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NJ’s Last Liberal Governor

Florio knew how to Govern and use State planning and regulatory powers in the public interest

Former Governor Florio was in Trenton last week for a press conference, which I wrote about briefly regarding his energy policy legacy (see this).

During Florio’s remarks, he reflected on his own accomplishments – implicitly criticizing the huge failure of Gov. Christie who has done nothing but roll back environmental protections – by mentioning three towering achievements he is generally well know for.

The first was the federal Superfund law, where Florio is well recognized as a key sponsor and champion of toxic site cleanup.

The second was the Pinelands Act, that he is less well known for, while Governor Byrne tends to get the credit.

But Florio sponsored the federal Pinelands National Reserve legislation, which was enacted by Congress before and was the impetus for the NJ Pinelands Act.

Florio connected that past to today’s controversies by recalling that the Pinelands were created in response to the threat of pipelines from proposed off shore oil drilling to Delaware River refineries.

The third was the less well known Clean Water Enforcement Act, which set mandatory penalties for violations of water pollution permits that had gone unenforced by DEP for years.

But Florio had other huge achievements that were national models for environmental policy at the time.

Florio gets virtually no credit for any of them today – so here they are:

Pollution Prevention Act

The Paradigm Never Shifted – Promise of Pollution Prevention Act Betrayed

In 1991 – the NJ Legislature passed the Florio administration’s groundbreaking Pollution Prevention Act (PPA).

The NJ law built on an expanded the federal Emergency and Community Right to Know Act of 1986 (EPCRA).

The NJ law also built on and expanded the federal PPA law. 

The federal Pollution Prevention Act (PPA) of 1990 (42 U.S.C. §13101 et seq. (1990)) was a paradigm shift in the control of pollution (and hazardous waste). Previous environmental laws and regulations emphasized what are known as ““end of the pipe” pollution controls in individual air, water and waste permit programs.

The” PPA concept moved the control of pollution upstream in the manufacturing process to prevent the waste from being generated in the first place. The PPA also created a “Facility-wide” permit process, to avoid the bureaucratic “silos” of individual air, water and waste permits, and the shifting of pollution from one environmental media to another: air to water; water to air; land to water, etc.

The NJ PPA expanded on this federal law. The NJ PPA implemented the concept of “source reduction” in waste production “upstream” by requiring affected companies to develop and submit a 5-year pollution reduction strategy and file a Release and Pollution Prevention Report (RPPR). The NJ Release and Pollution Prevention Report collects data for New Jersey Right to Know Act (NJRTK).

The key policy reform was to require  industry to reduce the use of toxic chemicals.

The Act was supposed to usher in a new era of “toxics use reduction” and force the chemical industry to consider safer alternatives and less hazardous substitute products, processes, and chemicals.

While the law mandated that industry prepare the pollution prevention plans, Section 35 of the Act gave DEP a hammer to mandate implementation of the pollution plans in the various DEP air and water pollution and waste management regulatory program permits.

The industry viewed the act as an existential threat, and lobbied vigorously behind the scenes to kill it in its crib.

Industry won: DEP never adopted regulations to implement this authority to require that pollution prevention plan reductions be enforced via DEP permits.  Thus, the promise of the Act was never realized, as industry went back to business as usual.

Subsequent governor’s – Whitman and now Christie – issued Executive Orders that reverse NJ’s historical leadership and effectively no longer allow NJ DEP to enact more stringent requirements than federal minimums.

Solid Waste Source Reduction – Huge Increase In Recycling Rate – from just 25% to over 65%

As I wrote in the post on Florio’s energy  legacy, he issued Executive Order #8, which did far more that create the Emergency Solid Waste Assessment Task Force. He also issued EO#91 which promoted recycling.

Under the policy and planning process created by Executive Order #8, Florio fundamentally changed NJ’s solid waste policy, including a new emphasis on “source reduction”, materials management, and maximum feasible composting and recycling.

Florio created a Statewide Solid Waste Plan whereby the State DEP would take the lead in policy and planning under a State Plan, a huge reversal from the prior County dominated approach.

That leadership is what designed the successful and popular recycling program we now have – which effects virtually every home and business and institution in NJ’s 566 municipalities.

Unfortunately, however, for similar reasons the Pollution Prevention Act was killed in its crib, the DEP’s spild waste “source reduction” policy was killed by industry opposition.

They industries saw it as a huge expansion of DEP power into their manufacturing operations, akin to the model in Germany, where industries are required to take responsibility for the waste that results from their products and therefore have incentives to design products to reduce waste.

It didn’t happen here. Huge missed opportunity.

Killed Expansion of The Garbage Incineration Industry In NJ

Finally, Florio killed the incineration industry in NJ.

At the time, DEP had approved 21 county incinerator based plans, several had been built or under construction or too far along to be stopped (I’m thinking Essex, Union, Warren, Camden) and several had received DEP permits and sold bonds.

Florio did this via his moratorium in EO #8 and new policies in DEP’s Statewide Solid Waste Plan.

Those new planning policies included considering the incineration technology an “option of last resort” that was required to show consistency with new aggressive source reduction and recycling goals. In addition, any incineration project had to be regionalized.

Florio strategy deployed executive orders, DEP planning and regulatory powers, BPU public utility powers, Department of Community Affairs Local Finance Board powers, and even Department of Treasury State Procurement powers to implement his policies.

Enforce The State Plan In DEP Regulatory Programs

Florio was a champion of land use planning – he issued Executive Order #114, designed to implement the NJ State Plan throughout State government.

That was a particularly bold challenge at DEP, where for the first time a larger planning vision and framework were used to guide DEP planning, regulations, and permit decisions.

That EO led directly to the Watershed Planning program, another progressive innovation that was killed by political opposition and later hijacked by the Whitman Administration, including the CAFRA “reforms”.

Here is the EO:

1. All State Departments and agencies shall:

a. Adopt and incorporate as part of their agency programmatic mission, policies which comport with the State Plan and act in a coordinated fashion in investing resources at the State and local level in implementing the State Plan and achieving their programmatic missions.

b. In their joint endeavors to implement the State Plan together with the State Planning Commission, encourage growth and development and direct infrastructure to locations and in patterns recommended by the strategies and policies contained in the State Plan.

c. Adopt policies which facilitate the establishment of development “centers” and encourage development which is consistent with the policy objectives of “planning areas” which constitute the “resource and management structure” of the State Plan.

d. Participate and cooperate with the Office of State Planning in its review and assessment of the functional plans of the departments or agencies, including, but not limited to water supply, natural resources, air quality, energy, open space and historic conservation, affordable housing, transportation, airport systems and rail systems, and encourage interdepartmental and interagency participation on advisory bodies related to policy and plan development to assure coordination in the implementation of the State Plan.

e. Support the Office of State Planning in the fulfillment of its statutory responsibilities with respect to its planning activities, including but not limited to, the legislatively mandated infrastructure needs assessment, monitoring, and evaluation program.

f. Collaborate in data base development and the exchange of information among departments and agencies, and establish appropriate institutional mechanisms, including data compatibility, to assure that data base development and the exchange of information occurs.

g. Coordinate efforts with the Office of State Planning to assist municipalities in gaining designation of development “centers.”

h. Coordinate efforts with the Office of State Planning to assist distressed cities in developing Strategic Revitalization Plans.

i. Report to the Governor and Office of State Planning on June 1, 1994, and every six months thereafter, on their efforts in furtherance of this Order.

Conclusion

Florio was perhaps NJ’s last Governor that knew how to Govern and used State planning and regulatory powers in the public interest.

That is an essential legacy that no one wants to talk about – sadly, not even Florio himself.

In his remarks, Florio went out of his way to criticize those  who “seek to use old tools to solve new problems”  – thereby rejecting the essence of his own powerful legacy, which is still relevant today.

Climate Emergency Justifies Fossil Moratorium

Former Governor Florio spoke at a Trenton press conference on Thursday about some of his perspectives on climate change and energy policy.

He began by noting that longevity has its benefits, in terms of providing perspective and experience in addressing policy challenges.

I was able to ask my second question of a Governor at a press conference – my first didn’t go so well – so I want to reflect on that question today to show how Florio’s leadership on integrating energy  and environmental policy remains a relevant model and some of his policy experience and tools can still be used to address very similar policy problems.

First of all, few seem to recall that way back in 1990, Gov. Florio expanded the Department of Environmental Protection’ (DEP) mission to include energy, forming the Department of Environmental Protection and Energy (DEPE). This integration began an incredibly innovative public policy, planning, and regulatory process.

The initial policy thrust and programmatic focus of that integration was on solid waste and air quality, but a future expansion to the issue of climate change was the logical progression and clearly on the horizon. NASA scientist Jim Hansen had just first put the climate issue on the public radar in his groundbreaking Congressional testimony in 1988, as the NY Times then reported:

Global Warming Has Begun, Expert Tells Senate

WASHINGTON, June 23— The earth has been warmer in the first five months of this year than in any comparable period since measurements began 130 years ago, and the higher temperatures can now be attributed to a long-expected global warming trend linked to pollution, a space agency scientist reported today.

Until now, scientists have been cautious about attributing rising global temperatures of recent years to the predicted global warming caused by pollutants in the atmosphere, known as the ”greenhouse effect.” But today Dr. James E. Hansen of the National Aeronautics and Space Administration told a Congressional committee that it was 99 percent certain that the warming trend was not a natural variation but was caused by a buildup of carbon dioxide and other artificial gases in the atmosphere.

After ignoring and denying this warning, almost 30 years later, today Hansen and virtually all climate scientists warn that we must keep at least 80% of known fossil fuel reserves in the ground if we are to avoid more than 2 degrees (c) of warming and climate chaos.

Governor Florio was on the cutting edge and way ahead of the policy curve by institutionalizing energy and the environment in DEPE and beginning the challenge of integrating planning and regulation.

Obviously, the energy industry saw the writing on the wall and perceived the strategic threat of regulation, because the first thing that the Whitman Administration did in 1994 was to dismantle the Florio effort and – like Ronald Reagan’ removing Jimmy Carter’s solar panels from the White House roof – ripped the letters off the DEPE building, leaving the original DEP logo and a charcoal colored stain where the “E” had stood for 4 years.

But the energy industry went way beyond that –

They killed the inchoate integrated energy and environmental regulatory baby in its crib.

Governor Whitman pushed the industry’s energy deregulation initiative, which was enacted by the Legislature and has proven a huge failure.

But Governor Florio was able to implement incredibly important policy with respect to integrating energy and environment with respect tho solid waste policy that Whitman was unable to dismantle (although she tried hard to do just that).

Few know that the Florio policy is what produced NJ’s huge expansion of recycling and killed more than a dozen proposed garbage incinerators.

That’s the feature I want to focus on today to show the relevance for responding some of the fossil infrastructure controversies now underway in NJ.

The challenges of 1990 are very similar to today’s

Consider these parallels:

1. In 1990, Gov. Florio inherited Governor Tom Kean’s Solid Waste Plan. That plan proposed 21 garbage incinerators, one in each of NJ’s 21 counties.

In 2015, we are saddled with Governor Christie’s Energy Master Plan (EMP) that promotes a huge expansion of gas pipelines and power plants.

2. In 1990, the public and environmental groups were vigorously opposed to building garbage incinerators in their towns. Huge political battles broke out across the state in opposition to various proposed burners.

In 2015,  the same battles are occurring across the state on a score of fossil infrastructure projects, from pipelines (gas and oil), bomb trains, power plants, off shore LNG, fracking, etc.

3. In 1990, the Kean Plan did not consider statewide need in relation to the design capacity of all those 21 garbage incinerators.

As a result, there was HUGE excess capacity that was 2 -3 times the amount needed for NJ’s garbage. As a result of this excess capacity, garbage imports from NY City and Philadelphia would expand and be subsidized by NJ taxpayers, while – adding insult to injury – NJ bore the brunt of the pollution and environmental impacts.

In 2105, the Christie EMP does not consider NJ’s demand for energy or natural gas in promoting pipelines and power plants that will serve NY and the northeast and mid-Atlantic region, and again, NJ bears the environmental impacts and safety risks.

4. In 1990, the Kean Plan failed to consider the total cost of building 21 garbage incinerators, which exceeded $3 billion. Those costs would be borne by ratepayers and taxpayers, not the private investors reaping the huge unregulated profits (BPU had been stripped of its public utility “rate base – rate of return” powers over the incineration industry by the 1985 “McEnroe” legislation, a prelude to Whitman’s 1999 complete deregulation).

In 2015, the Christie EMP fails to consider the total cost of the glut of pipelines and power plants, which also are paid for by ratepayers and taxpayers, while the energy industry reaps windfall profits.

5. Perhaps most importantly, in 1990 the Kean plan failed to consider the far superior economically and environmentally preferable alternatives of source reduction and recycling. The Kean plan failed to consider how garbage incineration technology and over-capacity fundamentally conflicted with those preferable alternatives.

In 2015, the Christie EMP fails to consider the far preferable alternatives of energy efficiency and renewable energy or how the glut and artificially low price of natural gas undermines those far preferable alternatives.

6. In 1990, the DEP and BPU roles were to rubber stamp the private sector’s projects.

Despite having clear statutory authority and planning and regulatory tools to protect the public interest and the environment, and despite enormous public opposition to the incineration industry, State government’s role was to rubber stamp their permits and promote industry profits.

In 2015, Governor Christie has aggressively adopted the same pro-industry, anti-regulatory policy and passive role for State government.

[Even the way capital intensive garbage incinerators were financed by debt backed by mandatory waste flow is analogous to public utility model of control over the grid versus competition from energy efficiency, demand management, distributed renewables and net metering.]

It doesn’t have to be that way – we can learn the lessons of 1990.

Florio Governmental Response in 1990 is Still Relevant Today

To respond to the systemic failures of State government planning and regulation and the demands of the public and environmental groups, in addition to institutionalizing and integrating energy and environment at the new DEPE, on April 6, 1990, Gov. Florio issued Executive Order #8 , which established a moratorium on garbage incinerators.

EO #8 also created an “Emergency Solid Waste Taskforce” with the following mission:

3. Within 120 days of the date of this Order, the Task Force shall submit recommendations to the Governor on the following:

a. A program to minimize the generation of solid waste and maximize reuse, recycling and composting. This program should specifically identify the percentages of waste which can be removed from the solid waste stream by reuse, recycling and composting and propose a schedule for these reductions in the waste stream;

b. Alternatives for the disposal of solid waste that cannot be removed from the waste stream through source reduction and

c. The benefits of and a process for regionalizing solid waste disposal facilities where appropriate;

d. The need for revision of environmental or other standards for resource recovery or other solid waste disposal facilities; and

e. Legislative and regulatory changes which are necessary to achieve the Task Force’s recommendations.

We are now in a climate emergency that is far more profound than the solid waste problems that triggered the Florio “Emergency” Task force.

As noted above, there are tremendous similarities between the nature of the challenges faced by Gov. Florio in 1990 in reversing many years of bad policy and trying to tame a politically and economically powerful $3 billion garbage incineration beast and what we face today.

There is no reason why a similar approach could not be followed today.

That approach would begin with a moratorium on new fossil infrastructure and a radical shift in policy to renewables.

That approach would include immediate DEP efforts to use the Clean Water Act Section 401 certification requirements to deny federally regulated energy projects, like the PennEast pipeline.

Similarly, the Gov. has veto power over off shore projects under federal law, like off shore LNG.

That approach would include a major overhaul of the BPU Energy Laster Plan, much like Florio re-wrote the Kean Solid Waste Plan

But obviously Gov. Christie is not going to do this, but that does not mean that the approach should be rejected by activists and supportive government officials.

Strategically, we can begin to build demand for a moratorium by recognizing that it is feasible, then my organizing around it and demanding it, perhaps at the local level and with the regional planning entities, like the Meadowlands, Highlands and Pinelands.

We have to start somewhere – the tools are out there. History provides a lesson.

Is anyone paying attention?

[*Full disclosure: Back in 1990, after a day’s work at DEP,  I regularly would hole up for a few hours with a guy named Frank Sweeney, Florio’s policy advisor on the environment, in a small office in the State house.

Those work sessions were how the Florio solid waste initiative was crafted.]

If You Don’t Care About Climate Chaos, How About This?

NJ Leads Nation In Antiquated Unsafe Gas Pipelines 

Not One Dollar Should Be Spent On New Lines Until Old Are Replaced

Another Reason To Impose A Moratorium On Fossil Infrastructure

Despite aging and unsafe gas pipelines, more than half of the gas industry is not prepared:

This map and bar chart are from a gas industry survey.

For the full report, see:

• 2015 Strategic Directions – US Natural Gas Industry Report

 And here’s how to scare the gas industry:

Proposed Repeal and “Overhaul” of Water Quality Management Planning Rules

I am taking a few days off – I feel burnt out from the weight of exhausting and massive and unprecedented DEP and climate rollbacks, all coming at once, some of which I have personal involvement with.

Here’s bullets some of the stuff germinating for future posts:

1. BPU final hearing on South Jersey Gas Pinelands pipeline – next steps

2. Legislative veto of Christie flood hazard rules – resolution released by Senate Environmental Committee

3. DEP proposal to repeal and “overhaul” water quality management planning rules

4. As Highlands Regional Plan and DEP regulations are in the crosshairs of the Christie “overhaul” machine, the Highlands Coalition wanders off into a cul de sac of cultural irrelevance

5.  The meaning of the Duke Farms dispute

6. Nancy Wittenberg has got to go

7. The case for a fossil infrastructure moratorium

8. The meaning of the Dodge Foundation’s recent confab

9. Activists speaking from the heart

10. What the US “climate commitments” at Paris COP really mean.

11. Joe Romm got played by Christie Whitman

12. Is the Christie DEP still giving HEDD to major air polluters?

13. Are Dems able to block Christie rollbacks?

14. Will EPA fold in opposition to DEP flood rules? Will they engage in WQMP rule repeal and “overhaul”?

15. Why are NJ enviro organizations so dysfunctional?

16. Energy market collusion by gas pipeline and power plant corporations – scheme smells exactly like the conspiracy and abuse of Enron and has many of the same players and dynamics of The Chairman’s role Port Authority, United, and Atlantic City airport scandals.

17. The NJ Spotlight’s new investigative series on Dirty Secrets.

Just some of the thoughts roiling around in my head right now – need a few days to simmer.

Christie DEP Rollback Strategy Is Hidden In Plain Sight

DEP proposal is no minor “alignment”, it’s a big U-Turn

This is the final post in our series on the Christie DEP’s proposed  “overhaul” of the flood hazard rules, in anticipation of the Senate Environment Committee hearing on Monday 10/19/15 to consider SCR 180, a Resolution that would veto these regulations as “inconsistent with legislative intent”.

I had planned to include 2 additional posts: one on the reservoir designations and drinking water protections and the other on the Hunterdon County Delaware River tributaries that are ground zero in the PennEast pipeline debate. I will address each in future posts.

Today, we go deep into the weeds to explain why a Category  One (C1) stream buffer (known as  a “Special Water Resource Protection Area” (SWRPA) has far more regulatory protections than a “riparian zone”.

Yes, we know that many consider this worse than root canal. But the reason we must do this is because the DEP proposal would repeal the C1 SWRPA and replace it with a “riparian zone”.

Different Legal Bases and Water Resource Objectives 

Before we get into the weeds, we note the biggest difference between a SWRPA and a riparian zone:

A SWRPA is designed to protect water quality from non-point pollution runoff from development by preserving the natural vegetation along a waterbody, which filters pollutants before they enter the water.

A “riparian zone” is designed to reduce the risks of flooding by keeping development out of floodplains and reducing the volume of development in the floodplain that is at risk of flooding. These rules are related to water quantity.

Accordingly, the SWRPA protections are codified in the DEP’s storm water management rules (NJAC 7:8) and are linked and apply to the Surface Water Quality Standards’  “Category One“”exceptional” quality waters (see DEP FAQ on C1 buffers).

The “riparian zone” requirements are codified in the Flood Hazard rules NJAC 7:13 (aka as “stream encroachment”) and apply more broadly to almost all waters that present a flood risk (inland and coastal).

The Christie Rollback Agenda Revealed

To complicate matters, in 2008, DEP amended the Flood Hazard Rules by including the SWRPA rules in them – combining the water quality and flood risk objectives. New rules added hundreds of miles of new C1 streams, but they also significantly reduced the scope of the C1 program and ecological protections, making it far more difficult to designate additional C1’s. (see this rule adoption))

DEP is now using the overlap and inconsistencies between the two sets of different rules as a pretext to repeal the SWRPA protections, a longstanding desire of the development community.

As I’ve written, this rollback objective is revealed beyond a shadow of a doubt in the regulatory history (i.e. DEP rule proposals, public comments, and DEP response to public comments documents); in Governor Christie’s DEP Transition Report and in Executive Order #2. 

The rollback strategy is openly presented in the DEP Transition Report (see “Omnibus Rulemaking” on page 13)

• Reexamine buffer requirements in urban/disturbed areas and Planning Areas 1 and 2 designated for growth under the State Development and Redevelopment Plan (hereinafter referred to as the State Plan) as applied to wetlands, C-1 waters and potential Threatened and Endangered species habitat under Flood Hazard, Stormwater, and Wetlands rules.

Different Regulatory Standards and Protections

We will first present a list of key regulatory protections that SWRPA have, that riparian zones do not.

For those that would like to verify that, below I provide the full text of the SWRPA regulations @ NJAC 7:8-5.5(h), with boldface of the key provisions:

1. Disturbance is not allowed in a SWRPA area in the zone from 300 – 150 feet, unless an applicant can make a rigorous science based demonstration to DEP that the “functional value and overall condition of the special water resource protection area will be maintained”.

There is no similar regulatory protection in the riparian zone.

The riparian zone provides the opposite: there are allowable disturbances for various activities explicitly provided to accommodate development.

2. There is a flat out prohibition on disturbance of the SWRPA inside the zone of 150 feet to the stream, including a prohibition on location of storm water infrastructure.

The riparian zone does not include this restriction and provides the opposite: it allows stormwater infrastructure and development to occur inside this zone.

3. The SWRPA rules do NOT include a waiver provision. This effectively would force an applicant to prove an unconstitutional taking without compensation to a court of law.

The riparian zone explicitly provides a waiver and the proposal would weaken the waiver demonstration requirements.

4. The SWRPA rules do not allow mitigation to offset disturbance.

The riparian zone proposal allows mitigation to offset buffer disturbance.

5. Repeal of the SWRPA protects effects other important DEP rules and federal requirements.

The SWRPA requirements are linked to the DEP Municipal storm water permit requirements. This means that DEP permits can be used to require towns to adopt stream buffer ordinances that are consistent with the SWRPA 300 foot buffers.

The SWRPA are explicitly linked to the DEP Surface Water Quality Standards. This is a regulatory bridge between land use and water quality and it enables enfacement of SWQS on non-point sources of pollution.

The SWRPA are an EPA approved water quality “best management practice” (BMP) and are a key component of NJ’s “anti degradation policy” and “anti degradation implementation procedure” required under the federal Clean Water Act.

This provides a hook to federal review, federal funding, and EPA oversight in a host of federal Clean Water Act programs, including Section 303(d) TMDL, MS4 Municipal storm water permitting, Surface Water Quality Standards, NPDES,  Section 319 NPS programs, Section 404 and 401 Water Quality Certification, and Section 208 Water Quality Management Planning.

Repeal of the SWRPA provisions from the storm water rules has HUGE regulatory significance.

For the wonks, here is the regulatory text of SWRPA @ NJAC 7:8-5.5(h):

(h) Special water resource protection areas shall be established along all waters designated Category One at N.J.A.C. 7:9B and perennial or intermittent streams that drain into or upstream of the Category One waters as shown on the USGS Quadrangle Maps or in the County Soil Surveys, within the associated HUC 14 drainage. These areas shall be established for the protection of water quality, aesthetic value, exceptional ecological signifi-cance, exceptional recreational significance, exceptional water supply significance, and exceptional fisheries significance of those established Category One waters. These areas shall be designated and protected as follows: