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NJ Environmental Leaders Missing Huge Opportunities

Climate Change Must Be A Central Focus in Fossil Infrastructure Battles

Public Education & Organizing Needed On The Science of “Leave It In The Ground”

(Source: The Guardian)

Right now in New Jersey, thousands of residents – many of whom were previously politically inactive or not affiliated with “environmental” groups or causes  – are turning out to public hearings and demonstrations to protest all forms of fossil infrastructure: pipelines, oil rail shipments, off shore LNG ports, electric transmission lines, and power plants.

The recent announcement by the Obama administration to open up the Atlantic coast to off shore oil and gas drilling has sparked huge public outrage, activating thousands more opponents of fossil infrastructure.

These battles provide enormous opportunities to inform, activate, and organize thousands of people to the common threads that link all these fossil infrastructure projects: climate change.

These battles provide “Occupy” like public platforms – events, protests, and formal public hearings – to gather huge groups of like minded people in a unified collective endeavor – politics and democracy in action – a means to build the climate movement.

These controversies can generate significant media coverage to shape public opinion and hold elected officials accountable.

As Bruce Dixon has written in his series: Organizing 101 in response to Ferguson and the “Black Lives Matter” movement:

It’s not a movement unless it’s organized, and it might never happen unless YOU organize it.

Unfortunately, I hope I’m wrong, but from where I sit, I don’t see this kind of advocacy and organizing happening.

I don’t see a unified climate campaign in NJ.

I don’t see dissemination of the science or policy analysis. I don’t see media message and talking points. I don’t see efforts to connect the various fossil infrastructure battles to a common set of related climate issue. And I don’t see efforts to educate and organize all the thousands of people now actively opposing these various fossil infrastructure projects.

I see little if any public eduction on the climate issue – particularly the most relevant science, which says that we must keep at least 80% of currently known fossil fuels reserves in the ground:

Leave fossil fuels buried to prevent climate change, study urges

The new analysis calls into question the gigantic sums of private and government investment being ploughed into exploration for new fossil fuel reserves, according to UCL’s Professor Paul Ekins, who conducted the research with McGlade. “In 2013, fossil fuel companies spent some $670bn (£443bn) on exploring for new oil and gas resources. One might ask why they are doing this when there is more in the ground than we can afford to burn,” he said….

“One lesson of this work is unmistakably obvious: when you’re in a hole, stop digging,” said Bill McKibben, co-founder of 350.org which is campaigning to get investors to dump their fossil fuel stocks. “These numbers show that unconventional and ‘extreme’ fossil fuel – Canada’s tar sands, for instance – simply have to stay in the ground.”

“Given these numbers, it makes literally no sense for the industry to go hunting for more fossil fuel,” McKibben said. “We’ve binged to the edge of our own destruction. The last thing we need now is to find a few more liquor stores to loot.”

Another strong climate related reason to oppose these fossil infrastructure projects is the impact that the massive capital investments and artificially low fossil fuel prices have on the economics and investment opportunities required for conversion to renewable zero carbon energy, see:

• The effect of natural gas supply on US renewable energy and CO₂ emissions

Climate issue are engaged in few, if any, of the arguments being advanced by opponents  of these various fossil infrastructure projects.

The climate issues are ignored in virtually all of the tons of media storied these controversies have generated.

NJ’s environmental leaders can and must do better – or new leadership and organizations must step up to fill the void.

And they will have to do it without funding from NJ’s elite foundations, who have abandoned politics and advocacy work.

Assembly bill would mandate that DEP issue drinking water standard for toxic chemical

DEP failed to issue standards for 15 toxic chemicals recommended by Drinking Water Quality Institute

Christie DEP Ignores Science and Health Risks

[Update below]

The Assembly Environment Committee heard testimony and released a long overdue and important bill yesterday (A3954 [1R]) that would mandate that the DEP adopt a “Maximum Contaminant Level” (MCL) drinking water standard of 0.03 parts per billion for the chemical 1,2.3 trichloropropane (TCP).

Assemblyman Conaway (D-7) appeared to testify in support of his bill, which grew out of a situation in Moorestown – for the full story on that, see:

• Toxin leads Moorestown to shut two wells

A contaminant not currently regulated by drinking-water standards has been found in Moorestown’s water supply, causing town officials to shut down two of its primary wells.

The chemical, 1,2,3-trichloropropane, is a man-made and persistent substance used for paint removal and other purposes. It has been classified a “likely” carcinogen by the U.S. Environmental Protection Agency.

There is quite a bit of history on the Moorestown contamination, which DEP has known about and failed to discloses, regulate, or warn people about for many years.

In fact, as I testified to the Committee in support of the bill, the Drinking Water Quality Institute (DWQI) recommended that DEP adopt an MCL for TCP way back in a March 2009 Report to DEP:

“1,2,3-trichloropropane is a contaminant of nematocides/fumigants applied to soil, also used for other industrial purposes. It is stable in the environment, and has been detected in public water systems, private wells, and in ground water at contaminated sites in New Jersey. There is no federal MCL for 1,2,3- trichloropropane. In 1999, NJDEP developed a drinking water guidance value of 0.025 ug/L for 1,2,3-trichloropropane, based on the analytical practical quantitation limit (PQL). Given its occurrence in New Jersey drinking water and its status as a potent carcinogen, selection of 1,2,3-trichloropropane for possible development of a health-based MCL was recommended.” (p.5)

That same March 2009 DWQI Report also recommended new or lower MCL’s be adopted for 12 other toxic chemicals that New Jersey residents are exposed to:

V. Conclusions

Based upon the Health Effects, Testing, and Treatment Subcommittee reviews, the Drinking Water Quality Institute recommends the actions summarized in Table 7:

• … Lower the MCL for eight contaminants: benzene, carbon tetrachloride, 1,3- dichlorobenzene, 1,4-dichlorobenzene, 1,1-dichloroethane, 1,2-dichloroethane, 1,1,2- trichloroethane, and vinyl chloride. […]

• Establish MCLs for five contaminants not currently regulated: DCPA and degradates, formaldehyde, n-hexane, methyl ethyl ketone, and 1,2,3-trichloropropane. …

DEP simply recklessly ignored those DWQI recommendations.

DEP also ignored DWQI MCL recommendations for cancer causing radon 222 (February 2009) and a component of jet fuel, toxic perchlorate (October 2005).

As a result, thousands of people across the state – not just in Moorestown – are being exposed to unsafe levels of toxic chemicals known to be found in their drinking water without their knowledge and without any ability to take precautions to avoid that exposure.

This is simply wrong – it is an outrage that must end.

The Conaway Assembly bill (A3954 [1R]) finally provides a huge opportunity to fix this longstanding failure by DEP.

The Christie administration has tried to dismantle the DWQI and keep it from meeting.

The DWQI used to meet quarterly, but has met just once since September 2010, after powerful polluter Dupont opposed its recommendations to regulate another toxic chemical called PFOA.

As I testified, the Conaway bill needs to be amended to require that DEP adopt all prior DWQI recommended MCL’s that have been ignored by DEP.

At the hearing, I sat next to Assemblyman Conaway during my testimony. Chairwoman Spencer deferred to him regarding my recommendations to amend the bill to do this.

Conaway looked me in the eye and said he would consider that, I assume favorably because if he cares about the health of his constituents in Moorestown, he should care about the health of all New Jersey residents.

So, I’ve researched out to the Assemblyman and I urge all of you to contact his office and your legislators to demand that the bill be amended to protect your drinking water.

We need a Senate companion bill so a Senate sponsors is needed too.

[Update: 4/8/15 – No wonder Assemblyman Conaway won’t return my calls or emails. I just read the amended version of his bill. Amendments were adopted but not made clear at the Committee hearing. Instead of strengthening and expanding the bill, they gutted it.

The amendment gutted the bill by: 1) removing the mandate to adopt a 0.03 ppb MCL; 2) eliminating the interim 0.03 ppb legislative MCL that would be effective in the absence of DEP adoption; and 3) failed to reflect the 2009 DWQI Report’s recommendation, essentially covering up the history. Pathetic. Truly pathetic.  ~~~ end update]

The White Whale Breaches Again in Trenton

(Note: this is NOT my photo! – Sorry to not have made that clear)

[Update: 3/22/15 – The Philadelphia Inquirer gets the story exactly right, see: N.J. environment bill’s scope under debate ~~~ end update]

The White Whale breached briefly again today, this time before the Assembly Environment Committee. He was last spotted on March 9 in the Senate.

The debate is turning bitter and once again the Assembly has a very different take on Open Space than the Senate.

Once again, we entered the Hobbesian world of “all against all”, with non-profit conservation groups opposing the Assembly version of the Open Space implementation legislation.

Ahab’s gold doubloon nailed to the mast.

Who created this nasty dynamic?

Regardless, the Governor will determine the outcome through the budget process and or his veto powers.

• Elimination of funding for Stewardship and non-profit groups spurs debate

Chairwoman Spencer pushed back hard against members of the Keep It Green coalition, who wailed like stuck pigs after reading a Committee substitute bill that provided no funds for non-profit groups or “stewardship”.

Tom Gilbert of the Keep It Green Coalition repeated his smear against state DEP parks and natural resource professionals as merely “cutting the grass”. Gilbert wants no “stewardship” funds to go to DEP staff.

Maybe Gilbert can explain how 17 million NJ visitors per year can visit State parks with no staff.

Why do these elite bastards hate State Parks? After stealing State parks’ entire capital budget and their lease and concession revenues via their open space White Whale, they are now going after staff operating funds.

Instead, Gilbert feels that stewardship money should be provided for funding the staff of well endowed elite non-profits to conduct logging on State lands or corporate greenscam projects. Frack that.

ALS’ lobbyist took strong offense to the pejorative perception that they were coming to Trenton with their hand held out.

This from the group that took a $1 million grant from DEP and then curiously went mute in terms of criticizing Governor Christie’s outrageously irresponsible abdication on the Barnegat Bay, or dismantling of DEP climate change and adaptation programs, or abandonment of Delaware Bayshore in Sandy recovery (something band aid horseshoe crab restoration projects won’t put a dent in), or Christie’s insane and reckless coastal rebuild plan in the wake of Sandy.

Money really does talk. And it buys silence too.

At one point, Spencer, noting that she had done a lot of research about the definition of “stewardship”, asked NJ Audubon’s lobbyist Kelly Mooj a point blank question: provide examples of “stewardship” projects and examples of what should not be considered stewardship.

For some reason, Mooj didn’t mention NJ Audubon’s “Corporate Stewardship Council”:

DEP’s support for a new Meadowlands Commission role is the threat to Liberty State Park

Any bill to repair the damage must exclude Meadowlands Commission from any role at LSP

[Update below]

I just read the Jersey Journal story on Speaker Prieto’s Liberty State Park “repair bill” that we criticized yesterday, see

• New bill gives DEP Commissioner final say on Liberty State Park development plans

That’s exactly the misleading headline Prieto wanted, because most people think DEP is out to do the right thing and protect the park from development.

But that assumption is false with respect to the Christie DEP, who is actively promoting parks development.

According to Speaker Prieto, his “repair bill”  (A4196 [1R]) is supposed to fix the alleged inadvertent error in the law that established a new Meadowlands Regional Commission.

Prieto’s Office is quoted thusly:

“Speaker Prieto has consistently said that the DEP should have final say on any plans involving Liberty State Park,” said Philip Swibinski, a spokesman for Prieto. “He has worked with environmental advocacy groups and other stakeholders to ensure that this always remains the case by sponsoring this legislation and he will continue to support it.”

The issue is not and never was whether DEP had “final say”. That is a straw man.

The Bergen Record already exposed this “DEP final say” as a straw man argument.

On January 5, 2015, the Bergen Record reported that multiple sources confirmed that the DEP requested the amendments to involve the Meadowlands Commission, see:

• DEP requested change in Liberty park oversight

On February 12, 2015, NJTV quoted Prieto, who confirmed that DEP requested the amendments:

“The DEP requested the language giving it the ability to use the Meadowlands Regional Commission as a tool to evaluate and implement plans and the commission can only become involved at the request of the DEP commissioner,” said Prieto in a statement today.

Prieto’s explanation of why DEP asked for the amendments makes absolutely no sense – no sense at all and is a straw man.

Just asking very basic questions shows that Prieto’s straw man doesn’t pass the straight face test – questions like this:

1. Why would DEP want the Meadowlands Commission involved at the Park?

DEP already owns, manages, controls, and regulates Liberty State Park. They have no need for the Meadowlands Commission’s help to continue those park services.

Besides, have you ever seen a bureaucracy that wanted to share and dilute its power, control and legal authority?

2. Why would DEP want or need the Meadowlands Commission to “evaluate and implement plans” at the Park?

DEP already has professional parks planners and mangers on staff, and an ability to retain specialized contract consultants for planning, design, architectural, engineering, etc work they can not do.

DEP has no need for Meadowlands Commission involvement in “evaluating and implementing plans” at the park – unless the work “implement” is a mask for FINANCING DEVELOPMENT OF THE PARK.

3. Why would DEP request changes in law to involve the Meadowlands Commission at Liberty State Park?

4. At a time when its very difficult for both Chairs of Environmental Committees to get DEP to testify or to even provide information regarding legislation, why was DEP so eager to get involved and seek amendments to this Meadowlands bill ?

5. Why would DEP request these amendments in a stealth fashion?

6. What does the Meadowlands Commission have to contribute to  park planning or management?

• What we know answers those questions

To ask the question is to answer it.

So, let’s look  at Prieto’s straw man in light of what we know.

• We know that Gov. Christie has an aggressive privatization policy
• We know that Gov. Christie is desperately seeking revenues to close budget deficits he has created via billions of dollars in corporate tax cuts
• We know that Gov. Christie is willing to cut dirty deals that sacrifice the environment to get those revenues
• We know that Gov. Christie will use executive power to divert revenues that are not Constitutionally dedicated
• We know that Gov. Christie’s “Sustainable Parks Strategy” seeks to maximize revenue generating potential of State parks
• We know that DEP has development plans for LSP
• We know that DEP provided a $120,000 grant to NJ Future to study development of the Park
• We know that neither DEP nor NJ Future will release that development study
• We know that DEP is broke and can not issue bonds
• We know that any lease or concession revenue generated at the Park is constitutionally dedicated to the Open Space Fund as a result of the November ballot question, so therefore those revenues could NOT be used for some kind of public private partnership or contract/lease revenue based financing scheme.

The obvious answer is that DEP needs the Meadowlands Commission to finance park development schemes.

That is why any “cleanup” or “repair” legislation must completely remove the Meadowlands Commission from Liberty State Park and restore the status quo.

That is why Prieto’s spin does not pass the straight face test.

And that is why NY/NJ Baykeeper and FLSP compromise with and support of Prieto’s “repair bill” is a really bad move.

[Update: NJ Future, while raising much broader regional planning issues, also opposes the LSP provisions of Prieto’s bill.

NJ Future’s testimony argues that the issue is based on development rights:

4. It transfers to the Sports and Exposition Authority the development rights to Liberty State Park, putting the state’s largest urban park at risk of unbridled development. The Liberty State Park development issue is not resolved adequately in this bill. While the bill makes it clear that DEP still maintains “ownership” of the park, the Sports and Exposition Authority in effect has the development rights, which means that they can make all decisions about what gets developed in the park. Development rights can be separated from ownership. There is no additional authority, review or approval required by the Sports and Exposition Authority to develop anything and everything within the park. These development rights should remain with DEP. We recommend eliminating this section in its entirety. It is our understanding that the DEP and the Sports and Exposition Authority already have the legal means to create inter-agency agreements to do all the things that DEP says it wants done, which is a much more transparent and reasonable approach.

A much more transparent approach! That’s rich, coming from the group that did a secret development study.

Now, if NJ Future would disclose just what it is that “DEP says it wants done” and post the $120,000 study they managed covertly for DEP

Christie Administration Blocked Public Scrutiny of NRD Settlements

Sunshine and Oversight Could have Exposed and Averted Exxon Disaster

Exxon is not the first Christie sweetheart deal with gross oil refinery pollution

In 2012, the Christie Office of the Comptroller rejected our Aug. 9, 2012 request to conduct a review of the performance of the DEP NRD program, see documents:

NEW JERSEY FUMBLING AWAY POLLUTION DAMAGES

Trenton — The State of New Jersey is forfeiting hundreds of millions of dollars in damages from polluters in contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER), which has asked for a review of the program by the state Comptroller.   The state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water has contributed to its inability sustain assessments against polluters. .

Our request was rejected without providing a justification, thus, it is plausible that the Administration just did not want transparency and public scrutiny of the performance of the DEP’s NRD program which might shed light on – or perhaps through sunshine – avoid clear abuses like the Exxon settlement.

Given the upcoming Judiciary hearing on the Exxon deal, that surely is newsworthy.

Additionally, thus far, media has not reported that the Exxon Bayway refinery was not the Christie Administration’s first sweetheart NRD deal with with an oil refinery.

On Jan. 25, 2011, we blasted that NRD refinery settlement too, see: DEP Cuts Deal With Sunoco Refinery

DEP issued a press release late today announcing a Natural Resource Damage (NRD) settlement agreement involving pollution from the Sunoco Coastal Eagle refinery in West Deptford (and 3 affiliated company facilities: EPEC Polymers Inc in Flemington; Nuodex Inc. in Woodbridge; EPEC Polymers Inc. in Burlington City).

There have been hundreds of spills and discharges at the Coastal Eagle refinery over many years, leading to significant soil and groundwater pollution, off site contamination, and adverse water resource, fisheries, wildlife and ecological impacts.

The deal is unusual and raises all sorts of red flags.

First is timing: the NRD Settlement was published over 3 months ago in the NJ Register, on October 18, 2010.

The opportunity for public comment expired in November – there was little public awareness and no public comment on the deal.

So why is DEP issuing a press release now, after the public comment period is closed? Why didn’t DEP issue the release 3 months ago, when it mattered and the public could have used the information and meaningfully participated?

To inject these facts and issues into the Assembly Judiciary Committee’s investigation, we just fired off this letter to Chairman McKeon.

Keep in mind that during yesterday’s Senate floor debate on the Senate Resolution opposing the Exxon deal, Senator O’Toole complained bitterly about the lack of facts on the NRD program. Senator Kean agreed that basic facts were lacking in the Senate’s deliberations.

Had the Christie Administration opened the books and the Comptroller conducted an investigation of the NRD program we recommended, those facts would be on hand right now – and the sunshine could have prevented the abuse we saw in Exxon deal.

Dear Chairman McKeon:

We have long been involved in monitoring the DEP’s Natural Resource Damage (NRD) Program.

We understand that on March 19, 2015, the Assembly Judiciary Committee will take

“testimony from invited guests on the proposed $225 million settlement agreement between the NJ Attorney General’s Office and ExxonMobil for the environmental damage caused by Exxon’s refinery operations in Bayonne and Linden.  A4306 Burzichelli (pending intro & referral) S685 Lesniak/Whelan (pending referral to AJU) and A4307 McKeon (pending intro & referral)”

I provide the following relevant information to assist that inquiry.

By letter of August 9, 2012, we petitioned the Office of the Comptroller to request a review of the DEP’s “Natural Resource Damage” (NRD) program. I wrote:

“I am writing on behalf of the members of Public Employees for Environmental Responsibility (PEER) to request your office’s assistance in addressing an environmental program that appears to be failing in its mission, jeopardizing state water resources andcosting taxpayers hundreds of millions of dollars. …

As we understand that the Office of the State Comptroller is an independent office created to bring greater efficiency and transparency to the operation of all levels of New Jersey’s government., we would request that your office review the performance of the NRD, the extent to which taxpayers are not attaining full NRD recoveries and methods you would recommend to put the program back on track and to make it more transparent and accountable.”

Since its inception in 1994, DEP’s Natural Resource Damage program has recovered more than $51 million and preserved approximately 6,000 acres of open space as wildlife habitat and ground water recharge areas as compensation for pollution resulting from 1,500 contaminated sites and oil spills. However, realization of these important potential economic and environmental benefits for the people of New Jersey of the NRD program is in jeopardy, as outlined in a recent Appellate Court decision.

On August 24, 2007, a state Superior Court dismissed with prejudice an attempt by the New Jersey Department of Environmental Protection (DEP) to recover a natural resource damage claim involving benzene and toluene contamination of private wells in the Hillwood Lakes area of Ewing Township. (N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007)). The Court found that DEP did not follow the rule making process to establish, by regulation, a reliable formula for calculating natural resources damages. In the absence of regulations, the Court also found DEP lacked adequate scientific support to proceed on a case-by-case basis.

This March in the case of New Jersey Department of Environmental Protection, et al. v. Essex Chemical Corporation, the Appellate Division chastised DEP for failure to make a cogent claim for millions of gallons of groundwater contaminated during 8 years of leaking underground storage tanks.

 This line of cases puts in jeopardy the recovery of NRD at more than 120 sites and potentially cripples the ability of DEP to enforce the NRD provisions of New Jersey’s cleanup laws. In a time of fiscal crisis in State budgets, loss of these NRD compensation revenues is not acceptable.

 The absence of a regulatory undergirding for NRD has been known as a serious vulnerability inside DEP for a decade. In addition, the Christie Transition Report on DEP in January 2010 recognized the problem:

 “With respect to the State’s efforts to seek compensation for damages to natural resources (NRD), we recommend that…rules be adopted to provide transparency, certainty and consistency in the assessment of those damages.”

Unfortunately, this Christie Transition report recommendation for NRD regulations has yet to be undertaken, let alone implemented. 

Because so many contaminated sites and millions of dollars are at stake in this program, and because DEP’s mismanagement appears to be putting those benefits to state taxpayers and residents in jeopardy, we urge that your Office investigate this DEP program and make recommendations for improved performance, transparency and accountability. 

(read full letter:  http://www.peer.org/assets/docs/nj/8_9_12_Comptroller_ltr.pdf

Unfortunately, after expressing initial interest in pursuing an investigation, the Comptroller’s Office rejected our request with little explanation as to why.

As you know, during the March 16, 2015 floor debate on Senate Resolution opposing the Exxon settlement, Senator O’Toole complained loudly of a lack of information on the NRD program and whether it was performing well in prosecuting more than 4,000 cases filed during the McGreevey Administration.

Had the Christie Administration’s Comptroller conducted the investigation we requested, not only would legislators have good information right now, but the Exxon fiasco might  have been avoided.

We bring this information to your attention in hopes that you may consider it during the Committee’s investigation and deliberations on the Exxon deal.

Additionally, we raised similar concerns regarding the performance of the DEP’s NRD program back in October of 2007, in the take of an adverse Superior Court decision in the case of Ewing Township. (N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007).

“On August 24, 2007, a state Superior Court dismissed with prejudice an attempt by the New Jersey Department of Environmental Protection (DEP) to recover a natural resource damage claim involving benzene and toluene contamination of private wells in the Hillwood Lakes area of Ewing Township. (N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007)). The Court found that DEP did not follow the rule making process to establish, by regulation, a reliable formula for calculating natural resources damages. In the absence of regulations, the Court also found DEP lacked adequate scientific support to proceed on a case-by-case basis.

In a 2004 settlement agreement of the case New Jersey Society of Environmental & Economic Development v. Campbell (N.J. Super. Law Div., Mercer County) DEP legally committed to propose formal natural resource damage regulations. Those NRD regulations were never adopted by DEP.

For additional documents see:

NEW JERSEY FORFEITS HUNDREDS OF MILLIONS IN POLLUTION DAMAGES