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Pinelands Forests Already Adversely Impacted By Climate Change

Climate Models and Impact Assessments Predict Significant Impacts Will Worsen

(Source: NJ Pinelands Commission)

The South Jersey Gas pipeline debate is important, but it is consuming far too much focus and resources. It’s surely not time to declare victory and move on, but it is time to focus on critical issues and go on offense, instead of playing all defense.

In that regard, we’ve previously written about current climate change impacts and future threats to Pinelands forest and ecosystems, see:

• Climate Change Already Impacting Pinelands Forests
• Will Climate Change Destroy The Pinelands?

During the course of – and in the wake of – the debate on the South Jersey Gas Co. pipeline, we repeatedly urged the Commission to address energy and climate change issues via revisions to the Comprehensive Management Plan.

We have yet to receive a response to or seen any indication that those recommendations were seriously considered – by the Commission or our activist and preservation colleagues.

The Commission must address energy policy and the science of climate change in their efforts to preserve the ecosystems and natural resources of the Pinelands under the Comprehensive Management Plan.

Source: NJ Pinelands Commission

Today, we again wrote to urge the Commission to initiate this science, planning and regulatory initiative (sees below letter).

To show the Commission that this is not some abstract notion, we provided a copy of the Adirondack Park Agency’s policy, which I urge readers to take a look at.

Because I’ve previously testified and written to the Commission to provide the various scientific studies, particularly on forest impacts, I’ve left them out of this letter and post.

Dear Chairman Lohbauer and Director Wittenberg:

As I’ve previously testified to the Commission and the P&I Committee, based in part on the work of Commission scientists and other scientific research in the Pinelands, climate change is already impacting regulated Pinelands resources.

Climate change models and impact assessments predict these impacts will increase over time at an accelerating an unknown rate and degree.

While I believe that the Pinelands Protection Act (Act) provides ample legal authority to address climate and energy issues, as does at least one Commissioner, Counselor Roth has speculated and advised that the Commission lacks jurisdiction to consider climate impacts or regulate climate change or energy sources/projects.

As I’ve testified to the Commission, the Act could be implemented to advance the policies and emission reduction goals of the NJ Global Warming Response Act.

While I do not think it is a prerequisite to proceed with such an initiative, I’ve insisted that Ms. Roth’s speculative guidance is in error and urged the Commission to obtain a formal Attorney General’s opinion on the various relevant legal issues, include jurisdiction, authority, scope, etc.

With this recent history in mind, I again urge the Commission to address the issues of climate change and energy policy in the Comprehensive Management Plan (CMP).

As ane example of what that might look like and that the Commission could expand upon and adapt to the Pinelands, please see a sister water and forest resource based regional land use planning agency’s energy policy, The Adirondack Park Agency (2008):

Policy on Energy Supply, Conservation and Efficiency in the Adirondack Park

http://apa.ny.gov/Documents/Policies/Agency7_Energy_Policy.pdf

When and how could this set of issues get on the Commission’s agenda?

I urge your favorable and timely consideration,

Respectfully,

Ecological Standards Are Far Stricter Than Human Health Standards

[Update below provides example]

Back in 2010, Governor Christie quietly signed legislation – portrayed at the time as eliminating defunct government advisory boards – but that also eliminated DEP’s legislative authority to adopt ecologically based cleanup standards in NJ’s toxic site cleanup program (scroll to page 3 to see the new section 35.a language, which deleted the ecological standards and link to recommendations of the Environmental Advisory Task Force – see below for the specific original language that was deleted by this law. If you want the actual fingerprints, you have to go back and read the bill, A2851 [1R] the Gov. signed – look who sponsored it! Mr. Red Tape himself, Burzichelli, (D-Oil))

• see this for our contemporaneous analysis of Christie’s gutting of ecological standards
  
• also see our 2009 letter to Gov. Corzine urging him to adopt ecological standards for cleanups.

That one stealth move by Gov. Christie reduced the cleanup liability of polluters at hundreds of sites in NJ by billions of dollars and assured that NJ’s natural resources would not be protected from toxic sites. Here’s how.

Previously, we explained the huge difference between the extent and cost of a site cleanup to meet ecologically based standards for “restoration” of natural resources under DEP’s Natural Resource Damage (NRD) program (i.e. “permanent remedy” excavation of contamination to original conditions), versus the far lower cost of a “remediation” under DEP’s Site Remediation program (i.e. “engineering controls” to merely cap contamination on site).

The Exxon deal shines a very bright light on that distinction, but it also shows how ecologically based cleanups are far stricter, better,  and more costly than cleanups based on protection of human health.

The Exxon economic analysis highlights that critical point (on page 8):

The DEP’s ability to compel ecologically based cleanups has long been a controversial issue in NJ. Polluters have strongly opposed DEP’s efforts to base cleanups on far more costly ecological protections that require far more complete cleanups.

In 1993, the legislature sided with the polluters and passed a law that said that DEP could not adopt ecologically based cleanup standards until an expert Environmental Advisory Task Force (EATF)  met and provided scientific recommendations (see: Section 35 .a. of P.L.1993, c.139 (C.58:10B-12):

The department shall not propose or adopt remediation standards protective of the environment pursuant to this section, except standards for groundwater or surface water, until recommendations are made by the Environment Advisory Task Force created pursuant to section 37 of P.L.1993, c.139. Until the Environment Advisory Task Force issues its recommendations and the department adopts remediation standards protective of the environment as required by this section, the department shall continue to determine the need for and the application of remediation standards protective of the environment on a case-by-case basis in accordance with the guidance and regulations of the United States Environmental Protection Agency pursuant to the “Comprehensive Environmental Response, Compensation and Liability Act of 1980,” 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable.

Members of the EATF were supposed to be appointed by the Governor.

The polluters used their political muscle to block those appointments. As a result, there were no appointments and the EATF never met and never made recommendations to DEP pursuant to Section 35.a.

As a result, the DEP never adopted State ecological standards and therefore could not force polluters to cleanup toxic sites to protect natural resources. There was a defacto moratorium that held ecological standards in limbo for many years.

We confronted this lack of DEP ecological cleanup standard in out battle with Dupont in Pompton Lakes – here’s how Dupont themselves note this lack of DEP standards:

NJDEP has promulgated soil remediation standards for residential and nonresidential exposure. However, no promulgated soil standards are available for ecological receptors.

NJDEP does not have any promulgated sediment criteria for evaluating potential human exposure or for ecological receptors. For ecological receptors, NJDEP’s 1998 sediment guidance is available to evaluate sediment quality within Baseline Ecological Evaluations as part of implementing the Technical Requirements (N.J.A.C. 7:26E). However, in accordance with the sediment guidance (NJDEP, 1998), these values are not cleanup standards.

Lack of ecological standards severely weakens DEP’s hand in negotiating with polluters on cleanups, because – as Dupont clearly notes – the Guidance values are not standards and are thus not legally enforceable.

Then, 17 years later, Gov. Christie used the failure of the EATF to be formed, meet, and make recommendations to DEP as an excuse to kill it as a defunct advisory board.

The law that Christie signed in 2010 abolished the EATF.

And in the law killing the EATF, Christie also stripped the above cited Section 35.a. provisions from NJ’s cleanup laws that give DEP the legal authority to develop ecologically based cleanup standards, thereby prevention any future Governor or DEP Commissioner from strengthening NJ’s cleanup program.

That move permanently  absolved NJ’s corporate polluters from the costly cleanups we are now seeing exposed by the Exxon $8.9 billion deal.

Specifically, a $1.53 billion cost component of the DEP’s Exxon on-site natural resource restoration plan was for excavation and off-site disposal of 9 million tons of contaminated sludge, soils, and sediments to meet ecological protection standards.

DEP could not compel such a costly excavation under DEP’s site remediation program, which lacks ecological cleanup standards.

So, long before Gov. Christie cut the dirty deal with Exxon, he gutted NJ’s cleanup laws to prevent DEP from ever adopting the kind of ecological cleanup standards that would have cost Exxon $1.53 billion at just one site.

[Update – as an illustration of how controversial ecological standard is:

In 2002, DEP Commissioner Campbell attempted an end run around the legal bar in remediation law to cleanup standards. DEP relied on its Clean Water Act authority and proposed ecologically based surface water quality standards known as “wildlife criteria” for toxics PCB, DDT, and mercury.

The polluters waged a strong political campaign opposing that proposal, met secretly with Campbell  – see letter to DEP by the Chemistry Council – which forced DEP to withdraw that proposal.]

NJ’s Most Significant Environmental Dispute Remained Below The Public’s Radar for Years

Sunshine and Public Pressure Could Have Blocked Christie’s Dirty Deal

The DEP filed “Natural Resource Damage” (NRD) lawsuits in 4,000 cases, including Exxon, back in 2004 – at the time DEP filed them, the DEP issued a press release publicly announcing the lawsuits.

Similarly, in 2007, to avoid the tolling of a legislatively imposed statute of limitations, the DEP issued another press release on filing 120 NRD lawsuits, which included the prior filings on Exxon Bayway (2004) and Exxon Bayonne (2004).

Then, things seemed to fall into a legal black hole, below the public radar.

In 2006, a DEP Consultant developed and submitted to the Court an extremely ambitious and precedent setting $8.9 BILLION restoration plan, certainly one of the largest NRD restoration plans in the Country, by both acreage and cost.

For context, the notorious Exxon Valdex 1989 oil spill in Alaska, which contaminated over 1,500 miles of shoreline, was only a $1 billion NRD settlement.

According to the DEP consultant Report:

Exxon previously funded actions to restore coastal wetlands of the Arthur Kill estuary to compensate the public for losses related to petroleum contamination. In January 1990, a Bayway pipeline running beneath the Arthur Kill ruptured, spilling 567,000 gallons of No. 2 fuel oil. Over 100 acres of salt marsh were oiled, killing the marsh vegetation, fish, crabs, clams, and other invertebrates dependent on the wetland habitat. An estimated 700 birds died as a result of the spill. As a result of natural resource damage claims brought by federal and state natural resource trustees, Exxon agreed to pay $11.5 million in settlement to restore injured natural resources (NOAA et al., 2006).

The Report presents the costs of other natural resource restoration projects in the region – in terms of cost and size (acreage):

The DEP’s Exxon plan dwarfed these prior projects in both acreage and cost.

Additionally, the DEP Consultant’s Report cites their plan as based upon and advancing the restoration work of NJ based groups, American Littoral Society (ALS)  Atlantic Coast Restoration Inventory, April 14, 2006 and NY/NJ Baykeeper:

Programs and conservation agencies and organizations such as the NJDEP Green Acres Program, NJ Meadowlands Commission, NJ Meadowlands Conservation Trust, NJDEP’s Landscape Project, the New Jersey Natural Lands Trust, the New Jersey Conservation Foundation (NJCF), the NY/NJ Harbor Estuary Program (HEP), the NY/NJ BayKeeper, the Natural Resource Conservation Service (NRCS), USFWS, and NOAA are actively working to protect, preserve, and restore the ecological integrity and productivity of natural resources in the area, and to provide public access to such green spaces. These thriving preservation and restoration programs evidence local and regional support for restoration and preservation of natural areas.

So, one might presume that those groups were involved with or at least aware of the DEP’s Restoration plan, particularly ALS whose work was used to to evaluate the feasibility of the off site restoration plan.

Why was there no huge media and environmental group focus on an issue of this magnitude?

Recent new reports reveal that the Exxon case went to trial in November, with prominent NJ conservation leaders involved and providing testimony as witnesses.

Yet I don’t recall ever hearing one word about this huge DEP $8.9 billion regional restoration plan or the legal dispute in the courts.

Why was the public and the press blindsided by the Exxon deal?

Wouldn’t public awareness, environmental group advocacy, and media investigation and scrutiny have influenced or prevented the Christie administration from cutting such a horrible deal?

Why was there virtually no awareness of one of the largest natural resource damage and restoration plans in the country?

Were NJ’s coastal advocacy groups aware of and working on the restoration plan?

Maybe we were blind sided because the coastal advocacy groups have gotten too close to DEP and are funded by DEP?

Maybe because coastal advocacy groups were keeping quiet in anticipation of receiving some of the huge $8.9 billion windfall to fund their own organizations in support of the DEP’s Restoration plan?

Maybe because coastal advocacy abandoned government accountability, complex regulatory work, and public advocacy for a model based on local, voluntary, “good news”, feel good window dressing crap like this?

• Restoring coastal habitats is a local endeavor

(Source: Todd Bates’ blog)

My apologies to all involved if it was just me that was asleep at the switch.

NowTopia 

• Bordentown inks deal with Chesterfield, North Hanover – Pact will provide 100% local food

• Local Artists Occupy, Rejuvenate Shuttered Ocean Spray Plant

• NJ Transit announces Statewide Inter-City Rail and Urban trolley plan

• “Green Energy NJ Co-Op” formed – Public Agency Will Generate, and Distribute 100% Renewable Power By 2030

• Lisa Jackson Returns To NJ With Bill Gates To Announce Apple Computer Will Join Trek Bicycles to Finance GreenMotion – $ 200 Billion Joint Venture Will Convert Former NJ Urban Industrial Blight Into State of the Art Electric Car & Bicycle Manufacturing – Phase I to provide 10,000 jobs by 2020.

• US Steel and General Motors Announce Plan To Manufacture Wind Turbine Plants in NJ – Worker Owned Project Will Supply Atlantic Coast Wind, create 20,000 jobs

• PSEG and JCP&L Liquidate Assets – Sell Power Plants and Distribution System to “Green Energy Co-Op”

• US Attorney Fishman Indicts Gov. Christie and 7 Others on Conspiracy and Fraud Charges – Gov. Faces 20 Years In Prison, Resigns In Disgrace Claiming: “I am Not A Crook or a Liar”

• Legislature Enacts Package or New Revenues To Finance Infrastructure Deficits and Create 25,000 New Jobs – Will Generate $10 Billion/Yr From Set Of Millionaire Wealth, Carbon Fuels Phaseout, & Financial Transaction Taxes

• DEP Announces Plan To Require That All Drinking Water and Wastewater Discharge Plants Install State of the Art Pollution Controls

• New Water Supply Plan Will Reduce Water Consumption By 25% Over Next Decade

• BPU and DCA Finance $100 Billion Energy Efficiency Program – Will Reduce Energy Demand By 25% and Generate 40,000 Local Jobs

• NJ Department of Corrections Announces Phase Out of State Prison System – Joins With COAH and Habitat for Humanity In Affordable Housing Project – Former Prisoners Will Build Thousands of Housing Units At Living Wage

•  Port Authority Announces Closure of Regional Airports – Founding Member of National Inter-City High Speed Rail Consortium

• NJ National Guard Works Closely With Pentagon on President Obama’s “Bringing Them Home” Initiative – Military Bases Converted to Civilian Uses – Millions of former Troops Join New National Conservation Corps (NCC)

• National Conservation Corps Announces Plans to Plant 50 Million Trees In NJ Cities – NCC Will Create 10,000 Miles of Hiking trails and Bike Lanes Over Next 5 Years

• NJ Foundations Announce “People First” Initiative:  Funds To Be Reallocated To Small Local Grasroots Groups Serving Urban and Poor People

• School Development Authority Will Build Hundreds Of New Public Schools And Oversee Dismantling Of NJ’s Racist Apartheid School System: Racial Balance and Statewide Funding Equity By 2020

• NJ Uses Legislative Power To Seize Assets of Private Hospitals and Health Care Institutions – New Public Health Plan Expands Charity Care and Will Provide Single Payer Public Health System For All New Jerseyans

• NJ State Police Leads “Protect and Serve” Effort To Dismantle Militarized Police Forces – Disbands SWAT Apparatus and Forms Citizen Review Boards With Investigatory and Subpoena Powers

• NJ Department of Labor MAkes Adjustments to Comply with New National Requirements: Age 60 retirement; max. 28 hour work week, 7 hour workday, SS COLA payments

• NJ Department of Education Announces Free College Tuition Plan

• “Citizen -Green Party” Announces Slate of Candidates in 21 Counties and 120 State Legislative Races – New Public Campaign Finance Law Opens the Door to Fresh Blood

If you’ve read this far, you probably know that virtually none of this is happening.

Are any groups organizing on this kind of vision and program? Making these kind of demands?

If not, why such a lack of vision?

Are NJ Foundations, who make warm fuzzy liberal noises about social and environmental justice and sustainable development, funding any of this kind of work?

If not, why not?

None of this defies the laws of physics – and we have the wealth to make it happen.

I want to write this down before I go to bed in case I die of a heart attack in my sleep after reading the news before bed.

Governor Christie again flat out lied about the Exxon dirty deal with this remark at a town hall today, which falsely states that DEP cleanup plans ignore the cost of cleanup: (Bergen Record story)

“What I will tell you is, they’re going to clean everything up, no matter what it costs, and we get $225 million on top of it.”

Fact checking this statement is not an exercise in nuance.

Exxon will NOT “clean everything up, no matter what it costs”.

That assertion is completely false as a matter of law, policy, and DEP practice.

First of all, the Gov.’s comments  involve several BILLION dollars; second the law is absolutely clear and it directly contradicts the Governor’s statement; and third the Gov.’s own DEP flat out contradicts him.

This is NOT NUANCE.

Costs are a major consideration in NJ cleanup law and DEP policy, which explicitly allows for what legally are called “engineering and institutional controls”, or so called “non-permanent remedies” we deride as “caps” and “pave and wave”.

Here’s what DEP says about the role of costs and all that:

“Historically, site remediation required the total removal of the contamination source(s) or implementing permanent means to reduce the contaminant levels to accepted Department standards. It has been found that such permanent remedies may be technically infeasible or cost prohibitive; therefore, the need for and use of non-permanent remedies has become more prevalent. “

 We tried to explain that and repost this:

• Media Confusing Exxon Bayway Remediation (Cleanup) With Natural Resource Restoration

Get it right next time, please!

[Ps – just print a table and maps from the Report in the newspaper that shows that:

• $2.63 billion was for on-site restoration at Bayway and Bayonne refineries – this cost estimate assumed $1.52 billion for complete excavation of 9 million tons of toxic sludge, soils, and sediment, which is something DEP would NEVER require but just cap in place; and

• $6.36 Billion is for OFF SITE COMPENSATORY damages to habitat (not to things like recreation and lost public use).  This is compensation to the public and replacement for the pollution and destruction of natural resources for 100 years. It is based on restoration costs of up to $274,000 per acre.