WolfeNotes.com

Chairman Smith Guts “Green Amendment” By Deleting The Enforcement Mechanism

DEP Action And Inaction Deleted

EXPLANATION – Matter enclosed in bold-faced brackets [thus] in the above bill is
not enacted and is intended to be omitted in the law.

Chairman Smith amended the proposed “Green Amendment” and released SCR 43 from Committee yesterday. Smith provided no explanation or justification for the amendments in a brief 15 minute hearing, which ended in loud applause from supporters of the Green Amendment.

The amendments listed “a safe climate” among the Constitutional “rights”, appearing to address one of 3 fatal flaws I flagged initially on March 2 and that later was requested by Maya van Rossum in testimony on March 7.

But the amendments did NOT include 2 other fatal flaws: lack of rights for environmental justice and public health (a “healthy environment” means what it says: it does not say healthy for humans. This lack of precision is replicated throughout this flawed measure.)

And there was no specific scientific or numeric standard included in the SCR that would define what a “safe climate” is. I suggested 350 parts per million CO2, the level scientists suggest is the highest concentration that can support a stable (“safe”) climate.

But, before climate activists start applauding, consider the fact that the brackets taketh away. SCR 43 now reads:

The State shall not infringe upon these rights 1[, by action or inaction]1

State “action” means things like DEP permits.

State “inaction” means things like the failure of DEP regulations and permits to address or reduce greenhouse gas emissions, stop destruction of forests and farms by development, and allow petro-chemical companies to poison the air and water of the State.

And the law would not apply to violations of these rights by the private sector – only by the State (and are municipal, County, and regional governments and Authorities considered “the State”?)

All of which confirm my assessment: Washington Post:

The measure would decree that “the state’s natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations. The state shall serve as trustee of these resources, and shall conserve and maintain them for the benefit of all people.”

But Bill Wolfe, a former official with the state Department of Environmental Protection and a frequent critic of the agency, said the state already is the trustee of those resources under the Public Trust Doctrine, a legal concept dating back to the Roman Empire that the state has adopted in other areas, including access to beaches and waterways.

“The bill is deeply flawed, and I believe it is more performative than a serious effort,” he said.

[Update – see this for background info on the NJ DEP “public trust doctrine”.

The NJ DEP also has explicit legal authority to enforce the Public Trust Doctrine in the toxic site remediation program, the Natural Resource Restoration program, and under the delegated federal Clean Water Act. There s implicit authority in DEP’s enabling legislation and several other State environmental laws. NJ DEP and environmental groups do very, very little work to actually enforce this existing authority.~~~ end update]

So, why would Chairman Smith delete “State action and inaction” from the bill?

It was clearly a sop to the business community, who claimed that: (read the whole thing)

NJBIA is opposing a constitutional amendment that attempts to establish that every person has a legal right to a clean environment because it will lead to a surge in costly litigiation (sic) and create uncertainty that would jeopardize financing for public infrastructure and private development projects.

Let me translate that: the “costly litigation” NJ BIA refers to is legal challenges to DEP permits (“State action”) that violate environmental rights. These challenges could stop or increase the costs of proposed development or the operations of existing polluters.

The “uncertainty” NJ BIA refers to involves whether citizens might challenge DEP permits or regulations for failure to protect those environmental rights and thereby block their proposed developments or impose compliance costs on their pollution (“State inaction”)

(and Ray Cantor at NJ BIA should get a spell check or editor – bad form to make those kinds of typos, especially in such a significant statement).

So, by deleting “state action and inaction”, that uncertainty is greatly reduced, if not eliminated.

Basically, the DEP status quo is protected – all the laws, regulations, and DEP permit practices are presumed adequate and the burden on the challenger is increased.

Legal challenges to DEP permits or regulations to enforce those rights can not rely on the specific legal standard that the “inaction” of the State is what the lawyers call “actionable”.

Courts will not break a sweat in (“strict scrutiny”) defining what it means for the “State” to “infringe upon” these rights. They may now even conclude that deletion of “State action and inaction” was legislative intent to take “inaction” completely off the table. That means decades of individual lawsuits on a case by case site specific basis to develop the case law and precedent.

(contrast that with, let’s say, State DEP and BPU regulations that would mandate reductions in GHG emissions to meet the aspirational goals of the Global Warming Response Act and the toothless rhetoric of Gov. Murphy’s numerous self serving Executive Orders on climate and energy. I could offer dozens of more examples of regulatory standards that would put teeth in environmental laws and regulations and hold DEP accountable to democratic demands, while empowering activists, not lawyers and judges.).

(and in contrast to the closed judicial chambers, all those DEP regulatory adoption and permit issuance procedures include public notice, public comment, and public hearings, which activists can use as organizing and political platforms to turn out mass crowds to press for real substantive and structural changes, not aspirational vague platitudes like a “safe climate” as ruled by a judge (with a “compelling state interest” escape hatch)

When I think of all the hard work of young and idealistic and enthusiastic climate activists in particular – and the round of applause given to Smith upon release of the SCR yesterday – it turns my stomach and makes my blood boil.

These people will invest their hearts and souls in working to enact this Resolution.

They’ve been told that this is what democracy looks like.

They’ve been told that this approach will be “a game changer” on climate.

Yet, even if they succeed, their democratic work work will do very little and depend on raising money to hire expensive lawyers and experts to file lawsuits based on esoteric legal doctrines argued in closed courtroom settings and decided by a (likely) conservative old white man in black robes.

This is a gross perversion of democracy. And deeply cynical manipulation by Trenton policymakers and the “leaders” of this initiative.

Worse, it will divert huge activist resources and time from far more effective strategies that actually build democratic political power, hold  corporate polluters and government accountable, and force the kind of changes required to preserve what’s left of our natural environment and damped the climate catastrophe.

In closing, I thought we had hit moral rock bottom and cynicism when Joe Biden described manufacture and provision of 2,000 pound bombs to Israel to murder women and children in a genocide as “investments in a US jobs program” – in swing states no less!

But, manipulation of idealistic young people about the viability of their future might be worse.

[End Note: I intentionally left Chairman Smith’s remarks out, because I was disgusted in how he laid the foundation to blame the activists when this fails (e.g. they failed to convince the legislature). But, because NJ Spotlight reported them (in a boxed quote, no less), I’ll note that because Smith knows that the SCR 43 is DOA, it confirms my criticism that he’s engaging in a cynical performative stunt:

‘You are going to have a big job to convince the Legislature that this is the right thing to do,’ said Sen. Bob Smith (D-Middlesex), referring to the proposed constitutional amendment.

Christie Abolished Governor’s Task Force on Public Health Emergency Planning

Christie’s first term Inaugural (Jan. 19, 2010 – Bill Wolfe)

In November 2022, current NJ Governor Murphy issued a press release that announced a review of the State’s disastrous COVID response, which caused and contributed to thousands of excess deaths:

TRENTON – Governor Murphy today announced the beginning of an independent review of the State’s handling of the COVID-19 pandemic, including the state of readiness in early 2020, and how the State responded to the many challenges that emerged over the last three years. The review, which will contain recommendations to enhance the State’s preparedness for a future public health crisis, will be conducted by a team at Montgomery McCracken Walker & Rhoads, in conjunction with the management consulting firm Boston Consulting Group. New Jersey is the first state in the nation to commission an independent and comprehensive review on the COVID-19 pandemic.

The review was to be released by the end of 2023. Media reports say that the private consultants will be paid $400 an hour.

So here’s some absolutely free grist for that investigation.

First, at the very beginning of the pandemic, I wrote to expose the State’s negligence, see:

• NJ State Officials Knew For Years That A Pandemic Could Cause Healthcare System To Collapse And 50,000 Residents Could Die

Second, just now in researching a completely different issue that had nothing to do with COVID, I came across this little bit of history that is almost certain to be swept under the rug.

In the wake of the September 11, 2001 terrorist attack and subsequent scares regarding the State’s public health emergency planning, preparation for an anthrax bio-terrorism attack, and overall ability to respond to public health emergencies, on January 14, 2002, Acting Governor Codey issued Executive Order #140.

EO 140 created a Governor’s Task Force on Public Health Emergency Planning (Task Force).

The Task Force was comprised of experts, including epidemiologists, infectious diseases, education and communication systems needed to respond to an emergency, and State Department of Health and Emergency Management officials.

The Task Force was directed to focus on NJ’s public health system, specifically with respect to responding to and “preventing epidemics”.

Here is the Task Force’s charge – note how each task is directly related to the current COVID failures:

3. The Task Force is charged with:

• examining the infrastructure of New Jersey’s public health system (at all levels) to determine whether New Jersey is ready to serve the public health needs of its citizens in the event of a future terrorist attack or other public health emergency;
• recommending a single definition of “public health” to allow the more than 600 boards of health and local health officials to coordinate their efforts and develop one coordinated public health system;
• identifying the statutory and regulatory steps that should be taken to address any issues and/or shortfalls identified;
• examining the relationships between local health officials and State health officials to determine whether there is adequate coordination and communication, whether the creation of county health departments is necessary and whether having approximately 525 boards of health and 115 local health agencies properly utilizes State resources;
• determining whether the following public health system principles are being met:
  
  1. preventing epidemics;
  2. protecting the environment, workplace, housing, food and water;
  3. promoting good health behaviors;
  4. monitoring the health status of the population;
  5. mobilizing community action;
  6. responding rapidly and effectively to disaster;
  7. promoting the quality, accessibility and accountability of medical care;
  8. identifying and reaching out to link high-risk and inaccessible people to needed services;
  9. conducting research to develop new insights and innovative solutions; and
  10. leading the development of sound health policy and planning.
      
• determining whether additional funding of our public health system is necessary;
• recommending changes to New Jersey’s public health system.
• leading the development of sound health policy and planning.
• 4. The Task Force shall issue a report in 6 months presenting its findings and recommendations to the Governor and both houses of the Legislature.

So, who dropped the ball here?

The Task Force was abolished by Gov. Christie’s Executive Order #40 (see paragraph #36).

How can a Governor abolish a Task Force without assuring that its work is complete and recommendations implemented?

I do not know if the Codey Task Force ever issued its Report to the Legislature and Governor.

But if they did, then subsequent Governors Corzine and Christie are responsible for failing to implement the Task Force Recommendations.

If the Task Force did not issue a Report, then Gov. Christie was reckless in not finishing the work and improving NJ’s health system, particularly with respect to infectious diseases.

[End note: because I got strong pushback from NJ people claiming that Gov. Murphy deserves the blame, let me clarify: nothing in this post was meant to absolve Murphy of any responsibility and nothing does. I’ve criticized his administration for failures, including the nursing home debacle and the liability relief lie he signed. But Murphy should have inherited a stronger public health system, had Christie and Corzine adopted reforms made obvious in 2001.]

Truck Fee Is A Bad Joke

Meanwhile, DEP Rubber Stamps Approvals And Voluntary State Plan Has Zero Impact

After 6 years of turning a blind eye to the explosion of growth of warehouses across the State, NJ Gov. Murphy is now seeking to monetize that massive policy failure.

NJ Spotlight reports:

Gov. Phil Murphy proposed a $1 tax for every truck movement and projected that the revenue would amount to $10 million for the state’s general fund. Part of Murphy’s fiscal year 2025 spending plan presented last week, the money would go toward alleviating the impact on traffic and roads.

Gov. Murphy’s Department of Environmental Protection (DEP) has sat on the sidelines and rubber stamped permits and approvals for millions of square feet of new warehouse development. This head in the sand approach has allowed warehouses to pave over unknown thousands of acres of NJ’s last remaining farmlands and forests, while dramatically increasing truck traffic, air pollution, greenhouse gas emissions, and exacerbating NJ’s massive flooding and water quality problems.

Heck of a job DEP Commissioner LaTourette.

Murphy’s State Planning Commission, and regional planning agencies in the Highlands and Pinelands, were ordered to stand down and do nothing to adopt enforceable plans and policies to slow warehouse growth and protect natural resources.

[Correction & clarification: The Highlands Council ED Ben Spinelli wrote to correct my error. Ben wrote (emphasis mine):

I read your post from this morning regarding the warehouse development issues in the state.  There was one inaccuracy.We are in fact moving forward with the adoption of Highlands-specific warehouse siting and design guidance as an update to the RMP. The public comment period runs through the end of the month. A link to the document is below. Any comments you might have on these standards would be welcomed.

Ben

https://www.nj.gov/njhighlands/master/amendments/warehouse_lucz/warehousing_policy.pdf

But I wrote that the Highlands and Pinelands were not adopting “enforceable plans and policies”.  The Guidance Ben refers to is not enforceable. Clarified but not corrected. ~~~ end update]

Now, after all that damage is done – and thousands or even millions of square feet of additional warehouse development in the pipeline – Gov. Murphy wants to cash out on that negligent land use and environmental policy.

The Gov. would impose what amounts to a development impact fee to fund the damage to local roads caused by increased heavy truck traffic. The huge warehouses themselves would not be effected.

There are at least 3 major problems with this approach:

First, towns already have the authority under NJ Municipal Land Use Law to collect impact fees to offset and finance the damage to local infrastructure like roads and pay for additional new municipal services required to manage new development (police, fire, utilities, etc).

A State impact fee diverts from these impact fee tools and lets town off the hook for their failure to impose such impact fees. A State fee also would discourage towns from imposing them and instead rely on the State.

Second, the magnitude of fee is pathetic and the $10 million it would generate is a drop in the bucket compared to the costs these trucks and warehouses impose on the environment, infrastructure, and local governments. And they are a pittance when compared to the billions of dollars in corporate and real estate profits generated by this warehouse boom.

Third, the Gov.’s plan would allocate the revenues to the State general Fund, where it would be diverted to other purposes and not dedicated to restoring the local damage caused by the warehouses and trucks. The State General Fund and the Legislative appropriations process would not be an effective way to offset local government costs.

And the causes of the warehouse sprawl problem, e.g. weak DEP regulations, lax DEP oversight, a voluntary State land use plan, and inaction by regional land use planning agencies with regulatory authority (i.e. Pinelands and Highlands) all go uncorrected.

A bad idea, that would make a bad situation worse, designed to cover up and benefit from policy failure, while failing to fix the underlying policy flaws.

It doesn’t get any worse than that.

And of course you wouldn’t’ know any of this by reading the NJ Spotlight story.

Even worse, Spotlight absolutely buried and obfuscated the DEP’s regulatory powers and failures – look at this:

[Rowan Professor] Hasse said the plan would have created 1.3 million square feet of impervious surface, increasing stormwater runoff. The site also borders so-called Category 1 waterways, designated by the state as of exceptional ecological value, and would be built on land that is home to several endangered bird species.

Gee wiz, I wonder what DEP is doing about all that?

Massive Loophole Explicitly Allows New Fossil Power Plants To Be Built

Existing Fossil Power And Fossil Imports Can Continue Operating Forever

The Bill Will Not Reduce ANY Greenhouse Gas Emissions

“You will never hear the Chemistry Council saying anything bad about the DEP. ” ~~~ Dennis Hart, Executive Director of NJ Chemistry Council (3/4/24 testimony to the NJ Senate Environment Committee on SCR 11)

Back in January when Senate Concurrent Resolution SCR 11 was posted for Committee consideration, I wrote Chairman Smith the sponsor to request amendments to make the bill actually reduce greenhouse gas emissions, prevent construction of new fossil plants, and phase out existing fossil (see the email to Smith below).

I knew Smith was not serious when neither he nor environmental groups expressed support or even replied to my suggested amendments.

There was no media coverage either.

But now, after an even lame SCR 11 was gutted, its safe for the media to cover the issue.

(the amendments were not even drafted when they were approved and still are not posted on the OLS website. Smith is over heard on live mike saying he just wants to get the bill out of committee, even though the amendments technically did not exist.)

I got a belly laugh but was not surprised to read today’s NJ Spotlight report that Smith had gutted his own lame bill: (NJ Spotlight)

But [fossil industry] critics argued the ban could threaten the reliability of the power grid, especially at a time when the state is moving to intermittent sources like offshore wind and solar energy. To an extent, Smith agreed, noting the bill was amended to allow new peaking gas-power plants, which often come online quickly during times when power demand strains the grid’s capacity to provide electricity. 

 A loophole that large swallows the entire SCR 11. Why even pass the bill if a loophole defeats the core sole purpose of the legislation?

I sense that NJ Spotlight reporter Tom Johnson had a smile on his face and enjoyed the humiliation served up to new Sierra Club Director Anjuli Busot-Ramos, who – just like DEP Commissioner LaTourette and NJ Spotlight editors – fails to understand the difference between misinformation and disinformation: (NJ Spotlight)

Both Ramos and Pringle also objected to putting the issue before voters, predicting a multimillion-dollar campaign by the fossil fuel industry to sway voters against the ban. “Our fear is we won’t be able to compete,’’ she said. “We don’t have millions of dollars to combat the misinformation.’’ 

Note how Pringle and Ramos rightly criticize the fossil industry but give Chairman Smith a pass for gutting his own bill in response to their criticism.

Remarkably, despite the fact that an already lame SCR 11 was competently gutted and will do nothing at all to reduce greenhouse gas emissions, un-named environmental groups still supported it!: (NJ Spotlight)

Several other environmental groups backed the resolution, however.

Now I have to listen to the testimony and be sure to name these idiots.

[Update: As I suspected, the corrupt cheerleaders at NJ League of Conservation Voters SUPPORTED this sham (at time: 1:10:00)

Dave Pringle’s opposition to the bill was based on economics, not climate science. He expressed a reliance on market forces to stop the construction of new power plants. Total Neoliberal BS – let the market solve the problem. He also opposed the bill because he was afraid he would lose the public debate and the voters would defeat the ballot question. He might be right that the fossil industry would spend millions on a disinformation campaign, but he revealed a disdain for the intelligence of the voters and no trust in democracy. And no confidence in his ability to win a public debate. What a tool.

Ms. Ramos’s testimony was even worse. She began with the outrageous claim that as a former DEP employee she could tell the Chairman that DEP has “great regulations on air toxics”. She then supported “clean hydrogen”. She misled about the impact of the new EJ law on permit renewals and modifications by implying that the EJ law could reduce greenhouse gas emissions and air toxics – she failed to note that the law did nothing to change current DEP air toxics standards, methods, technical manuals, cumulative risk standards, risks management, or air permitting regulations and that the law prohibits DEP from denying renewals and modifications of current permits.

Doug O’Malley was a no show and no other climate or environmental groups even testified.  ~~~ end update]

In the meantime, check out my request for amendment below.

Study Documents Extensive Backlog And Long Delays In Connecting Renewable Energy Sources To The Grid

Climate Emergency, High Costs, And Dysfunctional PJM Control Of Grid Demand PJM-EXIT

NJ Spotlight today reports on an important energy industry study of the PJM regional grid – the findings include outrageous backlogs in connecting renewable energy sources to the PJM grid, including years of delay, read the whole thing:

• Interconnection issues at PJM threaten reliability and clean-energy goals, warns new study

Spotlight didn’t provide a link, and a Google couldn’t find it, so it may not be posted yet but I did find this summary: 

Currently, the interconnection process in many regions is broken and complex, leading to lengthy wait times which causes renewable energy developers to withdraw projects. The country is split into many interconnection regions. The electric grid across the mid-Atlantic and rust belt regions is run by an independent entity called PJM. In the PJM region alone, there are currently 2,700 projects stuck in the interconnection process. 95% of these projects are clean wind, solar, and storage projects that are essential to meet states’ clean energy laws.  

And here is a link to a similar 2022 Report.

This is intolerable, given the climate emergency.

It is impossible for NJ to meet its climate, energy, environmental justice, clean air and economic goals under PJM grid control

NJ must control its own destiny – the case for a PJM-EXIT is compelling.

I fired off this letter to Legislators and climate and environmental leaders – I urge readers to make similar demands:

Dear Chairman Smith:

Today’s reporting by NJ Spotlight on a study of PJM performance, particularly with respect to grid connection for renewable energy sources, by Advanced Energy United is deeply troubling, see:

https://www.njspotlightnews.org/2024/02/pjm-interconnection-power-grid-operator-scores-worst-struggling-to-connect-new-electricity-projects/

The AEU Report provides a strong and credible technical basis for NJ legislators to revive the proposal to leave PJM and establish an independent NJ grid.

An independent NJ grid would enable NJ to control and realize its energy policy, particularly with respect to carbon, climate, air quality, environmental justice, and aggressive renewable energy goals and to do so much more efficiently, more expeditiously, and at much lower costs than under PJM control.

Such NJ climate and energy goals and policies can not be realized under the current PJM controlled grid.

PJM is a private corporate entity with its own agenda, its own objectives and its own expertise. PJM decision-making is not transparent and it does not allow for effective public participation. PJM is not accountable to NJ residents or policymakers (i.e. the NJ legislature, NJ BPU, or NJ DEP). The PJM’s objectives often conflict with and undermine NJ’s climate and energy policies.

At the same time, it would reduce costs to NJ consumers, particularly given numerous excessive PJM related charges such as “capacity payments” and cost allocations of regional transmission infrastructure.

NJ can no longer tolerate the delays and high costs of the PJM grid, particularly given the climate emergency.

I strongly urge you to hold legislative hearings on crafting legislation to terminate NJ’s participation in PJM and establish its own public independent energy agency.

Sincerely,

Bill Wolfe