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New Legislation Designed To Divert From Fossil Moratorium & Phase Out

Once one understands how the elite charade is played, it’s like shooting fish in a barrel.

I’ve been writing a lot about the concept of “the elite charade” lately, and today another classic example just appeared.

A close look at the timing, the content, and the press coverage revealingly peels the mask off and exposes the latest – and most egregious – elite charade. Let me explain.

After ignoring the climate activist campaign to demand that Gov. Murphy impose a moratorium on fossil infrastructure – and just days after I wrote to criticize that neglect – today NJ Spotlight reports that Senate Environment Committee Chairman Smith introduced legislation to “implement” the failed 2007 Global Warming Response Act (GWRA):

• SMITH AIMS TO GET STATE ON FASTER TRACK TO REDUCING GREENHOUSE GAS EMISSIONS

(for readers interested in a forensic autopsy of the 2007 GWRA, see: A Decade After Passage of The NJ Global Warming Response Act: From “Toothless” to a “Dead Letter”)

The Smith bill (S3207) is a charade and proposes classic “fake solutions”. I put that term in quotes, as it is not mine.

A core feature of what author and former New York Times columnist Anand Giridharadas calls the “elite charade” is the concept of what he calls “fake solutions”. Fake solutions are the mechanism by which the elite charade operates.

Fake solutions share common features. They:

1) allow the advocates of them to feel virtuous that they are “changing the world” and garner good publicity;

2) are “win-win” solutions, meaning that they do not involve tradeoffs, impose any costs, or require sacrifice in terms of individual career, personal lifestyle, or income;

3) do not involve corporate taxes, government regulations, or income or wealth redistribution;

4) divert attention from and displace more effective real solutions, especially regulations and taxes;

5) marginalize and undermine the “radical” or “politically unrealistic” or “idealistic” individuals and groups that advocate real solutions; and

6) are “politically safe”, i.e. they lock in the status quo and pose no threat to powerful elites, corporations, or politicians.

Now lets apply the “fake solutions” framework to Chairman Smith’s bill and compare them to real solutions. I’ve already written about the fossil moratorium as a real solution, so will not repeat that today and instead focus on other real solutions.

I) Real Solutions: DEP Regulation of GHG Emissions

Just like the failed GWRA  – which I criticized at the outset – Smith’s bill limits the scope of DEP regulations to emissions monitoring and reporting and merely directs DEP to prepare a Report.

According to the bill’s statement:

This bill would establish new timeframes for the completion of the Legislature’s directives in the GWRA. Specifically, within 12  months after the date of enactment of the bill, the DEP would be required to adopt rules and regulations establishing a greenhouse gas emissions monitoring and reporting program. Additionally, within 18 months after the date of enactment, and biennially thereafter, the DEP would be required to prepare a report on the status of the greenhouse gas emissions monitoring and reporting program, the current level of greenhouse gas emissions in the State, and the progress made toward compliance with the goals established in the GWRA. Finally, within one year after the date of  enactment, the bill would require the DEP to prepare a report recommending additional measures necessary to reduce greenhouse gas emissions to achieve the 2050 goal.

That’s like filing a tax return to IRS that identifies your income, but pays no tax. Like having IRS submit a Report to Congress about total US income, but not authorizing IRS to levy and collect any taxes.

In other words, the bill is not serious.

Regarding actual GHG emissions, Smith’s bill merely requires DEP to develop a “strategy”.

According to the bill’s statement:

This bill would establish new timeframes for the implementation of certain requirements in the “Global Warming Response Act” (GWRA), and require the Department of Environmental Protection (DEP) to adopt a strategy to reduce short-lived climate pollutants.

II) Real Solutions: DEP Air Pollution Fees

DEP mandates air pollution emissions fees  – DEP just issued a notice to updated them:

In accordance with N.J.A.C. 7:27-22.31(j), the Department has published a notice of the annual percentage increase in the Consumer Price Index (CPI) relative to the 1989 CPI and the resultant per-ton emission fee for FY 2019 in the November 19, 2018 New Jersey Register. …

The annual emission fee, paid by each major facility subject to N.J.A.C. 7:27-22, is calculated each year according to N.J.A.C. 7:27-22.31(b), which applies the CPI percentage increase to a base amount per ton of emissions. For FY 2019, the Department calculated the CPI percentage increase as 2.42 percent, resulting in an annual emission fee of $122.45 per ton of regulated emissions.

A facility subject to this fee must multiply $122.45 times the quantity of regulated air contaminant emissions (VOC, NOx, CO, SO2, highest TPY of TSP, PM10, or PM 2.5) emitted in tons during calendar year 2017 (January 1 through December 31, 2017). The result is the fee the facility must submit to the Department by January 31, 2019. Invoices are being mailed to major facilities based on emissions reported in the Emission Statement submitted for calendar year 2017.

But DEP exempted greenhouse gas emissions from those fees! (see above list of exemptions).

Compare the DEP’s $122.45/ton air pollution emission fee to the current paltry Regional Greenhouse Gas Initiative (RGGI) emission fee, which is in the ballpark of just $3 per ton.

Gov. Murphy has embraced RGGI – which, as I’ve written many times, is a fake and ineffective solution (most recently, see The RGGI Blues)

If Gov. Murphy were serious, he would impose current DEP air pollution fees to GHG emissions. But no “green group” is calling for that and no NJ Spotlight stories have ever reported on current DEP emissions fees or questioned why DEP exempted GHG from them.

According to the most recent DEP greenhouse gas emissions inventory, statewide GHG emissions exceed 100 million tons:

According to the latest greenhouse gas emissions estimate (2015), Statewide releases were a little over 100 MMT CO₂e

Do the math: (100 million tons of GHG emissions) X ($122.45/ton) = $12,245,000,000

That’s $12.245 BILLION if all GHG emissions were subject to DEP’s current air pollution emissions fees.

Of course, I am not suggesting that DEP should or could regulate ALL GHG emissions sources that contribute to NJ’s 100 million tons of emissions. But DEP doesn’t currently regulate or impose fees on any GHG emissions sources.

If just the RGGI regulated emissions – which are about 20 million tons/year – were subject to the current DEP air pollution emissions fees ($122.45/ton), that would represent over $2 BILLION per year in revenue that could be reinvested in the transition to 100% renewable energy, construction of a smart grid for distributed local energy, and a phase out of fossil.

So there’s a lot of room between 100 million tons and zero for a real solution: a realistic GHG emissions fee program that is more robust that RGGI $3/ton.

III)  Real Solutions – Eliminate BPU Exemptions and Subsidies

It’s not just DEP that has exempted GHG emissions from regulatory and pollution fees.

As I wrote (See: Time to Pull the Plug On BL England), in an April 29, 2013 Order, the BPU quietly granted huge tax breaks and subsidies to the Rockland Capital BL England Plant:

The BPU granted the plant an exemption from RGGI fees and SBC charges.

This BPU BL England Order also provided secrecy to cover up the amount of huge ratepayer subsidies to Rockland Capital.

In addition, the BPU has ignored the Social Costs of Carbon in their economic review of energy projects. Instead, Gov. Murphy signed legislation that allowed PSEG and the nuclear industry to hijack the concept of SCC. The law turns the concept of SCC on its head.

Instead of polluters paying the public to offset the SCC of their emissions, e.g putting a price on carbon, the Murphy law requires that the ratepayers pay to subsidize nuclear power via “zero emissions credits”. Orwellian. Absurd.

How many other gas plants have been exempted from RGGI and provided other subsidies? Ask Senator Smith. Or NJ Spotlight.

The Smith bill requires that DEP act in concert with BPU. That’s another misleading effort, because there is no policy or legislative standards or requirements that BPU or DEP must comply with – while at the same time ignoring major flaws and loopholes in current BPU and DEP policy.

Real climate solutions will require that many BPU loopholes and subsidies be eliminated.

The Smith bill doesn’t do that, but instead creates the false appearance on integrating BPU energy and DEP regulatory policy.

IV) Real Solutions: California Dreaming – Phase Out of Fossil

Finally,I closed my most recent moratorium post with this challenge to emulate California’s fossil phase out:

[End Note: in addition to a Moratorium, the campaign should include a demand for a timetable for phasing out existing fossil power, similar to California Gov. Brown’s policy.]

So, I find it no coincidence that both the bill and the NJ Spotlight story misleading allude to greenhouse gas and climate policies in California. (bill statement):

The requirement to adopt a comprehensive strategy under this bill is based on legislation adopted and implemented in California.

It’s almost comical how Spotlight was so eager to get the California comparison into the story that they got it wrong.

I referred to California with respect to the fossil phase out. But the bill refers to California with respect to the DEP “comprehensive strategy”.

But Spotlight make the California connection to methane:

The legislation to deal with short-lived pollutants like methane is modeled after a bill adopted and implemented in California.

I find that mistake revealing. Classic fake solutions that divert from real solutions in California: the phase out of fossil power.

V) Apply The Fake Solutions Framework

So, let’s look at the content of Senator Smith’s bill, the timing of its release, and the NJ Spotlight coverage, in light of the elements of the “fake solutions” framework:

1) allow the advocates of them to feel virtuous that they are “changing the world” and garner good publicity;

Check – Senator Smith got good press. NJ Spotlight creates the impression among its readers that they are doing real journalism. Doug O’Malley at Environment NJ can report back to his Foundation funders that he got the quote on a major climate bill. Foundations just love those kind of ‘metrics”.

2) are “win-win” solutions, meaning that they do not involve tradeoffs, impose any costs, or require sacrifice in terms of individual career, personal lifestyle, or income;

Check – The Smith bill involves no tradeoffs, imposes no costs, and requires no sacrifice

3) do not involve corporate taxes, government regulations, or income or wealth redistribution;

Check – the Smith bill imposes no new taxes or air pollution fees, does not authorize new regulations of close loopholes in exiting regulations, and has no impact on inequality.

4) divert attention from and displace more effective real solutions, especially regulations and taxes;

Check – the Smith bill diverts media ad public attention from the moratorium campaign, from the California phase out, and from major flaws and massive loopholes in current laws and DEP regulations.

5) marginalize and undermine the “radical” or “politically unrealistic” or “idealistic” individuals and groups that advocate real solutions; and

Check – the Smith bill marginalizes the radical idealistic folks in the moratorium campaign and diverts from my critique.

6) are “politically safe”, i.e. they lock in the status quo and pose no threat to powerful elites, corporations, or politicians.

Check – NJ’s energy, pipeline, petro-chemical and transportation and housing industry lobbyists are happy and not opposing the bill. 

Once one understands how the elite charade is played, it’s like shooting fish in a barrel.

The master’s tools will never dismantle the master’s house. ~~~ Audre Lorde

[Update below]

Today, NJ Spotlight reports that Despite Superstorm Sandy, Building in Risky Flood Zones Continues Unabated:

Superstorm Sandy wiped out thousands of homes at the Jersey Shore, but the increasing threat of devastating coastal storms like it has hardly deterred building in areas most at risk of chronic flooding as sea levels rise from climate change, according to a new analysis.

Confirming exactly the troubling Foundation driven news sourcing I wrote about just yesterday, Spotlight quotes sources from Foundation funded groups American Littoral Society and NJ Future:

“Overall, we only are half-paying attention to the lessons of Sandy,’’ said Tim Dillingham, executive director of the American Littoral Society, a coastal advocacy group. “For the most part, the decision was to stay put and live with the risk. We simply don’t want to face up to the actual degree of risk of building along the Shore.’’ …

“We haven’t gotten the message,’’ said David Kutner, planning manager for New Jersey Future, a smart-growth organization. “We have this cultural and unchangeable connection to the Jersey Shore. The threats to properties are enormous. It is going take some time to get to the point where we can’t keep building at the same intensity at the Shore.’’

Notice how Dillingham of ALS and Kutner of NJF both deploy the word “we”. We my ass!

Note how Dillingham uses the passive voice, as if there were no decisionmaker and government policy had no role in those irresponsible decisions: “the decision was to stay put and live with the risk“. Whose decisions?

That kind of evasive disingenuous rhetoric is no accident.

It is designed to obscure their own failed involvement in the problem and to dodge tough political accountability that might threaten their organization’s funding.

Specifically, both ALS and NJF not only failed to hold the Christie administration accountable for the policies that denied climate change and led to even more development in risky flood prone areas, both groups also received funding from the Christie administration to promote ineffective voluntary local “coastal resilience’ projects. (A Sham Charade identical in design to DEP’s outsourced, voluntary, private, grant fueled “Sustainable NJ” program)

(ALS’ most recent financial statement shows they received over $1.2 million in government grants, more than 20 TIMES the revenue they got from members. That is NOT an indicator of a democratic organization. No wonder ALS never bites the government hand that feeds them. ALS ED Dillingham was paid almost $117,000, which likely puts him in second place in the career compensation money game behind NJ Audubon CEO Eric Stiles, who brought down $126,000 in salary alone. The private sector corporate careerist greed is manifest in the Foundation world too. )

Those local, voluntary and politically safe “resilience” projects have failed miserably, as the Spotlight story and Report document.

In exchange for that Christie administration funding, ALS and NJ Future distracted the press and the public from Christie’s policy failures (e.g. provided political cover) and undermined more effective DEP Statewide regulatory solutions and new legislation to create a regional Coastal Commission.

I don’t know who Dillingham and Kutner are referring to as “we”. Not me. We called out Christie “rebuild madness” from day 1. (see:

• Christie Abdication: DEP Commissioner Martin Waives Rules for Rebuilding Wiped Out Infrastructure
• Rutgers Sea Level Rise Maps Being Ignored by DEP
• Legislators Go All in With Gov. Christie On Sandy Rebuild Madness
• “Strategic Adjustment” – Or Rebuild Madness?
• The Deafness Before the Storm

Also compare how we speak about these issues in prior Spotlight stories:

• NJ Spotlight: “State Agency Waiver Environmental Rules to Speed Rebuilding After Storm – Environmentalists argue that rebuilding without planning invites further disasters
  

“Restoring basic public infrastructure will be a critical first step toward the recovery of our cities and towns,’’ [DEP Commissioner] Martin said. “For emergency repairs, we cannot let bureaucracy get in the way. Red tape should not and will not hold up this vital work.’’ […]

“The [Martin] order amounts to a total abdication of DEP’s responsibility to supervise responsible planning and environmentally sound permitting of critical public infrastructure,’’ said Bill Wolfe, director of the New Jersey chapter of Public Employees for Environmental Responsibility, a public watchdog group

ALS & NJF Provide A Classic Example of The “Elite Charade”

Writer Anand Giridharadas’ groundbreaking investigative book “Winners Take All – The Elite Charade of Changing the World” documents how elite philanthropists and private foundations have hijacked real social change and engaged in a corrupt enterprise.

I wrote a post back in August, based only on a radio interview, see: “The Elite Charade” – Philanthropic Foundation Fail. I’ve since read the book.

Elites engage in this charade by avoiding conflict or taking personal or career risks, and not calling for sacrifices like increased taxes, lower corporate profits, or more regulation. Elites evade politics and efforts to hold corporations accountable.

Instead, they push fake self serving private market based “win-win” solutions to public policy problems. The fake solutions not only fail, but at the same time they undermine democracy, constrain and replace government’s role, and perpetuate their elite advantage by locking in the status quo. Welcome to “MarketWorld”.

He writes:

when elites assume leadership of social change, they are able to reshape what social change is — above all, to present it as something that should never threaten winners.

Ironically and hypocritically, the same elites that create social problems by hoarding wealth, increasing inequality, and attacking government regulatory intervention and redistribution policies, feel that they are best suited to solve the very problems they create:

when elites put themselves in the vanguard of social change, it not only fails to make things better, but also serves to keep things as they are. [That] takes the edge off some of the public’s anger at being excluded from [economic] progress. It improves the image of the winners. With its private and voluntary half measures, it crowds out public solutions that would solve problems for everyone…. We should recall Oscar Wilde’s words about such elite helpfulness being “not a solution” but “an aggravation of the difficulty…. Just as the worst slave owners were those who were kind to their slaves, and so prevented the horror of the system being realized by those who suffered from it, so in the present state of things ..the people who do the most harm are the people who try to do most good.”

The late emminent Princeton University political theorist Sheldon Wolin predicted all this is his classic early 1980’s essay written just after the Reagan administration assumed power: “The New Public Philosophy”:

NJ Environmental Groups Miss The Boat

Meanwhile, as a massive hurricane barrels toward the east coast …

Electric Bus Campaign Could Have Been Designed By PSEG & Big Oil & Gas

[Technical Update Below – 9/13/18)

NJ Spotlight reports today that environmental groups have created a political campaign focused on retrofitting NJ Transit’s bus fleet, see:

• NJ URGED TO ELECTRIFY TRANSIT SECTOR RAPIDLY, STARTING WITH BUS FLEET

This “campaign” comes at a time when the focus should be on the fact that NJ Gov. Murphy must deliver on his repeated campaign pledges to make it a top priority to rapidly and aggressively respond to the climate crisis and convert NJ’s fossil and nuke based electric infrastructure to 100% renewable energy (solar, wind, geothermal, etc) by 2050.

To meet these goals, Murphy has issued Executive Orders that directed:

1) the Board of Public Utilities (BPU) to exercise regulatory powers to create a financing mechanism for 3,500 MW of off shore wind  and to adopt an Energy Master Plan (EMP) to lay out a detailed path to 100% renewables. BPU is now holding public “Stakeholder” meetings to solicit public comments on necessary revisions to the Christie EMP.

2) the BPU and the Department of Environmental Protection (DEP) to renegotiate the prior agreement and rejoin the northeast States Regional Greenhouse Gas Initiative (RGGI). A draft RGGI regulation is expected to be proposed for public comment this fall.

Additionally, the Murphy administration is subject to legislation:

3) the voluntary greenhouse gas emission reduction goals of the 2007 Global Warming Response Act (80% below 2006 emissions by 2050);

4) the legal mandates of a 2004 law to develop zero emission (electric) cars and – implicitly – the necessary infrastructure to recharge them. There are no concrete plans in place to demonstrate compliance with either law; and

5) recently enacted legislation requires 21 percent of the energy sold in the state be from Class I renewable energy sources by 2020; 35 percent by 2025 and 50 percent by 2030, including 3,500 MW of offshore wind by 2030. Utilities are required to reduce electricity usage by 2 percent and natural gas by 0.75 percent, and install 600 MW of energy storage by 2021 and 2,000 MW by 2030.

(I highlighted energy sold in the state because millions of NJ ratepayer dollars are being shipped out of state to purchase so called “renewable energy credits” from energy generated in other states (e.g. Illinois wind and dirty Maryland garbage incinerators) and are doing nothing to promote NJ based clean energy, jobs or economic development. More to come on this “RPS” sham in a future post.]

Actual implementation of these programs will cost billions of dollars and they will be extremely complex to design and implement (even without political attack by corporate power and special interests (e.g. the PSEG union got a no layoff deal in the nuke bailout).

The aggressive timetables, complexity and powerful corporate and political resistance that will challenge the BPU – in light of BPU’s historical track record in failing to meet legal deadlines – do not inspire confidence that the timetables or goals will be met.

Additionally, there are external legal and technical constraints imposed by NJ’s 1999 Electric Deregulation and Energy Competition Act (“EDECA”), the PJM regional grid operator, the other RGGI states, NJ’s RGGI statute, and the Federal Energy Regulatory Commission.

NJ laws also erect restrictions on municipal and cooperative owned power systems and limits the size renewable energy systems and economic incentives known as “net metering”:

System size of renewable energy facility is limited to that needed to meet annual on-site electric demand. A.B. 3723 enacted in May 2018  authorizes Board of Public Utilities (BPU) to limit net metering to 5.1% of the total annual kWh sold in the State by each electric power supplier during prior one year period. The legislation instead of providing a firm aggregate limit on net metering, it authorizes the BPU to cease offering net metering if this capacity is reached.  BPU may continue to allow net metering even if this threshold is reached.

The limit on size to annual demand blocks expansion of renewables, restricts competition and protects the corporate utilities – as does net metering limit of just 5.1%.

Finally, there are major loopholes in DEP regulations with respect to climate change (both emissions reductions and adaptation) and DEP’s GWRA implementation recommendations have been completely ignored, see:

• NJ Environmental Regulations Ignore Climate Change
• A Decade After Passage of The NJ Global Warming Response Act: From “Toothless” to a “Dead Letter”

So, it is almost a certainty that  none of this will be accomplished – absent huge public demands that are organized by informed analysis and mobilized in support of aggressive government policy response.

So, how has NJ’s environmental and climate community responded to these challenges?

NJ Spotlight reports today that they have created a political campaign focused on retrofitting NJ Transit’s bus fleet, see:

• NJ URGED TO ELECTRIFY TRANSIT SECTOR RAPIDLY, STARTING WITH BUS FLEET

Of course, the NJ energy sector and corporate NJ are breathing sighs of relief as environmentalists divert public attention from anything that could change the corporate status quo or cost them a thin dime.

Electric bus fleet replacement cost would be at least $660 million, and all of it from PUBLIC money, not one corporate dollar. *** There were no estimates provided of actual GHG emissions reductions associated with this public expenditure. (*** See Technical Update below)

(To illustrate the cowardly Neoliberal politics that are operating here, consider:  instead of a small bore public transit bus focus, why not a campaign to mandate that Amazon, Fed Ex, and UPS electrify their fleets and install solar on millions of square feet of warehouse rooftops?)

For context, that $660 million is about 12 years of all the new RGGI funds and almost 3 years of all annual Societal Benefit Charge (SBS) funds.

This latest “green” “campaign” ignores all of the above challenges and retains the typical silo single issue focus, incoherent, and “safe” politics that Naomi Klein criticized the environmental community for in her recent book “This Changes Everything: Capitalism Vs. The Climate”: (review)

The immediate threat to the earth “changes everything” in the sense that just adding “the environment” to our list of concerns is not good enough.

The sheer scale of the problem necessitates a politics that can take on capitalism. We must do away with any notions, Klein asserts, that the environmental crisis can be contained and eventually rolled back through policy tinkering (though addressing symptoms is necessary); technical fixes (though sensible technological advances should be vigorously pursued); or market-based solutions (no qualification necessary — it’s silly to expect the market to solve problems it was instrumental in creating). Something far more comprehensive is required.

To emphasize this, however, is not just to expose the painfully inadequate solutions of the Right, but also to ask the hard questions of the environmental movement. As important as the movement has been to placing the issue on the agenda and bringing young people in particular into the struggle, its organizational forms simply do not match what we are up against. After decades of engagement, the environmental movement remains relatively marginal, capable of slowing down this or that trend but not of reversing and correcting capitalism’s reckless trajectory.

Klein is especially critical of those sections of the movement that jumped on the “green capitalism” bandwagon in the 1970s.

FOSSIL PHASEOUT AND MORATORIUM IGNORED

Meanwhile, as a massive hurricane barrels toward the east coast, out west, California Gov. Jerry Brown just signed a law imposing a phase out of fossil fuels by 2045 (yes, I understand that the phase out is not mandatory and has no enforcement teeth. But NJ groups are not even asking for a voluntary aspirational phase out goal.)

Similarly, NJ grassroots climate activists are demanding that Murphy’s BPU Energy Master Plan phase out fossil fuels and impose a moratorium on new fossil infrastructure.

Others – including myself – advocate that NJ activists embrace the Trade Unions For Energy Democracy. (be sure to read their Working Papers).

Why no environmental group campaign on any of these aggressive policies?

Others, like the “green capitalism” groups Klein criticizes,  are calling for a “carbon tax” – e.g. the State of Washington (where I am writing this post from) has a fall ballot initiative to impose a $15 per ton carbon tax.

By comparison, RGGI credits are selling for about $2 per ton (correction – most recent auction was $4.50)  and NJ’s RGGI law has an “exit ramp” that would trigger legislative review if the price of a RGGI credit exceeded $7 per ton. RGGI will not make a dent in reducing NJ’s current GHG emissions.

By comparison, economists – and even the EPA – estimate that the real “Social Costs of Carbon“ are over $100 per ton (depending on assumptions, including interest rates). Regardless, Trump repealed these EPA SCC estimates and barred federal agencies from using them.

At least 3 major new fossil powered gas power plants – almost 2,000 MW – and major fossil pipelines currently are under review by the Murphy DEP and BPU.

NJ’s electric grid requires massive new multi-billion dollar investments to be able to handle renewable energy.

NJ’s rechargeable vehicle infrastructure is woefully inadequate and NJ’s pubic transportation infrastructure is crumbling.

There is no attention on housing and the greenhouse gas emissions of other sectors.

Meanwhile, as a climate warming driven massive hurricane barrels toward the east coast, NJ, a highly vulnerable coastal state wiped out by Superstorm Sandy, still has no climate adaptation plan. That storm represents another opportunity to build public awareness and pressure Gov.Murphy to respond, but instead the environmental groups blow the moment and launch a electric bus campaign. Timing is nothing, eh?

None of these issues are getting adequate governmental, media or environmental group attention and resources.

What the fuck are they all doing with an electric bus campaign?

[End Note: I understand that environmentalists also justify this campaign on environmental justice and urban air quality grounds. Don’t be fooled. In a forthcoming post, I will expose the sham of Gov. Murphy’s Executive Order 23 on environmental justice and explain how it limits State agencies – especially DEP – to toothless “guidance”, not regulation.]

[Technical Update  9/13/18 – I tracked down the Environment NJ national Report supporting this campaign. According to that report:

For context, according to the most recent 2018 US EPA Greenhouse Gas Emissions Inventory:

Do the math – at the national level, 100% fleet replacement of electric buses would reduce national GHG emissions by just 0.03% (and cost unknown billions of dollars): (2 MT/6,511.3 MT) x 100 = 0.030%

According to the most recent NJ DEP GHG emissions inventory, NJ emits about 110 million tons (MT) of GHG per year (2015). Although the transportation sector is the largest emissions sector (almost 50 MT), the driver for those emissions is increases in vehicle miles travelled, which would dwarf any reductions associated with electric bus retrofit:

In NJ,According to the NJ Spotlight article, there are 2,200 NJ Transit buses. According to national bus registration data, NJ has over 25,000 buses. So the campaign targets just 8% of buses. Worse, NJ represents less than 5% of national buses. So, the total emissions reductions of electric buses as a percentage of national emissions are almost invisible: (0.03%/20)= 0.0015%.

Worse – and I won’t go into details here that would further embarrass and discredit my former colleagues – there is evidence that suggests that the “campaign” is motivated by organizational economic self interest and promotion of business interests that contribute financially to environmental groups. Readers interested in the basis for these claims should just Google. You’ll find stuff like this:

The Report was released AT THE corporate manufacturing facility in California. The press release named the company. It was part of the political buildup for the Gov. Brown Climate Summit in San Francisco. Here’s the advertisement – corporate promotion – press release:

“Burlingame, CA – Jersey Renews partners, including Environment New Jersey, GreenFaith and Jobs Move America, joined Environment America and Proterra, a cutting-edge electric bus manufacturer in Silicon Valley, in hosting delegations from ten states around the nation for a tour of Proterra’s bus factory, and a discussion on the state of the industry and hastening the transition to zero carbon transportation.

Makes Sierra Club small business boutique promotion in Boston look like chump change.

This s really bad.

Looks Like Commissioner McCabe Didn’t Get The Memo

We’ve previously ridiculed the “moral imperative” on climate change that purportedly drove NJ Gov. Murphy’s recent nuclear bailout and explained how current NJ DEP regulations fail to address climate change.

Today we – very briefly – highlight another huge contradiction between the Gov.’s purported policy goals and his DEP’s actual performance thus far – a performance that makes it impossible to achieve the Gov.’s legislative goals, absent significant policy changes at DEP.

NJ Spotlight recently reported:

Competitive Power Ventures, the owner of a 725-megawatt power plant in Woodbridge Township, is seeking approval to build another natural-gas plant adjacent to its existing unit in the Keasbey section of the community….

The proposal is the fourth natural-gas plant seeking necessary approvals from local and state permitting authorities. But it also raises questions about whether the sector has absorbed the message from the Murphy administration that it wants to have 100 percent clean energy by 2050.

Despite previously reporting on DEP approvals of proposed new gas plants, Spotlight chose to give DEP a pass and merely question whether “the [gas] sector]” has absorbed Gov. Murphy’s message.

The Spotlight story concluded with this “he said” claim (instead of a fact claim):

Environmentalists say the new natural-gas plants conflict with that [Global Warming Response Act] target.

Aside from the meek “Environmentalist say” characterization, and failure to mention the fact that DEP has begun green lighting the construction of almost 2,000 MW of new gas power plants and renewed and issued new permits for major gas pipelines, Spotlight knows that there is really no question that there is a conflict between the proposed new gas plants and Gov. Murphy’s purported goals.

Here’s what Gov.Murphy’s legislation actually says about gas infrastructure:

(7) In order to meet the goals under the “Global Warming Response Act,” P.L.2007, c.112 (C.26:2C-37 et seq.), to reduce greenhouse gas emissions 80 percent by 2050, it will be necessary to significantly reduce emissions from the electric power generation sector. This will require reducing the State’s heavy reliance on natural gas for electric power generation, the primary source of emissions from the electric power generation sector. ~~~ P.L. 2018, c. 16

Did DEP Commissioner McCabe get the memo?

Or Did Murphy not write one?

DEP Invokes A Broad Categorical Secrecy Claim Over DEP Internal Communications

DEP Creates New Secret Category – A “Ghost File” For Withdrawn Permit Applications

Protecting Pipeline Corporations While Keeping The Public In The Dark

The so called “deliberative privilege” under OPRA was designed as a narrow exemption to protect the legitimate “deliberations” of the final decision makers in State agencies in making policy decisions.

It was NOT intended to – and it does not – throw a broad and categorical secrecy blanket over scientific and factual information that is gathered and analyzed and communicated by State agency employees, crucial information that forms the factual basis of those policy decisions. The NJ Supreme Court explains:

OPRA exempts from the definition of “government record” documentary information that constitutes “inter-agency or intra-agency advisory, consultative, or deliberative material.”  …

The deliberative process privilege “permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” [cite] The essence of the privilege is simple, its rationale built on powerful logic. As explained by Justice Reed when introduced for use in the federal courts, the privilege is necessary to ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached.

Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen. It is true that it now submits itself to suit but it must retain privileges for the good of all.

This seems to prefer secrecy to transparency and public disclosure.

However, there are important distinctions that must be made in determining what documents are truly “deliberative” and exempt under OPRA. They involve the nature of the information (e.g. whether it is fact or science, versus advise or opinion) and the level within the agency that the information is generated in relation to the final agency decsion-maker (e.g. the “nexus”, or its role in deliberation and how close it is to the final decision by the Commissioner). The NJ Supreme Court explains:

Because the privilege is a qualified one, a litigant can still obtain the requested materials upon a showing that the need for the materials overrides the government’s interest in confidentiality.  Ibid.  At that point, the burden is on the litigant to demonstrate such a compelling need:  “[I]n all but exceptional cases it is considered against the public interest to compel the government to produce inter-agency advisory opinions.”  Ibid. [cite]. In making the determination whether a litigant has demonstrated an overriding need, a court should consider the following factors:  “(1) the relevance of the evidence;  (2) the availability of other evidence;  (3) the government’s role in the litigation;  and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”  

For example, a DEP field technician’s memo to his supervisor summarizing water quality data is a scientific communication that is far down the management chain and deliberative process for a final permit decision made the Commissioner.

In contrast, a memo or email to the DEP commissioner from an Assistant Commissioner that summarizes the issue, balances public comments, and makes recommendations on a water quality permit decision legitimately could be considered to be “advisory, consultative, and/or deliberative” exempt under OPRA.

The NJ Supreme Court lays out the framework – it is clear that there can be no blanket claims to “deliberative privilege”, and clearly, science and factual information is distinct from consultation and advice, as is the role of the information in the “nexus” of the deliberative process.

In EDUCATION LAW CENTER, On Behalf of Abbott v. Burke Plaintiff Children, Plaintiff-Respondent, v. NEW JERSEY DEPARTMENT OF EDUCATION, Defendant-Appellant, the Court ruled: (emphasis mine)

We hold that a record, which contains or involves factual components, is entitled to deliberative-process protection when it was used in the decision-making process and its disclosure would reveal deliberations that occurred during that process. By that standard, an individual document may not be capable of being determined to be, necessarily, deliberative material, or not, standing alone.   A court must assess such fact-based documents against the backdrop of an agency’s deliberative efforts in order to determine a document’s nexus to that process and its capacity to expose the agency’s deliberative processes.

In my case, DEP has abused OPRA by throwing a broad secrecy blanket over virtually all DEP science, data, and technical analyses conducted by DEP professionals and scientists, regardless of its role in the deliberative process.

DEP staff are “public servants”. They work for the public and virtually everything they do is “on the record” and public, not secret. How could DEP possibly get away with trying to keep all DEP emails on permit reviews secret? For years, in Democratic and Republican Administrations, I have filed OPRA requests and been provided DEP emails regarding permit reviews.

In denying my OPRA, DEP arrogantly failed to even justify their claims about the deliberative process. They imply categorically denied my request.

There is no way that all DEP communications regarding renewal of the SJG permits could all reflect DEP’s  internal, pre-decisional policy recommendations.

Obviously, there is a strong public interest in knowing what DEP professionals say about the application of DEP rules for renewal of permits with respect to the hugely controversial SJG pipeline.

II) Ghost Permit Files – Public Comments Go Down The Memory Hole

DEP also created an entirely new category of OPRA exemption.

I was particularly interested in public comments filed by Princeton Hydro on that permit application, which I was led to believe identified fatal flaws in the permit application that would force DEP to deny the permit.

I suspected that by allowing Transco to withdraw the flawed permit application and re-apply instead of simply denying the application, that DEP was protecting Transco.

I assumed that someone in DEP had a similar view and had put it in writing during the permit application process.

So I filed the following requests for public records:  I boldfaced relevant request denied: