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Legislators Now Understand That Sandy Recovery Was Bungled

The Same Crew Is Bungling Regulations

Legislature Has Power To Veto Christie Rules as “Inconsistent with Legislative Intent”

[Update #4: 7/9/14 – See Asbury Park Press story:  Critics make last pitch against NJ coastal rules

Watch NBC TV 40 coverage of the final public hearing on the rule – end update

Update #3 – 7/6/14 – Here’s an amazing coincidence – this superb Washington post story on North Carolina coastal/sea level rise – climate change debate ran June 24, 2014, the same day as this post. Just reading it now as a link to this NY Times piece on  science “When beliefs and facts collide” – end update.]

Update #2: 6/29/14 – Star Ledger editorial gets it and nails Gov. Christie, but gies legislature a pass, see:

• Christie administration still wearing blinders on sea level rise

Update #1: 6/26/14 – Press coverage of first public hearings on proposed rule is good, see this from AP. Glad to see Tim D. speak out.  -end update]

Back on June 4, 2012 (prior to Sandy), national comic Steve Colbert absolutely nailed it in skewering North Carolina Republicans, who advocated State legislation that would outlaw consideration of sea level rise due to global warming  – watch Colbert’s June 4, 2012 “Word” – Sink or Swim

If science gives you a result you don’t like, pass a law, problem solved.

The NC law targeted the Coastal Commission, who, among other things, regulates land use and development in the coastal zone.

While NJ doesn’t have a Coastal Commission – a bill to create one died last session and Coastal advocates strangely are not supporting this session’s bill – NJ does have DEP Coastal Zone Management regulations and a law use law known as “CAFRA” (Coastal Area Facilities Review Act).

While the CAFRA law is riddled with loopholes – including the poison provision known as the “right to rebuild” storm damaged properties, which virtually assures perpetual repetition of coastal chaos like Sandy –  IF the DEP Commissioner had the will to do so, there are other NJ State environmental laws that could be cobbled together under a CAFRA umbrella to support stronger regulations that would reduce the risks of climate change along the coast and better protect natural resources.

The corollary to Colbert’s “just pass a law” to block consideration of climate change is “just ignore the science and the problem” – the result is exactly the same.

Which takes us to the situation in Chris Christie’s NJ – which is actually worse than the North Carolina case, which received national ridicule.

While North Carolina’s Republicans affirmatively outlaw consideration of climate change, Gov. Christie’s administration blatantly ignores it and fails to include it in coastal management programs, policies, and regulations.

But what actually makes the NJ scenario worse than North Carolina is that the people of NJ are being strongly urged by Gov. Christie to rebuild in coastal hazard zones and the State government is using all its resources, policies, and regulations to incentivize that “rebuild madness”.

All of which takes us to the topic of this post, just the most recent example of Gov. Christie’s irresponsible climate denial I have called “rebuild madness”.

The Christie DEP just proposed new Coastal Zone/CAFRA regulations. The first of 3 public hearings on them begin tomorrow.

Jeff Tittel of Sierra Club wrote a killer Op-Ed on the rules in today’s Press of Atlantic City – read the whole thing:

The Department of Environmental Protection has proposed new rules to regulate development on our coast for the first time since Hurricane Sandy. Instead of looking to strengthen coastal protections and encourage more regional planning, these rules propose more loopholes and further weaken coastal protections. They do not address climate change or sea-level rise, coastal resiliency or restoring natural systems.

These rules would eliminate protections for our coast, allowing more sprawl and overdevelopment and putting more people and property in harm’s way.

In addition to the devastation from Hurricane Sandy, New Jersey has experienced storm surges and sea-level rise at an alarming rate. Instead of moving New Jersey forward to mitigate against these climate impacts, we are instead opening our coast up for more development in these hazardous areas.

What Tittel did not mention is that the Legislature has the Constitutional power to veto this reckless Christie rule proposal as “inconsistent with legislative intent”.

It is critically important that they do so, because the DEP rules would be in effect for at least 7 years – over that period of time, an enormous amount of new development could be built in harm’s way, not only wasting billions of taxpayer dollars, but putting thousands of people’s very lives at risk.

The legislative veto- unlike yesterday’s failed effort on the “Sandy Bill of Rights” – would not require super majorities needed to over-ride the Gov.’s veto.

A mere majority vote in favor of a Concurrent Resolution in both Houses would do. The Democrats have majorities in both Houses and could readily veto the Gov. coastal rebuild a scheme.

Ironically, it took 18 months for Legislative Democrats to realize that the Sandy recovery was badly bungled. Well, that same crew is in charge of regulations, and we can expect similar disastrous results we saw in oversight of Sandy recovery.

So, in closing, let me briefly outline how to make this legislative veto “inconsistent with legislative intent” argument. Follow.

The lawyers at DEP have a bag of strategies and tools to justify and defend DEP rules from legal and political attack. One of the most important tactics is found on the cover page of all rule proposals, known as the “Authority” – as in statutory authority – to propose the rule.

If DEP lawyers anticipate an attack on the DEP’s legislative authority to propose a rule, then they trot out a very long list of statutes that allegedly authorize a rule, including the very broad mandate under DEP’s enabling or “organic” authority, the statute that created DEP, NJSA 13:1D.

If DEP proposes a rule that creates new requirements that stray beyond the scope of a specific statute and could be vulnerable to challenge, then DEP lawyers are sure to include related statutes.

A good example of this was DEP’s new “stream encroachment” regulations authorized under the Flood Hazard Act. That law, and the historic DEP stream encroachment regulations focused on flood risks. But DEP’s new rules expanded that focus to include water quality. Because of that expanded scope, DEP lawyers were sure to include a suite of water pollution/water quality laws.

And if a DEP rule creates an entirely new controversial program or policy, DEP lawyers are sure to cite virtually every environmental law on the books. The most recent example of this was the Christie “Waiver Rules”, where dozens of laws were cited as the “authority”.

The lawyers at OLS, who advise the Legislature, are no less sophisticated in making arguments to take down the DEP rule as “inconsistent with legislative intent”.

The DEP rule in question cites 3 laws as “authority”: N.J.S.A. 12:3-1 et seq., 12:5-3, 13:1D-1 et seq., 13:9A-1 et seq., and 13:19-1 et seq.

But DEP forgot all about NJ’s most important State law to guide coastal management: the Global Warming Response Act (GWRA).

This failure is simply incomprehensible and intolerable in a post Sandy coastal management regulation.

Here are some of the relevant findings of the GWRA that relate to coastal risks of climate change:

The Legislature finds and declares the internationally the issue of global warming has caused alarm, awareness, and action concerning climate changes occurring around the globe attributed to the high level of certain gases called “greenhouse gases” – gases that increase temperatures in the atmosphere and the risk of catastrophic changes to the Earth’s ecosystems and environment; that, while this global warming may be a theory to some, the effects of increasing levels of greenhouse gases in the atmosphere are accepted by many respected scientists and members of the international community as seriously detrimental to the ecosystems and environment of the world; that, ultimately, if steps are not taken to reverse these trends, the effects on human, animal and plant life on Earth may be catastrophic; 

The GWRA also included a mandate that DEP submit a Report to the Legislature outlining a plan on how to implement and meet the goals of the GWRA.

In December 2009, the DEP submitted that Report to the Legislature, see: Meeting New Jersey’s 2020 Greenhouse Gas Limit: New Jersey’s Global Warming Response Act Recommendations Report

Here is one of the most relevant DEP recommendations from the GWRA Report that has been totally ignored and/or violated by the Christie DEP for 5 years and by the current CAFR rule proposal:

Therefore, because the DEP proposed new coastal management rules:

• ignore climate change science and the associated risks of more frequent and intense coastal storms and sea level rise;
• contradict the policies and legislative findings expressed in the GWRA, and
• ignores DEP’s own recommendations on adaptation;

the DEP rule is inconsistent with legislative intent.

The Legislature must step up and veto this rule proposal.

Reading the various news stories on the open space funding debate got me to thinking about how contrasts in the views of the various players are quite revealing.

The dominant view that seems to be carrying the day – and it’s a worldview that is not just limited to the open space funding issue – is that of the corporate business community.

Some call that a Neoliberal, anti-tax, anti-government, reactionary, austerity worldview – promoting a hyper-individualist competitive “race to the bottom”.

But don’t accept my labels, let’s listen to the words of the NJ Chamber of Commerce, who oppose the “slimmed down scheme”, the most recent open space funding compromise: (NJ Spotlight)

Nevertheless, the new slimmed-down scheme still drew sharp criticism from business groups and others.

“We’re in a fiscal crisis right now, but probably it is only going to get worse,’’ said Michael Egenton, a senior vice president of the New Jersey State Chamber of Commerce, said at a public hearing Monday that allowed the measure to move forward.

The Chamber’s comment prompted this sharp rebuke in the Spotlight comments section, by yours truly:

Mr. Egenton’s so called “fiscal crisis” has not stopped the Gov. from giving corporations over $2 billion in tax breaks.

Business leaders not only completely lack any vision about the factors that attract a quality work force and business climate, but their greed and self interest is unbounded.

Education, vibrant cities, arts, and accessible high quality natural resources are the factors people and families consider in where they choose to work and live.

People and small businesses look for good paying jobs with benefits and security and opportunity and their middle class incomes drive economic demand.

In contrast, all the business community advocates is an accelerating race to the bottom: slashing environmental regulations, defunding open space and infrastructure, corporate welfare, tax cuts for the wealthy, privatized two-tiered segregated education systems and urban centers, and poverty wages.

Notice how that comment transcends the fiscal austerity argument, and situates the open space funding debate in a far broader ideological, political, and policy context.

From this broader critical perspective, the business community’s fiscal argument is tied to ideological beliefs, corporate greed and power, corporate policy agenda, and hypocrisy.

From this critical perspective, other policy issues and concerns are brought into the debate: education; urban revitalization; housing;  segregation; environmental justice; infrastructure; labor; arts; politics; and the need for a just and equitable distribution of wealth (i.e.to stimulate what economists refer to as “effective demand”, a Keynesian concept that supports a democratic bottom up demand driven approach to economics).

Politically, this kind of critique facilitates recognition of common interests, the need for collective action, and the imperative to form coalitions with other groups with shared interests that are harmed by the same corporate Neoliberal austerity worldview.

But the elitist proponents of open space make far narrower and less adversarial and less political arguments.

Compare my rhetoric and analysis above with the softer “bipartisan” “mainstream” and narrower voice of the “Keep It Green” folks (but I do hear a faint echo in Dr. Hughes’ comment):

“Right now, we are on track to become the first state in the union to run out of open space. I love New Jersey being first in a lot of things, but that’s not where we want to be.” That was former Gov. Christine Todd Whitman speaking at a New Jersey Conservation Foundation event a few years ago.

Former Gov. James Florio agreed with Whitman, adding that it is incorrect to believe that the state must choose between a healthy economy and a healthy environment. “We’re not going to have one without the other,” he stated.

“Knowledge-based, post-industrial businesses tend to locate in high-quality environments,” noted Dr. James Hughes, dean of Rutgers’ Bloustein School of Planning and Public Policy. “To the degree that investments in open space and farmland preservation produces a higher quality environment, it’s going to make New Jersey that much more attractive for these industries of the future.”

Maybe – just maybe – the Keep It Green coalition is not able to move the Assembly due to the narrowness of their vision – and the appearance of a selfish and elite perspective.

I would have thought they would have learned something politically – if not policy and programmatically – from the  recent failure of the sales tax diversion.

Apparently not.

No More Rubber Stamp Budgets, Press Conferences, Sound Bites, and Symbolic Stunts

Legislature Must Use Powers of the Purse, Oversight, and Legislation To Force Gov.’s Hand

Time For Vision, Public Mobilization, and Heavy Lifts

Last week, reading the northeast regional Chapter of the third US National Climate Assessment, I came across this:

Massachusetts became the first state to officially incorporate climate change impacts into its environmental review procedures by adopting legislation that directs agencies to “consider reasonably foreseeable climate change impacts, including additional greenhouse gas emissions, and effects, such as predicted sea level rise. 166

Here’s what the Massachusetts law actually says:

“In considering and issuing permits, licenses and other administrative approvals and decisions, the respective agency, department, board, commission or authority shall also consider reasonably foreseeable climate change impacts, including additional greenhouse gas emissions, and effects, such as predicted sea level rise.”

NJ has nothing like this law on the books – and activists and legislators aren’t even trying to get it.

Instead, we have recycled appeals to restore RGGI or support the Obama EPA timid measures.

But we can’t rely on narrow, single sector, single purpose, incremental, low cost, “politically feasible” and largely “symbolic” reforms –  stuff like RGGI – to get us to the required deep 80% greenhouse emissions reduction goals of the Global Warming Response Act.

Vision and a bold program are required, including heavy lifts like entirely phasing out fossil fuel based energy production, and massively ramping up energy efficiency and renewables and electric cars and public transit and bicycles and local food and reforestation and a strategic retreat from the shore. And coming up with the money to pay for it.

Climate change emissions mitigation and adaptation planning must be incorporated in everything we do- as Al Gore once said, a “central organizing principle” –  including a revenue source based on the social costs of carbon (energy tax).

And most everything we do needs some kind of local or state government approval, so government leadership and public policy must once again be part of the heavy lifting too – Van Jones and the Green New Deal and all that jive. Old School Big Progressive Coalition Movement politics.

So, as a first step, just think if we enacted law , based on Massachusetts law, amending all NJ land use, transportation, housing, energy, agriculture,  budget, tax, finance, infrastructure, planning, redevelopment, and environmental laws to mandate that new AND existing developments that are subject to state and local permits (AND permit renewals) specifically address climate?

As Mr. Rumseld once said: Go large, sweep it all up – one big omnibus bill amending everything.

Better yet, mount a Constitutional amendment campaign and put that question to the people on the ballot.

A ballot Question merely requires simple majorities of both houses of the Legislature, not the Governor’s signature, so Democrats have no excuses.

That’d be something worth fighting for, instead of all this tinkering, stunts, and spin.

That would be something the big Foundations could get behind instead of small bore items, voluntary feel good measures,  and carnivals.

In addition, confirming criticism I’ve made numerous times, according to the National Climate Assessment, NJ is the only northeastern state that lacks a climate change adaptation plan: 

Of the 12 states in the Northeast, 11 have developed adaptation plans for several sectors and 10 have released, or plan to release, statewide adaptation plans. 139

Imagine that – NJ, a highly vulnerable coastal state, almost 2 YEARS after Sandy, still lacks an adaptation plan and has no plans to develop one.

I raised these same issues with the Pinelands Commission during last year’s debate on the South Jersey Gas Pipeline and BL England plant re-powering, requesting that the Pinelands Commission – like NY State’s Adirondack Park Agency – incorporate energy policy and climate mitigation and adaptation policy in its review procedures under the CMP.

So, to get the Massachusetts law idea on the radar screen, I wrote NJ’s legislative leaders a nice note.

Haven’t heard back – not even an automated email – and I’m not holding my breath.

Like I said – if Trenton were serious…

 When 1990 Baseline Used, EPA Rule Amounts to a Tiny Reduction of Total US Emissions

 

[Important end note]

It will take me awhile to analyze the Obama EPA power sector CO2 emissions rule that was released today, so in the meantime, let me make a few basic and important points on it.

The above chart is from EPA’s most recent US Greenhouse Gas Inventory. The inventory is a commitment to the United Nations Framework Convention on Climate Change (UNFCCC)

An emissions inventory that identifies and quantifies a country’s primary anthropogenic1 sources and sinks of greenhouse gases is essential for addressing climate change. This inventory adheres to both (1) a comprehensive and detailed set of methodologies for estimating sources and sinks of anthropogenic greenhouse gases, and (2) a common and consistent mechanism that enables Parties to the United Nations Framework Convention on Climate Change (UNFCCC) to compare the relative contribution of different emission sources and greenhouse gases to climate change. […]

Parties to the Convention, by ratifying, “shall develop, periodically update, publish and make available…national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies…”3 The United States views this report as an opportunity to fulfill these commitments.

As the “common and consistent mechanisms” and “comparable methodology”, the rest of the world uses 1990 as the base year for comparing and negotiating emissions reduction goals.

Here is a hypothetical example to illustrate how shifting baselines works when emissions are growing (and how sensitive goals are to projected growth or what they call the “Business as usual” (BAU) scenario, which typically has unrealistic and undesirable projected economic growth and increases in energy demand, while using low projected growth in efficiency and conservation and renewables):

Goal  #1: a 10% reduction in emission from a 1990 baseline of 1,000 units  = 900 units of emissions allowed

Goal #2: same 10% reduction in emissions, but from a 2005 baseline of 1,400 units =  1,260 units of emissions allowed.

The difference in measuring the 2 goals, depending on baseline year alone, is over 33%! (900 versus 1,260).

Look at the chart above, and guess which year the Obama EPA chose to make this statement about the emissions reductions from today’s CO2 power plant rule: (from the EPA Regulatory Impact Analysis (RIA))

Fossil infrastructure “an exercise in lunacy that must be stopped”

 [Important Update on Pipeline tactics below]

As a result of the catastrophic climate change crisis we face, I oppose any investment in fossil fuel infrastructure and think that should be the most prominent reason for opposing the Pilgrim Pipeline, but without going into all that, just a quick note to rebut  one of the big lies I just read by the spokesman for Pilgrim Pipeline, specifically this from the Morris Daily Record story:

George Bochis, vice president of development, Pilgrim Pipelines Holdings, said the Pilgrim Pipeline would remove 1,000 barges off the river each year and help alleviate shortages of critical fuels for families and businesses after severe weather events such as Hurricane Sandy, decreasing recovery times for affected areas.

The Linden refinery, which would receive the Pilgrim Pipeline oil, is highly vulnerable to climate change impacts and in fact – as shown by the chart above – was knocked out for over a week by Sandy. The Colonial and Buckeye pipelines were knocked out as well.

While the Christie Administration in NJ lacks a Climate Change Adaptation Plan, thankfully, our NY neighbors are no so irresponsible.

According to the NY City Climate Adaptation Plan (Chapter 7 – Liquid Fuels) – an analysis you can’t get from the Christie Administration, despite the fact that critical infrastructure is located in NJ: