of avoided emissions that occur when wood products displace the use of fossil- fuel intensive building materials, like steel and concrete. Thisadditional emissions reduction benefit from wood products is not reflected in U.S. EPA’s national GHG inventory for the land sector.

PATHWAYS FOR FOREST CARBON MITIGATION

Maintaining a strong base of healthy and resilient forests is the key to a reliable forest carbon sink. Several pathways are available to state and local policymakers to advance forest carbon mitigation while leveraging other forest ecosystem services such as forest products, air pollution abatement, drinking water supply protection, habitat preservation, and outdoor recreation. In the aggregate, the pathways below will keep forests as forests, expand forest cover, and promote forest health and resilience.

MANAGING FORESTS FOR INCREASED SEQUESTRATION

There are many ways in which forests can be managed to increase carbon sequestration, including carbon storage in wood products. Several forest management techniques increase the survival and enhance the growth of healthy trees that sequester the most carbon.19 Examples of forestry practices that strengthen forests and enable them to sequester and store more carbon include fertilizing soils; extending forest rotations to let carbon accumulate; accelerating restocking; managing competition to enhance overall growth; removing diseased trees in favor of species that grow faster and less impeded; and protecting climate-adapted tree seedlings that are most likely to thrive.

MANAGING FORESTS FOR RESILIENCE
A range of forest management practices can increase forest resilience to forest stresses that are worsening with climate change, thereby reducing potential carbon emissions and loss of future sequestration capacity. These resilience-oriented practices include but are not limited to forest treatments designed to reduce the vulnerability of forests to wildfire, and practices designed to protect forests from disease, insects, and drought. In fire-prone systems, these practices include prescribed burning and thinning to reduce wildfire severity and irreparable damage. In other systems, the primary opportunities to promote resilience include forest treatments and restoration practices that manage vegetation density and overall health. This will in turn reduce vulnerability to stresses like drought and pests that trigger increased mortality. In some cases, the forest practices that enhance sequestration (above) and increase resilience are overlapping. In many cases, forest owners and managers will want to plan these actions in tandem for the maximum carbon benefit.

FOREST PRODUCTS

Wood products from well-managed forests store forest carbon andoffer lifecycle emissions benefits compared to alternative products thatare more fossil-fuel intensive, such as aluminum and steel. It is important that carbon accounting for forest practices described above fully credits the carbon storage accomplished through wood products. This can be enhanced by helping landowners and managers better understand the storage potential in different wood products, and how they might optimize the carbon storage potential within the forest products carbon pool as part of an overall management strategy. Further, promoting forest product utilization can provide a market-based incentive to stimulate forest practices where they are needed to achieve forest health and resilience, such as thinning overstocked forests to reduce fire risk. This includes actions such as adjusting building codes to increase wood utilization, providing tax or other financial incentives for wood utilization in construction, and marketing promotions that highlight the climate change benefits of wood.

The above policies and forest management practices advocated by American Forests are deeply troubling and would result in expanded logging of NJ forests under the guise of carbon sequestration and RGGI funding.

I strongly urge you to include alternative perspectives on forest preservation and climate change to balance these views.

Respectfully,

Bill Wolfe

[Update 1: 4/18/19 – Here is NJ Senate Democrats cursory reply denying my request to open the hearing:

Hi Bill:

 Yes, we are sticking with the list of invited witnesses.  I suspect there will be more climate change hearings that will have a more open format. ~~~ end update]

[Update #2 – 4/22/19 – NJ Spotlight reports significant delay by BPU in releasing a draft Energy Master Plan (EMP). Climate emergency, fossil moratorium & phase out, and delay in EMP must be a critical focus of this hearing.

Green groups must focus on the fact that Gov. Murphy does not need to rely on the BPU EMP to impose a moratorium on new fossil infrastructure. Gov. Florio imposed a Moratorium on new garbage incinerators via Executive Order #8. That Order established an Emergency Task Force and gave them 120 days to issue recommendations to transform policy and regulations to make incineration an option of last resort and maximize source reduction, composting and recycling. Murphy can do the same on energy infrastructure and policy.~~~ end update]

Just as Murphy BPU About to Release Its Energy Master Plan, A New “Green Campaign”

Divide, Distract, and Divert

To be clear at the outset to avoid any confusion about the title of this post –  this is NOT a criticism of The Green New Deal.

Just the opposite –  I strongly support a Green New Deal – and urge folks to make it a top priority, get behind that effort and do the work to build the public opinion and political power and support necessary to make it a reality.

In fact, if I could pick just 3 things to focus and work on, they would be: 1) The Sanders campaign; 2) the Green New Deal; and 3) demanding that Gov. Murphy impose a moratorium of new fossil infrastructure and that the Murphy BPU Energy Master Plan provide a technically credible and financed path with regulatory teeth to phase out fossil and mandate 100 renewables by a date certain.

With that in mind, now let me get to the topic of this post.

The Murphy Administration’s Board Of Public Utilities is about to release its draft Energy Master Plan:

The New Jersey Board of Public Utilities (NJBPU) serves as the lead agency and is tasked with the development and oversight of the State’s EMP Committee. To achieve the Governor’s ambitious energy goals, the EMP Committee is organized into five work groups. While the work groups are composed of state agency members, there will be ample public opportunity to comment through a robust stakeholder process. The first opportunity will be a series of stakeholder meetings in September. Following the meetings, the work groups will develop a draft plan and again solicit public feedback in spring 2019, with final presentation of the 2019 Energy Master Plan to Governor Murphy by June 2019.

Yet, despite this critical timing – when activists should be ramping up public engagement to pressure the administration – especially regarding priority #1 which is a demand for Gov. Murphy to impose a moratorium of new fossil infrastructure – the media and “green” activists seem to have gone mute.

No, it’s worse than mute.

Perhaps emulating the national Democrats in declaring another Presidential candidate – the NJ Greens just announced and are working on a new “NJ Green” campaign.

Great fucking timing, eh?

The corporate wing of the national Democratic Party seems to prefer to lose to Trump than to get behind a coalition of left progressives, Democratic Socialists, and the Sanders campaign.

[Update: Jut read this NY Tines story that provides more evidence of that. ~~~ end update]

So, instead of the same cynical corrupt strategy they got caught using in 2016 to sabotage Sanders, this time around they are putting up niche candidates, each seemingly designed to drive a wedge and/or peel off what should be a faction in the Sanders coalition.

That is a losing strategy.

For God’s sake, yesterday I listened to the New Yorker radio hour on NPR interview a Presidential candidate – whose rise none other than Obama had predicted – a young, unknown gay, former military, Harvard educated, charismatic, Mayor from Indiana. This guy’s flavor of the month – I mean top priority – was democratic reform. (Did I say he was young and focused “inter-generational equity”? An obvious move to peel off Sanders’  Sunrise Movement folks, and play to the reactionary resentments of libertarians like the Google Tech heads about their burdens in paying for Social Security and health care).

Today, NPR reported that Ohio Congressman Tim Ryan just announced – are there 17 or 18 now? Does that mean Biden is dropping out of the bid for chasing the so called lost white working man’s vote?

But let’s get back to the topic of this post.

Here’s the email I was just forwarded that prompted the post (not surprisingly, the “greens” who wrote it didn’t send it to me, knowing I’d probably write this harsh criticism):

Do you think it’s time that your rights to clean air, pure water, and a healthy environment are protected in the New Jersey State Constitution?

Join us for an in depth conversation about the proposed New Jersey Green Amendment, how it can help New Jerseyans, and how you can get involved in its passage.

Featured speakers:
Maya van Rossum, the Delaware Riverkeeper
Elliott Ruga, NJ Highlands Coalition
David Pringle, David Pringle Associates
Jeff Tittel, NJ Sierra Club

And they are featuring speakers Eliot Ruga (a know nothing former TV technician) and Dave Pringle (a discredited and unprincipled transactionalist collaborator with Gov. Christie).

Is this new “Green Campaign” the product of a Foundation grant?

If you want context for this campaign and its likely results, look no farther than to Pennsylvania.

There, these same “green” activists won a huge State Supreme Court victory when the Court issued a decision on a constitutional question that effectively empowered local government to use land use controls to ban fracking.

So what did they do with this huge win?

They proceeded to do virtually nothing to organize a real statewide campaign to work with local government to ban fracking! But instead they focused on FERC and federal lawsuits.

Now, they do the top down opposite in NJ, and at exactly the wrong time, and with the wrong people.

How much worse can it get?

Governor Murphy and the Legislature Are Not Serious On Climate Catastrophe

• It was not the Department’s intent to establish CO2 emissions permitting and regulatory requirements through the proposed amendments. The Department has modified the rules on adoption to except CO2 from existing air pollution regulatory and reporting requirements. ~~~ NJ DEP, 2005

I preface this post with the DEP statement above to illustrate what would actually need to get done if the Governor and Legislature were serious about actually achieving reductions in greenhouse gas emissions.

They would have to start with the reality that DEP currently has the statutory authority to regulate greenhouse gas emissions – including methane and so called “short lived pollutants” – and the authority to mandate reductions and to impose meaningful GHG air pollution emissions fees (currently $122/ton – compared to a paltry RGGI allowance price of about $4/ton).

But instead of implementing and enforcing that authority to achieve the legislature’s GHG emissions reduction goals, the DEP explicitly exempted GHG emissions from regulatory requirements and air pollution emissions fees.

But instead of dealing with that reality, the Governor and the Legislature are intentionally denying that reality, misleading the public by creating fake solutions, and the media is knowingly allowing them to do so.

So, we begin with the latest fraud.

Shortly after he attempted to sabotage the campaign to call on Gov. Murphy to impose a moratorium on new fossil infrastructure, Tom Gilbert is now flat out lying about proposed climate legislation and NJ Spotlight is providing a platform for him to do so.

(We’ll jump the gun with this teaser:  do you recall that Chairman Smith initially justified this bill and NJ Spotlight swallowed that and originally reported this bill as “going after methane” and “short lived pollutants”? That was purported to be a big deal. Well, all that methane and short lived pollutant ‘comprehensive strategy” stuff in Section 6 has been quietly deleted from the amended version of the bill just passed by the Senate. In contrast to NJ Spotlight’s stenography, we called BS on that – and a decade of lies – at the outset. That’s why it was not mentioned by NJ Spotlight in today’s story – to do so would validate our criticism. But instead of admitting that they were duped and got it wrong, NJ Spotlight trots out Mike Catania and poses him as a critic. This is cynical and it misleads readers, as we explain below.)

I’ve previously written about the original introduced version of the proposed legislation to explain its flaws (see this and this). The Senate passed an amended version, S3207[2R], see below for the significance of those unreported amendments.

So today I want to drill down on a debate about the amended version of the bill passed by he Senate as reported in today’s NJ Spotlight story to illustrate Gilbert’s lies.

After finally criticizing the actual performance of the Murphy administration in walking the walk on their climate rhetoric about reducing GHG emissions, characterizing the performance record as “setbacks“, NJ Spotlight described the debate on the bill as follows:

The setbacks have drawn notice from New Jersey lawmakers. On Monday, the Senate approved a bill (S-3207) that aims to ensure the state is on target to meet the goals of its original 2007 Global Warming Response Act. It would require the DEP to monitor and report greenhouse-gas emissions, and within a year recommend additional measures to curb pollution to achieve the 2050 goal laid out in the act.

But some say the bill falls short. “This bill is a smoke screen when it comes to dealing with carbon dioxide emissions,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “It does nothing to reduce greenhouse gas emissions.’’

Other environmental advocates were more optimistic. “This is much needed legislation to ensure the state takes meaningful steps to reduce emissions,’’ said Tom Gilbert, campaign director of Rethink Energy NJ.

He cited provisions requiring the DEP to set benchmarks between now and 2050 for curbing carbon pollution and requiring actions to reduce emissions to achieve the targets if monitoring shows the state will fall short.

This is not about “setbacks” – it is about huge failure and consistently misleading the public about that failure.

This is not a question of optimism (Gilbert) versus pessimism (Tittel).

This is about legal, regulatory, and scientific facts. About what the bill actually says.

The “provisions” of the bill that Gilbert cited do NOT “require actions to reduce emissions to achieve targets if monitoring falls short”.

That is a flat out lie.

Here is what the bill actually says in Section 3:

No later than 18 months after the department prepares and transmits the report as required pursuant to subsection c. of section 6 of P.L.2007, c112 (C.26:2C-42), the department shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et  seq.), rules and regulations establishing interim benchmarks necessary to achieve the 2050 limit, and measures necessary to achieve the 2050  limit and the established interim benchmarks.

First of all, the legal and regulatory reality is that the Legislature knows how to use words.

There is a huge body of environmental law loaded with many words that the legislature could use if the legislative intent were to authorize DEP to establish GHG emission limits and enforce them. The legislature chose to ignore all those legal terms of art and the entire body of environmental law and  DEP regulatory frameworks.

The vague term “benchmark” is not a “standard” and by definition is not legally enforceable on any GHG emission source.

The term “Measures” are not GHG “emissions limits“, or GHG “control requirements“, or GHG “efficiency standards” or “building codes” or ZEV, or “state of the art in pollution control” or BACT, MACT, or LAER or any other legal and regulatory definitions or terms of art used for decades in the body of law under the federal Clean Air Act and the NJ Air Pollution Control Act.

These terms apply to no individual GHG emission source or to any GHG emission source category or GHG emission sector. They trigger no DEP permit requirements or ai pollution emission fees.

Just like “benchmarks”, “measures” are NOT enforceable.

DEP can not develop “benchmarks” and identify “measures” and then enforce them based on these provisions.

Gilbert is either ignorant of all this or he is lying. Either way, he should realize that he is in over his head and just shut the fuck up.

Similarly, this section of the bill would amend Section 5 of the 2007 Global Warming Response Act.

Section 5 of the GWRA authorizes DEP to do the following:

• rules and regulations establishing a greenhouse gas emissions monitoring and reporting program to monitor and report Statewide greenhouse gas emissions
• identify all significant sources of Statewide greenhouse gas emissions
• monitoring and reporting of existing emissions and changes in emissions over time from the sources identified by the departments
• reporting the levels of those emissions and changes in those emissions levels annually,
• monitoring progress toward the 2020 limit and the 2050 limit
• require reporting of the greenhouse gas emissions

Statutory authorization by Section 5 of the GWRA for DEP to inventory GHG emission sources and to conduct monitoring and and to require reporting is NOT AUTHORIZATION TO SET ENFORCEABLE STANDARDS AND ENFORCE GHG EMISSIONS REDUCTIONS FROM EMISSION SOURCES.

Finally, NJ Spotlight did not report that the bill was amended on the Senate floor by its sponsor (Chairman Smith) to delete the entire section (Section 6) that addressed the alleged intent of the bill, i.e. to authorize DEP to develop:

a comprehensive strategy to reduce emissions of short-lived climate pollutants in the State.

NJ Spotlight initially reported that as a big deal. Remember they reported about “going after methane”? We called bullshit on that:

NJ Spotlight makes a big deal about the fact that the bill purportedly applies to and “goes after” methane –

Going after methane

Among other things, the bill would require the state Department of Environmental Protection to develop a comprehensive strategy to curb emissions of short-lived climate pollutants, such as methane. Methane, a component in natural gas that often leaks from pipelines, is much more potent that other greenhouse gas pollutants, such as carbon dioxide.

This is false and misleading.

Gilbert and cronies praised that. And Senate Democrats issued a press release touting that.

But we called bullshit on it and obviously have now been vindicated by the deletion of the entire section.

And just like that, the entire original focus and justification for the bill was completely deleted! With no mention of that in the NJ Spotlight coverage.