Search Results

Keyword: ‘infrastructure’

NJ Stormwater Utility Bill Includes Stealth Privatization Provisions

February 3rd, 2019 No comments

Will Gov. Murphy Follow Christie & Sign Another Major Infrastructure Privatization Bill?

Over a decade ago, NJ Democratic legislators privatized the DEP toxic site cleanup program, a radical reality just dawning on many NJ residents with toxic sites in their communities, see:

More recently, the NJ Democratic legislature passed – and Republican Governor Christie signed into law – controversial bills that authorized the privatization of public water supply and wastewater treatment systems.

They’ve done that again this week, passing legislation (S1073) which would authorize the creation of local and county stormwater utilities.The bill is now on Gov. Murphy’s desk.

For the dominant narrative on the bill, read the NJ Spotlight story, which plays up the Republican “rain tax” slogan, but ignores the privatization issue:  SPLIT LEGISLATURE GIVES THUMBS-UP TO STORMWATER RUNOFF CONTROLS

(NJ Spotlight repeatedly has turned a blind eye on the privatization controversy, possibly due to potential conflicts of interest).

This expansion in privatization comes at a time when the NJ Courts have recognized the implications of privatization of essential governmental regulatory functions, see:

If it’s bad public policy for DEP to outsource and privatize their regulatory responsibilities, it may be legal but it is equally bad policy for the NJ Legislature to do so.

And once again, the “elite charade” “green” organizations that backed the bill – many aligned with the “Keep It Green” Foundation funded faction – either overtly support privatization of public infrastructure, or they got duped again, because there has been no mention of this massive expansion of privatization of public infrastructure and core governmental functions.

(An astute reader just reminded me that ALS supported the bill and was involved in drafting it. The bill would codify a scheme ALS was involved in. Specifically, ALS benefited financially via a huge Christie DEP Grant to retrofit stormwater impounments in Barnegat Bay (a voluntary private scheme to avoid compliance with the the federal Clean Water Act “TMDL” regulatory cleanup program). ALS basically skimmed off a chunk and funneled the DEP grant money to a private contractor, so they fully support these privatization schemes.

Similarly, Dodge Foundation funded corporate NJ Future and NJLCV both supported the bill. Those groups essentially front for private water corporations like Suez, under the fake astroturf group, NJ Water Works.)

Here is the privatization provision, from Section 6:

or may enter into a contract with a private firm for the operation or improvement of works for the collection, storage, treatment or disposal of stormwater, and the cost and expense of such collection, storage, treatment and disposal.

That provision would allow not only local and county governments, but also local sewer authorities – who already operate with little transparency or public oversight – to enter into multimillion dollar taxpayer and/or ratepayer backed contracts with engineering firms or private water corporations – (fueling their “mission creep” into stormwater management).

The potential for graft and abuse is virtually unlimited.

If the bill is signed into law as passed by the legislature, expect your local taxes to pad the profits of the big engineering firms and water companies that contribute to the Democratic lawmakers who supported the bill.

The management of stormwater involves protection of public safety (from flooding) and public health (from water pollution and impacts on drinking water).

Protection of public safety and public health are essential government functions that should not be privatized, outsourced, and influenced by the profit motives or priorities of private corporations.

People should call on Gov. Murphy and demand that he conditionally veto the bill to eliminate the privatization of critical public infrastructure.

Categories: Uncategorized Tags:

RGGI Is A Political Cover – Money Laundering Operation

December 29th, 2018 No comments
Gov. Environmental Award to NJ Climate Alliance (December 10, 2018)

Gov. Environmental Award to NJ Climate Alliance (December 10, 2018)

Honest Graft Among Friends

Legislative earmarks, Gov.’s awards, DEP grants, and scientific & media support

So let us not talk falsely now
The hour is getting late. ~~~ All Along The Watchtower, Bob Dylan

Multivariate analysis indicates that economic elites and organised groups representing business interests have substantial independent impacts on US government policy, while average citizens and mass-based interest groups have little or no independent influence. ~~~ Princeton Professor Martin Gilens – Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens

Follow the timing of events closely. Follow the money, the press release, the people, the regulatory proposals, and the science.

First, on December 10, 2018, DEP Commissioner McCabe announced the recipients of the ANNUAL GOVERNOR’S ENVIRONMENTAL EXCELLENCE AWARDS, which included the New Jersey Climate Adaptation Alliance, a group:

Facilitated by the Rutgers Climate Institute and Rutgers University’s Edward J. Bloustein School of Planning and Public Policy … The alliance of more than 45 organizations representing public, private, non-governmental and academic sectors has also undertaken research and policy analysis to assess climate impacts in New Jersey as well as outlining policy and other actions that can address sector-based impacts.

We’ve previously written about former high level DEP  employees that now work at Rutgers and authored the Alliance “policy” Report cited by DEP in the award press release.

Second, on December 17, 2018, the Murphy DEP proposed new regulations to rejoin RGGI (read Gov. Murphy’s press release, which provides links to the DEP rule proposals).

The Gov.’s self congratulatory press release left out a key point, found on page 91 of the DEP proposal:

The CO2 emissions from New Jersey’s CO2 budget units constitute approximately 16.5 percent of the State’s annual greenhouse gas emissions.

Get that? RGGI applies to just 16.5% of total emissions – that makes RGGI small change – and it doesn’t even come close to working as advertized in terms of reducing emissions.

I don’t want to get diverted and go into the weeds here, but I must note that among other key facts, the Gov. also failed to mentioned that: 1) the so called 2020 “cap” on emissions – 18.6 million tons – is HIGHER than current GHG emissions; 2) that in a letter, environment groups recommended a 2020 “cap” of just 12-13 million tons; and 3) that the “cap” never goes lower than 12.6 million tons, thereby locking in carbon emissions that make “decarbonization” of the electric sector and the Gov.’s own goal of 100% renewables impossible.

Getting back to the story here – we note that the DEP RGGI rule proposal cites the work of the Rutgers Climate  Alliance, the group that just received the Gov.’s award:

The New Jersey Climate Adaptation Alliance, a group facilitated by Rutgers University, prepared a series of working briefs to provide background information on projected climate impacts for six major sectors in New Jersey, including agriculture. (DEP proposal at p. 106)

So, just days after the Gov. and Tammy issued an award to Rutgers’ Alliance, they cited their work in the scientific basis for the RGGI rule proposal.

Smells like scientific corruption and a conflict of interest to me –

Imagine the outrage if Trump or Christie funded a “science” Report, written by a former staffer, then issued that Group an award, and then cited the Report in support of their policy views.

Or, at best, lazy science and old fashioned political games among a small circle of friends.

Third, the Gov. awards also went to American Littoral Society, who:

With funding from the DEP and several governmental and community partners, the American Littoral Society in 2017 designed and built a series of nonpoint source reduction and green infrastructure projects

Got that? DEP funds ALS, then issues ALS an award for the work DEP funded! On top of that, the Christie DEP outsourced this grant work to ALS as a means of avoiding complying with the Clean Water Act and enforcing a TMDL in Barnegat Bay!!!

So why the hell is the Murphy DEP awarding Christie DEP outsourcing and CWA TMDL compliance evasion?

DEP got a twofer – the ALS work DEP funded was described by the slogan “green infrastructure” – that’s a concept that not so coincidentally is at the heart of weak DEP’s recent stormwater rule proposal. 

Get that? DEP issues an award to the regulatory outsourcing of Christie DEP to ALS, a friend that is sure to support or not criticize the horrible Murphy DEP stormwater regulation.

But that’s not all – ALS is slated to receive RGGI money too.

As I wrote, explaining the way that DEP funds their friends (and amazingly, Jeanne Herb, author of the Rutgers Report, was involved in the RGGI legislative earmark):

Specifically, when the RGGI legislation was undergoing legislative deliberation, most of the environmental community was working hard and very publicly to make RGGI as strong as possible and to prevent the bill from being hijacked by Senator Sweeney on behalf of big oil (which it ultimately was, resulting in editorial boards and most NJ environmental groups to OPPOSE the final version of RGGI, see: Lame Global Warming Bill Goes to Governor.)

But two groups, NJ Audubon and American Littoral Society were working quietly behind the scenes NOT on strengthening the RGGI bill, but on seeking special amendments to essentially earmark RGGI revenues to their organizations and pet projects. 

Specifically, NJA and ALS met quietly with NJ DEP Director of Policy & Planning Jeanne Herb to secure earmarks of RGGI funds for carbon sequestration.

DEP supported these amendments and deceptively conveyed them to the Legislature as DEP amendments – thus disguising the special interests NJA and ALS behind them and essentially laundering special interest earmarks.

Here they are: (see Section 7.b.(4))

(4) Ten percent [of RGGI revenues] shall be allocated to the department to support programs that enhance the stewardship and restoration of the State’s forests and tidal marshes that provide important opportunities to sequester or reduce greenhouse gases.

NJ Audubon was the ONLY group in NJ doing “forest stewardship and restoration”.

ALS was the only group working on “tidal marsh” restoration.

This 10% was an earmark to those groups.

Get that?

Herb was involved in the ALS earmark; the DEP sham GWRA; the DEP sham regulation – deregulation of GHG emissions; the Rutgers Report and the Murphy DEP award and RGGI rule.

It’s all just honest graft among friends: legislative earmarks, Gov.’s awards, DEP grants, and scientific support.

End Note: Mike Catania, the heavy set well fed man on left in the photo above, not only works with Rutgers Climate Alliance, he was a former DEP Deputy Commissioner and now doles out tobacco blood money as head of the Duke Foundation – to groups like ALS and the Rutgers Climate Alliance. It’s all good among friends, right?. Or cronies?

Can’t make this stuff up.

 

Categories: Uncategorized Tags:

After 12 Months In Office, Murphy DEP Proposes First Regulation, And It Is Awful

December 14th, 2018 No comments

Several Red Flags In Stormwater Rule Proposal Reflect Continuity With Christie DEP Policy

Proposal Would Codify Christie DEP Rollback of C1 Steam Buffer Protections

Proposal ignores climate change

[Update – The Federal Emergency Management Agency (FEMA) agrees with our criticism, see:

On December 3, 2018, the Murphy DEP finally proposed its first regulation, after 12 months in power.

That is a record low number of regulatory proposals by any prior DEP.

The proposal is a major rule that makes significant policy and regulatory changes and will have significant negative impacts on development, water quality, flooding and DEP review of major projects, like proposed pipelines crossing NJ streams and urban “combined sewer overflow” systems.

The proposal was developed during the Christie DEP and reflects Christie DEP policy and priorities, not those stated by Gov. Murphy and DEP Commissioner McCabe, who have pledged to reverse the rollback course set by the Christie DEP.

The proposal has been a well kept secret thus far – it was not announced publicly by a DEP press release and there has been no news coverage of it thus far.

There are several major red flags that jump off the pages based on my preliminary review.

1. The proposal would codify the Christie DEP rollback of C1 steam buffer protections

Despite huge controversy, strong public opposition, and a legislative veto of the Christie C1 rollbacks, the Murphy proposal openly admits it not only would codify the Christie DEP C1 stream buffer rollbacks which allow “encroachments” into steam buffers that were prohibited by prior rules, it also fails to repeal and replace them with the original or more stringent regulatory protections:

The Department additionally proposes to update the existing reference to new encroachments in the special water resource protection area (SWRPA). The SWRPA was a 300-foot wide area adjacent to each side of water bodies designated as Category One waters pursuant to the Surface Water Quality Standards, N.J.A.C. 7:9B, and their associated perennial or intermittent streams that drained into or upstream of the Category One waters, which was intended to prevent adverse impacts resulting from stormwater runoff to Category One waters. As the Flood Hazard Area Control Act (FHACA) Rules also established a 300-foot riparian zone along Category One waters and a slightly different set of tributaries, in 2016, the Department deleted provisions related to the SWRPA from the Stormwater Management rules and incorporated new standards into the similar 300-foot riparian zone in the FHACA Rules in order to create a 300-foot buffer with uniform standards applicable to a uniform set of surface waters (see 47 N.J.R. 1041(a); 48 N.J.R. 1067(a)). To reflect this change, reference to the SWRPA is proposed to be replaced with reference to the 300-foot riparian zone contained in the FHACA Rules at N.J.A.C. 7:13-4.1(c)1. While protections previously provided to SWRPAs under the StormwaterManagement rules were incorporated into the FHACA Rules’ 300-foot riparian zone, local stormwater control ordinances may still include the SWRPA provisions or similar near-stream protected areas along Category One waters. Accordingly, in addition to reference to the FHACA Rules’ 300-foot riparian zone, it is also necessary to include new encroachments into 300-foot near-stream protected areas as an impact to be considered when determining if the grandfathering is still valid. Since the term SWRPA is no longer used in the Stormwater Management rules, it would be confusing to continue to use that term in N.J.A.C. 7:8-1.6(e). Accordingly, reference to 300-foot near-stream protected areas is proposed to be added at recodified N.J.A.C. 7:8-1.6(e)6 to reflect the similar protections that continue to be included in some municipal ordinances, regardless of what they may be referred to as in the particular ordinance. (p.48-49)

This is shameful – even the Legislature voted to veto the C1 buffer rollbacks as inconsistent with legislative intent.

There are several additional Christie DEP rollbacks that should have been repealed but were codified or ignored in the proposal. More to come about that as I conduct a more in depth review.

2. The proposal virtually ignores climate change

There are no new policies and regulatory standards to address current and projected impacts of climate change, including sea level rise, storm surge, increased rainfall frequency and intensity, drought, and heat waves and urban heat island effects – Or the need for carbon sequestration in soils and forests.

In fact, climate is mentioned exactly once, parenthetically, in the complex 169 page proposal, as an aside in a single sentence that makes a conclusion, with no supporting data. The DEP just threw it in there at the last minute:

Furthermore, the benefits of green infrastructure discussed in this notice of proposal help to improve community’s resiliency to the effects of climate change.

This is reckless and irresponsible.

3. The proposal is the result of the Christie DEP “by invitation only” Stakeholder process

The Christie DEP embarked on a “by invitation only” Stakeholder process that was not only dominated by business, industry, and development interests, but it also shut out critics and aggressive environmental advocates.

Gov. Christie issued Executive Order #2 to provide “regulatory relief” and make DEP rules, among other things, subject to “pre-proposal” review by business interests to avoid strict regulations and provide “advance notice” to allow special interests to intervene behind the scenes and block and weaken DEP rules. EO#2 explicitly seeks “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

The Murphy DEP now embraces the policies of EO#2 and implements the work product of that process.

Stakeholder Engagement

The Department developed the proposed new rules, repeals, and amendments with extensive input from a broad range of stakeholders. Stakeholders included representatives from environmental groups, developers, academia, municipalities, counties, regional agencies, and consultants, as well as representatives from the New Jersey Department of Agriculture, the New Jersey Department of Transportation, and the New Jersey Department of Community Affairs.

The Department held stakeholder meetings in 2014, to discuss changes proposed in this rulemaking, including the proposed change to replace nonstructural stormwater management strategies with specific strategies from the New Jersey Stormwater Best Management Practice (BMP) Manual. The Department held three stakeholder meetings in November 2016, to discuss many of the proposed changes, including green infrastructure as a replacement for nonstructural strategies and changes that impact communities with combined sewer systems. Changes pertaining to motor vehicle surface and averaging compliance across multiple drainage areas were stakeholdered in 2011 and 2012.

The Department held a stakeholder meeting in June 2017, to understand stakeholders’ perspectives on whether there are site specific constraints that would prevent the use of green infrastructure BMPs. Stakeholders generally acknowledged that there may be cases of site constraints that cannot be overcome, but that the only condition for allowing utilization of non-green infrastructure BMPs should be for technical infeasibility. Stakeholders suggested requiring applicants to perform an alternatives analysis demonstrating that each green infrastructure BMP is technically infeasible for each drainage area, if the applicant seeks to use non-green infrastructure BMPs. Most stakeholders further expressed that cost should neither be considered in the alternatives analysis, nor factored into the decision whether to permit the use of non-green infrastructure BMPs. Stakeholders suggested a grandfathering provision allowing stormwater management designs already submitted to review agencies before the effective date of the rule to be reviewed under the rules in effect when the designs were submitted. Input received during the stakeholder process has been considered by the Department in formulating the amendments, new rules, and repeals proposed below.

The proposal makes some vague allusion to future stakeholder discussions – but that is ass backwards and puts the rollback cart before the more stringent new rules horse. It is not only bad public policy, but political malpractice to adopt a prior administration’s rollbacks while promising future improvements.

During this past stakeholder process, stakeholders expressed an interest in discussing issues beyond those addressed in this rulemaking. The Department is committed to continuing to hear andtake into consideration stakeholders’ perspectives on stormwater management issues. Therefore, the Department will hold additional stakeholder discussions to evaluate further potential future changes to N.J.A.C. 7:8 that are not part of this rulemaking and to the New Jersey Stormwater BMP Manual. Additionally, the Department plans to seek input on new efforts related to training and guidance. (p.5-7)

4. The proposal repeals prior regulatory mandates and replaces them by a slogan

“Green infrastructure” is more of a slogan than a policy and science based enforceable regulation, much like “smart growth”, “sustainable development”, “resilience”, and “environmental justice”.

The Department held three stakeholder meetings in November 2016, to discuss many of the proposed changes, including green infrastructure as a replacement for nonstructural strategies and changes that impact communities with combined sewer systems. …

The Department is proposing amendments to the Stormwater Management rules, N.J.A.C. 7:8, to replace the current requirement that major developments incorporate nonstructural stormwater management strategies to the “maximum extent practicable” to meet groundwater recharge standards, stormwater runoff quantity standards, and stormwater runoff quality standards, with a requirement that green infrastructure be utilized to meet these same standards.

The current “maximum extent practicable” mandate was poorly implemented by a point system that was over-ruled by the Courts, but it should have been strengthened, not abandoned and repealed. Here’s DEP’s “excuse” for that:

As the Department began to implement the nonstructural strategies in the Stormwater Management rules, the Department observed that accurate assessment of whether nonstructural strategies proposed to be incorporated into a particular project satisfied therules’ requirement that such strategies be utilized to the “maximum extent practicable” was difficult, with the ultimate determination involving a measure of subjectivity.

Green infrastructure is an unenforceable slogan – as a general policy thrust, it may be OK, but not when it is used to replace enforceable technical requirements. And it too “involves a measure of subjectivity”.

Here’s is DEP’s justification claim:

The use of green infrastructure BMPs, such as pervious paving, infiltration basins, and bioretention systems, will more effectively achieve the Department’s goals under the existing rules of reducing stormwater runoff volume, reducing erosion, encouraging infiltration and groundwater recharge, and of maintaining, or reproducing as closely as possible, the natural hydrologic cycle and minimizing the discharge of stormwater-related pollutants, such as TSS and nutrients.

There is no NJ specific data or science in the proposal to support that claim or that green infrastructure will be as protective as the current requirements it replaces.

More to follow.

5. The proposal reflects the Christie – Martin DEP regulatory “alignment” policy

A major initiative of the Christie Bob Martin DEP was to “align” various regulations to make it cheaper, easier and more certain for business to get DEP permits.

Alignment may sound good, but it lacks any scientific basis and conflicts with laws.

For example, the Legislature has mandated that DEP regulations in the environmentally sensitive Highlands and the Pinelands must be stricter  than those in the rest of the state. Alignment makes no sense and violates the law.

Here’s The Murphy McCabe DEP justification:

To align the Stormwater Management rules with the new WQMP rules, the Department proposes to update various references to the WQMP rules…. (p.85)

The Department is additionally proposing minor amendments to provisions in the Coastal Zone Management Rules, the Freshwater Wetlands Protection Act Rules, the Flood Hazard Area Control Act Rules, the New Jersey Pollutant Discharge Elimination System rules, and the Highlands Water Protection and Planning Act Rules in order to update cross-references and incorporate other changes consistent with the proposed amendments to the Stormwater Management rules.

Despite the fact that back in 2002, the McGreevey – Campbell DEP sought a failed “Big Map” regulatory strategy to distinguish regulatory requirements based on location and environmental sensitivity, the concept remains sound and is actually mandated by law.

Location based regulation is also the foundation of the policy and  planning area framework of the totally ignored NJ State Plan.

Instead of advancing that concept and complying with law, Murphy – McCabe parrot Christie policy.

6. The proposal has many loopholes and a broad “grandfathering provision”

The proposal would exempt many projects from so called new “green infrastructure” requirements:

The Department is proposing several amendments to N.J.A.C. 7:8-1.6 to provide a modified form of “grandfathering” that would be applicable to the changes being proposed at this time. In recognition that the proposed amendments, including the proposed amendment to require utilization of green infrastructure with very limited exception, could require significant redesign of projects that had similarly progressed in reliance on the existing rule requirements, the Department proposes to revise the dates that had been incorporated to provide limited“grandfathering” at N.J.A.C. 7:8-1.6(b) to reflect that major development qualifying for the exception will be subject to the requirements of the rules in effect one day before the operative date of this rulemaking (with the actual date one day prior to the date one year after publication of the notice of adoption in the New Jersey Register to be incorporated into the rule).

7. The proposal allows “mitigation”, “averaging”, “variances” and watershed-wide (HUC-14) compliance demonstration to escape enforceable requirements

There are many provisions in the proposal that let developers off the hook from various technical requirements at a site specific level, including the highly touted “green infrastructure” BMP’s.

A full discussion is beyond the scope of this post and will be addressed in future posts

8. The proposal repeals current water quality, stormwater volume, and groundwater recharge requirements

In addition, the proposal would allow “mitigation” to provide an exemption for nutrient and stormwater runoff water quality standards.

A full discussion is beyond the scope of this post and will be addressed in future posts

9. The proposal lays the foundation for approval of controversial pipelines and fossil infrastructure 

The public and anti-pipeline activists have finally begun to understand the regulatory framework for stopping pipelines and new gas power plants, including DEP water quality certificates. The issues were discussed in detail during the debate on prior Christie DEP rollbacks of DEP rules.

The proposal not only failed to address these crucial issues, it would repeal standards (e.g. Total Suspended Solids, TSS, nutrients) and codify major loopholes in current rules the make it difficult if not impossible for DEP to deny permits for pipelines.

A full discussion is beyond the scope of this post and will be addressed in future posts.

10. The proposal fails to close many known loopholes and correct flaws in existing rules

A full discussion is beyond the scope of this post and will be addressed in future posts.

This is just an overview. More to follow.

Categories: Uncategorized Tags:

Greens Press NJ Gov. Murphy For Fossil Moratorium

December 6th, 2018 No comments

Gov. Murphy’s Climate and Energy Commitments On The Line 

Moratorium can kill pending fossil projects without new legislation

A broad coalition of over 50 climate, community and environmental groups yesterday kicked off the long awaited statewide campaign to pressure NJ Gov. Murphy to enact a moratorium on new fossil infrastructure (see: Dave Levitsky’s Burlington County Times story:

While the governor has restored the state’s participation in the Regional Greenhouse Gas Initiative and promoted solar and offshore wind energy development with the goal of the state having its power come entirely from clean or renewable sources by 2050, the assembled environmental groups said they had expected Murphy would have acted sooner to put a halt to gas pipelines and other fossil fuel projects.

“We have marched and protested, written letters and signed petitions, attended hearings and spoken in front of commissions for over three years,” said Agnes Marsala, president of the grassroots group, People Over Pipelines. “The only thing that gave us hope was the promise of a new administration in Trenton. We had hoped if we delayed until a new governor could begin to undo the damage caused by (former Gov. Chris) Christie and his fossil fuel cronies, there was a chance the (Southern Reliability Link) could be halted.”

“Murphy has been in charge now for 11 months and things remain unchanged … We need your help. You could stop the SRL and all new fossil fuel infrastructure with a stroke of a pen. Declare a moratorium now. Today,” she said.

Way to go Ag! (People Over Pipelines – photo))

I’ve written extensively about the moratorium issue, so will make just one important point today.

I hope that the campaign gets unified on this important point, because it is essential to holding the Gov. accountable, particularly given the Gov.’s Office initial response: (NJ Spotlight)

Asked to respond, Alyana Alfaro, deputy press secretary for the governor, said: “Governor Murphy has directed his team to take a hard look at energy infrastructure projects as part of an updated Energy Master Plan, which will set New Jersey on a path to 100 percent clean energy by 2050.’’

Gov. Murphy clearly has the executive power to declare a moratorium on BPU and DEP approvals of new fossil infrastructure.

The Gov. does not require new legislation to implement the moratorium.

The Gov. can not rely exclusively on the BPU Energy Master Plan process, but instead needs to step up, set policy, and direct BPU and DEP via Executive Order.

The Gov.’s moratorium can extend during a State planning and regulatory process by BPU and DEP and remain in place until new plans, policies and regulations are formally adopted by both BPU and DEP.

Prior Gov.’s Executive moratoria have survived legal challenge in NJ. Additionally, the use of a moratorium has been upheld by the US Supreme Court in the “Lake Tahoe” case, where a moratorium was linked to a planning process.

The moratorium can be implemented on a permanent basis, based on new BPU and DEP plans, policies and regulations developed while the moratorium was in effect.

There is no need for new legislation. All the pending fossil projects can be killed by the Gov.’s executive powers.

Gov. Murphy’s reliance on revisions to the BPU Energy Master Plan are not inconsistent with a moratorium.

The best model for how to do that is former Gov. Florio’s 120 day moratorium on State agency approvals of pending garbage incinerator projects, via Executive Order #8.

The key language of EO#8 is:

During the Task Force’s deliberations over the next 120 days, the following shall apply:

a. The Department of Environmental Protection shall not issue a final approval of any solid waste management plan that sites increases the capacity of or approves financing for waste-to-energy resource recovery facilities;

b. The Department of Environmental Protection shall not issue a approval of Preliminary or Final Environmental and Health Impact Statements for any waste-to-energy resource recovery site or facility;

c. The Department of Environmental Protection shall not issue tentative or final approval of any solid waste facility engineering design now pending or hereafter submitted for any waste-to-energy resource recovery facilities;

d. The Department of Environmental Protection, the Board of Public Utilities and the Division of Local Government Services within the Department of Community Affairs shall not, pursuant to N.J.S.A. 13:1E-136 et seq., issue any approval or conditional approval of any previously submitted proposed contract for the design, financing, construction, operation or maintenance of a waste-to-energy resource recovery facility; and

e. No State agency, commission or organization shall approve the issuance of debt or extend financing to any person or entity for use in planning, designing, acquiring, constructing, operating or maintaining a waste-to-energy resource recovery facility.

The Solid Waste Task Force submitted recommendations to Gov. Florio. The key recommendation was that garbage incineration was a “technology of last resort” and should be actively discouraged by DEP and not approved until other all options (i.e. source reduction, recycling, & composting) were exhausted.

Florio agreed with them and directed DEP to revise the State Solid Waste Management Plan based on those recommendations.

DEP then adopted a new Solid Waste Management Plan that erected barriers to incineration. All the pending garbage incinerators were killed by the Florio Order and new DEP Solid Waste Management Plan.

There was no new legislation required to kill the incinerators and shift the State policy and financial support from incineration to source reduction, maximum feasible recycling and composting.

Similar to the Florio new solid waste management plan and technology policy, fossil infrastructure could be declared a “technology of last resort” to be “phased out” to attain the Gov.’s 100% renewable energy goals and the GHG emission reductions of the Global Warming Response Act.

Just like source reduction, recycling and composting alternative strategies for garbage, Murphy could mandate new energy demand reduction, energy efficiency, renewable energy and smart grid policies as alternatives to  fossil infrastructure.

In the current case, Gov. Murphy could:

1) Issue an Executive Order that declared a climate emergency;

2) The Order would impose a moratorum on State agency approvals of new fossil infrastructure;

3) The Order would establish a Climate Emergency, fossil infrastructure, and renewable energy transition Task Force and direct them to make recommendations to BPU and DEP.

4) The Order would direct the Task force to focus on how to achieve the GHG emission reduction goals of the Global Warming Response Act and transition to Gov. Murphy’s 100% renewable energy goals.

5) The Order would direct BPU to revise the Energy Master Plan to comply with the Gov.’s approved recommendations and direct DEP to adopt regulations would enforce the recommendations.

It is important that folks working on the campaign clearly understand this and get that message to the Gov. and the media.

Don’t let the Gov. make an excuse that he needs new legislation and don’t let him rely exclusively on the BPU Energy Master Plan process.

Categories: Uncategorized Tags:

Senator Smith Urged To Put Teeth In Proposed Climate Legislation

November 29th, 2018 No comments

Flawed Climate Bill To Be Heard On Monday

Bill Supports Industry Legal Argument That DEP Lacks Authority To Regulate GHG

Bill Lets DEP Off The Hook For Failure To Regulate GHG Emissions Under Current Law

Senate Hearing Opportunity to Send Message to Trenton to Get Real On Climate Catastrophe

[Update: 5/2/22 – I need to clarify the update below regarding DEP’s authority to regulate greenhouse gas emissions, in light of what may appear to be a contradictory analysis of Senator Smith’s current bill, S1602, to put teeth in the Global Warming Response Act.

DEP does have authority to regulate GHG emissions from a small universe of major emission sources under the 1954 NJ Air Pollution Control Act (APCA). That authority includes setting emission fees.

But that APCA authority is limited to issuing permits based on technology, not on the GHG emission reduction goals and timetables of the Global Warming Response Act. DEP also has APCA authority to base emission limits on ambient air quality standards, but there are no ambient air quality standards for greenhouse gases.

That APCA authority is also limited to a very small universe of major GHG emissions sources (less than 20% of all emissions).

The DEP does not have authority under the Global Warming Response Act (GWRA) to regulate GHG emissions to achieve the emission reduction goals of that Act.

That’s why Smith’s bill is important – i.e. to link DEP’s air permit authority under the APCA to the goals of the GWRA. But the Smith bill would need to be amended to apply to all emission sources and to include enforceable timetables, fossil phase outs, lifecycle emissions, etc. ~~~ end update]

Important Updates below]

Yesterday, I wrote to explain fatal flaws in NJ Senate Environment Committee Chairman Bob Smith’s proposed bill (S3207) to implement the greenhouse gas emission reduction goals of the 2007 Global Warming Response Act.

Today, I wrote Senator Smith the letter below (with copies to Committee members Senators Greenstein (D) and Bateman (R)) to convey my concerns, and outline the kind of major amendments required to put teeth in the bill (I intentionally left out a fossil moratorium, as Gov. Murphy should initiate that policy via Executive Order).

Reliance on Gov. Murphy’s energy policy – i.e. re-entry into RGGI, off shore wind and solar -alone won’t work.

First, the NJ RGGI law and RGGI program covers less than 20% of total GHG emissions and the current paltry $3/ton emission allowance fee has no effect on emissions and won’t generate nearly enough revenues to finance investments to transition to 100% renewables.

Second, GHG emissions from existing and pending proposed gas power plants and pipelines would wipe out any emissions reductions from renewable energy (3,500 MW of off shore wind and modest expansion of solar).

The Smith bill will be heard on Monday December 3, 2018 in Trenton, at 10 am in the State House Annex, Room 6, first floor. I strongly urge folks to contact Smith and Committee members to ask for these kind of amendments and, if possible, show up and testify at the Committee hearing. Please feel free to use my analysis and recommendations.

Dear Chairman Smith –

Please accept the following as testimony and a request for amendments to S3207, your proposed legislation to implement the 2007 Global Warming Response Act (GWRA).

While I would support new legislation to accelerate reductions of greenhouse gas emissions (GHG) to meet the goals of the GWRA and avoid climate catastrophe, unfortunately I can not support the bill as drafted due to fatal flaws that repeat many of the same flaws of the original GWRA and for failure to include enforceable statutory and regulatory standards, timetables, and resources necessary to actually achieve those goals.

To remedy those flaws, the following kind of amendments are necessary (as discussed in greater detail with links to supporting data and regulatory documents in this essay:

More Fake Solutions On Climate Change

http://www.wolfenotes.com/2018/11/more-fake-solutions-on-climate-change/

1. Authorize and mandate that DEP regulate major GHG emission sources, in consideration of lifecycle and cumulative emissions and attainment of an annual statewide GHG emissions reduction standard. Authorize DEP to deny permits on the basis of GHG emissions. There are many ways to do this that I’d be willing to discuss with you in greater detail.

2. Repeal the regulatory exemptions in DEP’s 2005 regulation that defined greenhouse gases, including methane, as air pollutants pursuant to NJ Air Pollution Control Act. In case you were not aware of those exemptions, here’s a list (this is DEP’s language from the 2005 regulatory response to comments – adoption document @ p. 53):

https://www.nj.gov/dep/rules/adoptions/2005_1121njac7_27.pdf

  • A requirement to include in a permit application information about CO2 emissions
  •  A requirement to obtain a permit under N.J.A.C. 7:27-8 or 7:27-22
  •  A limitation on CO2 emissions in a permit
  •  A requirement for a state-of-the-art analysis with respect to the control of CO2 emissions
  • A fee
  •  A facility being considered a “major facility”
  •  An item of equipment or a source operation being considered a “significant source”
  •  The applicability of any other requirement under 7:27, other than the requirements of 7:27-21 (which require facilities to which subchapter 21 applies to report CO2 emissions in their emission statements).

3. Subject major GHG emission sources to current DEP air pollution emissions fees, which are currently set at $122.45 per ton. Dedicate revenues from these fees to investments in demand reduction, energy efficiency, renewable energy, smart grids/micro grids, and a phase out of fossil fuels.

DEP’s most recent GHG emissions inventory estimates that in state GHG emissions exceed 100 million tons. Re-entry into RGGI would address less than 20 million tons, while RGGI allowances currently sell for about $3 per ton. However, if current DEP air pollution emission fees were applied only to RGGI sources, that would generate over $2 billion/year to invest in the transition to renewables.

4. Repeal BPU exemptions and subsidies to fossil fuel plants and infrastructure. For example, BPU unilaterally exempted the proposed re-powering of the BL England plant from RGGI and Societal Benefit Charges. I suspect that other power plants have received exemptions as well. Other examples are provided in the above essay and links.

5. mandate that BPU consider the Social Costs of Carbon (SCC) in BPU energy planning, policy, regulations, and energy industry oversight and review of economic filings.

The Obama EPA adopted a range of SCC costs, based on various assumptions, see:

https://19january2017snapshot.epa.gov/climatechange/social-cost-carbon_.html

The Obama administration incorporated SCC in regulatory policy, but on 3/28/17, President Trump issued an Executive Order that abandoned all that and prohibited implementation, see: Presidential Executive Order on Promoting Energy Independence and Economic Growth

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-promoting-energy-independence-economic-growth/

6. Establish an aggressive mandatory timetable for the phase out of in-state fossil infrastructure and purchase of out of state generated fossil power. California law includes a phase out by 2045, but that law is not mandatory, lacks enforceable standards, and the 2045 timetable is far too long. A 10-15 period is the maximum timeframe to reflect but available science and avoid climate catastrophe and limit warming to 1.5 degrees C per the Paris accords.

[Update: 7. Mandate that DEP establish carbon sequestration program, including a new urban forestry program, afforestation of abandoned agricultural or vacant lands, and restrictions on DEP logging of State lands under guise of “stewardship”.

Obviously, these are each major substantive amendments to your bill, so a Committee substitute bill may be required to incorporate them all.

I’d be glad to work with you and OLS staff to research and draft such a substitute.

I appreciate your timely and favorable consideration.

Bill Wolfe

[Update: I inadvertently may have created some confusion.

Legislation is not needed for DEP to regulate GHG emissions. As my posted noted yesterday and the letter to Smith repeats, back in 2005, DEP adopted regulations that defined greenhouse gas emissions as air pollutants. However, that rule EXEMPTED GHG from almost all DEP air pollution control regulatory requirements, including permits, emissions limits, and emission fees.

Accordingly, Gov. Murphy and DEP Commissioner McCabe should be held accountable for their failure to mandate that DEP adopt GHG emission standards to meet the goals of the Global Warming Response Act.

Additionally, Senator Smith’s bill lets DEP off the hook for this failure and runs a risk of supporting a legal argument that DEP lacks statutory authorization by the legislature to regulate GHG emissions. Industry made these arguments during the 2005 rule making and would obviously use Smith’s bill in any future litigation, should DEP decide you use their current authority.

Smith must either put real teeth in his bill or withdraw it. Given a low probability that a bill with teeth would ever pass, the best option is to withdraw Smith’s bill.~~~ end update]

Categories: Uncategorized Tags: