WolfeNotes.com

The Pope arrived in the US today and was greeted by President Obama.

Meanwhile, the elites up at idyllic Duke Farms – unwitting targets of much of the Pope’s withering analysis and scathing criticisms – apparently felt that the Pope’s arrival was perfect timing to publish an Op-Ed.

Now, this wasn’t just any Op-Ed.

This Op-Ed was – like the Pope’s visit – special.

You see this self congratulatory Op-Ed touted Duke’s receipt of an award from the worst DEP in the 50 year history of the institution, the Chris Christie DEP.

And what was the DEP award issued for?

None other than that bold policy of “Stewardship”:

• Duke Farms receives N.J. DEP Stewardship Award

Since we’ve written so much about Duke Farms, Mike Catania and the fraud called “stewardship”, in the spirit of the Pope’s visit and his magnificent encyclical, we’ll rely on the Pope’s words, which are incredibly apt:

At the same time we can note the rise of a false or superficial ecology which bolsters complacency and a cheerful recklessness. As often occurs in periods of deep crisis which require bold decisions, we are tempted to think that what is happening is not entirely clear. Superficially, apart from a few obvious signs of pollution and deterioration, things do not look that serious, and the planet could continue as it is for some time. Such evasiveness serves as a licence to carrying on with our present lifestyles and models of production and consumption. This is the way human beings contrive to feed their self-destructive vices: trying not to see them, trying not to acknowledge them, delaying the important decisions and pretending that nothing will happen. ~~~ Pope Francis; ON CARE FOR OUR COMMON HOME (p. 59) (2015)

[End Note: the phrase “stewardship” should be treated like “Less filling – tastes great!”

It is a slogan. And as a slogan, it is designed to obscure and obfuscate reality to mask an agenda. It has no operational definition or standards or measurement or performance metrics and thus is inherently prone to abuse.

If private conservation groups, private land owners, and private corporations – with private money – want to engage in whatever they believe is stewardship of their private property, or dupe their members, shareholders, investors, and the public, then have at it.

But don’t import the concept into public policy, law and regulation and financial subsidy.

If governments want to burn fields or log forests; or spray chemical herbicides/pesticides; or dump sewage or dredge spoils in wetlands; or dredge streams; or destroy wetlands or riparian vegetation; or privatize public lands; or grant permits to developers that bend laws and regulations; or any of a myriad of mitigation, offset, trading, or flexibility schemes; then let them justify and publicly defend those proposals based on data and ecological science, not slogans like “stewardship”. ~~~ end]

[*Updates below]

By the AG’s refusal to disclose the basis for his assessment of litigation risk and the risk factors that led to his decision to settle, the Court had NO basis to review the State’s exercise of discretion. This is not judicial deference, this is judicial abdication. ~~~ Bill Wolfe

The NJ Law Journal (NJLJ) reports that environmental groups will have a tough time, see:

• Opponents of Exxon Accord Face Long Odds on Appeal, Lawyers Say

I attended the last oral argument and read Judge Hogan’s opinion, which I characterized as a “detailed roadmap to every loophole and weakness in the DEP NRD program.”

I challenged legislators to use the Hogan opinion as a basis for legislative oversight and reforms to the law and DEP enforcement of NRD claims.

I like reading the legal eagles at NJLJ, they are far better than the news reporters.  But there is one relevant aspect I think is being ignored.

This issue in the NJLJ story particularly caught my eye because it is something I’ve been thinking about:

In addition to the deference typically given to the trial judge and his or her feel for the case, the environmental groups will face an additional hurdle in that appeals courts also generally tend to defer to decisions made by government agencies, Yoskin said.

“Any government agency is going to be given some degree of deference,” Yoskin said. “They are highly specialized in their fields.”

Yoskin is correct in stating the law, in terms of what is called the judicial standard of review with respect to deference to administrative agencies.

But in this case, in my informed but non-lawyerly opinion, Judge Hogan applied the wrong standard of judicial review and deference to [DEP] agency decision-making.

The theory of deference is grounded in and justified by agency scientific and/or technical expertise. Judges defer to scientists and experts on fact questions of science because they lack the knowledge and training and because the Legislature delegates this power to the executive branch agency.

But, as Hogan‘s own opinion makes clear, in the Exxon case, DEP settled the case almost exclusively based on litigation risk. As NJLJ reported:

“Although far smaller than the estimated $8.9 billion in damages, Exxon’s payment represents a reasonable compromise given the substantial litigation risk the DEP faced at trial and would face on appeal,” Hogan said in his ruling.

Evaluation of litigation risk is an exercise of legal judgement – or discretion – that is not scientific or technical. It is not delegated to DEP by the Legislature based on agency expertise. It deserves little judicial deference and a heightened degree of judicial scrutiny than what Hogan applied.

[* During oral argument, despite the fact that, by his own words, the Settlement was based on litigation risk, the Attorney General flat out refused to defend, justify or explain his assessment of that risk. The AG stated:

“I won’t go into specifics of where the State’s case is weak. I won’t hurt the state by showing where weakness lies (close paraphrase)

By the AG’s refusal to disclose his assessment of litigation risk and the risk factors that led to his decision to settle, the Court had NO basis to review the State’s exercise of discretion. This is not judicial deference, this is judicial abdication.

Shortly thereafter, Exxon’s lawyer was not so shy. He went int detail on the specifics of where he felt the State’s case was weak.

Judge Hogan’s opinion followed Exxon’s analysis of these weaknesses very, very closely, which is what I described his opinion as a “detailed roadmap to every loophole and weakness in the DEP NRD program.”]

Second, Hogan has appearance of conflict of interest and lack of objectivity/independence as a result of the fact that he was DEP Commissioner Bob Shinn‘s legal counselor during the “Open For Business” Whitman Administration.

Why is that relevant fact not reported?

The NJ ethics law that applies to the Executive branch adopts an “appearance” standard – so does the Legislative branch’s ethics code. I’m sure the cannons of judicial ethics are even more restrictive.

Full disclosure: I had one interaction with Hogan while I was at DEP regarding proposed legislation to extend the life of the Cape May Landfill.

I advised Hogan that the bill would violate a federally enforceable settlement and closure order with the Pinelands Commission and that we should oppose the bill as inconsistent with federal law. Hogan blasted me for that and propounded a far right legal theory of federalism.

His faced turned red and he practically screamed at me:

Are you a lawyer? Do you think Congress can tell the NJ legislature what to do?

My jaw dropped.

So much for “judicial temperament” and the taboo concept of “ideology”.

[Update: A reader just raised important related issues.

The reader reminded me that during oral argument, Judge Hogan interrupted the presentation of the NRDC lawyer – something he did numerous times to NRDC, but only rarely did to Exxon’s lawyer – to say (paraphrasing):

“DEP represents the environment, so why should we let you into the case”

The NRDC lawyer had no answer. I was stunned by that.

The reader also reminded me that:

“Also the NRDC did not want to put anything on the record about DEP with holding information , lying or why they should not have the presumption of validity.”

Absolutely right on both points.

Also, both Judge Hogan and Exxon’s lawyer referred to the NRDC lawyer – several times – not as “Counselor” or by name, but as “she”.

I felt that was incredibly disrespectful and blatantly sexist. Hogan and Exxon’s lawyers never used “he” when citing the arguments of other attorneys.

Christie’s “Regulatory Relief” Order Restricts State Agencies To Minimum Federal Requirements

Democrats In Legislature Must Step Up and Block Christie Rules

The Bergen Record reports today that the Christie Administration’s update of NJ’s Uniform Construction Code (UCC) does not include new requirements to address a major fire in Edgewood, despite recommendations by fire safety experts, legislators and the public:

For months after a five-alarm fire ripped through a massive apartment complex in Edgewater and left a pile of debris in its wake, residents, firefighters and lawmakers called for changes to state regulations that dictate building standards and requirements, in hopes of improving fire safety.

Many provided input to the New Jersey Department of Community Affairs, which happened to be in the midst of updating the state Uniform Construction Code, a process that takes place every three years.

On Monday, the newly revised code will take effect. But absent are the changes that so many had been pushing for after the Avalon at Edgewater fire.

Department of Community Affairs Commissioner Richman says he is not authorized to go beyond minimum national standards:

“While many people commented on changes they wish to see in the code relative to the construction of mid-rise buildings, we have no authority to exceed what the national code calls for,” Richman said.

Assemblyman Wisnewski disagrees with Richman’s interpretation of State law, while a local Assistant Fire Chief was “shocked” by Commissioner Richman’s interpretation.

What I’m shocked by is that apparently no one is aware of the likelihood that Richman’s interpretation of State law with respect to his authority to exceed minimum national standards is influenced strongly by Gov. Christie’s Executive Order #2.

Gov. Christie has set a statewide policy, which is mandatory on all State agencies, to provide “regulatory relief”, to rely on minimum federal standards, and to not exceed minimum federal standards:

The EO provides limited exceptions to go beyond federal minimums – and the Edgewater fire clearly provides a strong basis to deviate from the Christie federal minimum policy.

But the Gov.’s Office must review and approve rules prior to proposal and they enforce compliance with the EO and strongly discourage exceptions – while the business community uses the EO as a hammer against State agencies on regulatory issues.

Under EO #2, the business community is provided an advanced “pre-proposal” review of drafts of any new rules, a process which is explicitly intended “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

The business community uses that “heads up” and the EO #2 “regulatory relief” policy’s minimum federal standards and new cost-benefit analysis requirements to block necessary new rules, regardless of the public interest, public health and safety, or protections of the environment.

NJ State agencies historically have been national leaders on regulations, given NJ’s unique challenges related to population density, heavy industrialization, and legacy pollution.

Christie’s Executive Order reversed 40 years of history, changing NJ from a national leader to a national laggard.

Christie’s EO has put a brake on State agencies and forced rollbacks to existing regulations.

Taking NJ two steps back, recently, DEP has even failed to meet minimum federal requirements on flood, water quality, and coastal zone protections.

Assemblyman Wiznewski needs to hold hearings and use his Constitutional power to block any regulation that is “inconsistent with legislative intent” until the recommendations of fire safety experts are included in new UCC rules.

In case Wiznewski needs it, here’s the Constitutional language:

6.   No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.  The Legislature shall provide for the prompt publication of such rules and regulations.  The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  This vote shall not take place until at least 20 calendar days after the placing on the desks of the members of each House of the Legislature in open meeting of the transcript of a public hearing held by either House on the invalidation or prohibition of the rule or regulation.

Approaching A Million Minutes of Reader Time At Wolfenotes

Once in a while I do the Google analytics thing.

So, we’re blowing our own horn tonight, because, while we have many critics, certainly not many others are touting our efforts.

We recently passed the half million reader page view milestone, with about 2 minutes average per reader session. The large majority of that traffic is from NJ and Trenton is by far the largest concentration of readers.

I have no idea if that’s good, bad, or ugly in terms of blog traffic.

What I do know is that we’ve been doing this just about daily since 2007, with zero financial support –

So I hope all that time was not wasted on readers –

I know my time was not wasted in posting the material and I know it has had an impact on the media’s framing of issues, on the efforts of citizens seeking justice, and on public policy.

We think we create value and provide solid information, analysis, criticism, context, and photographic beauty readers don’t get elsewhere in that kind of package.

For free.

So, we will keep on fighting the bastards and writing what we feel like writing, with accountability to my own conscience and no one else.

Enjoy.

Wolfe

From The Pope To Paris

[Update: 12/24/15 – more recent data show US coal exports down 20%.]

If, as the Pope says, responding aggressively to the climate crisis is a moral imperative – which we believe it is – then so is telling the truth.

But with the Pope’s US visit imminent and the Paris Climate Conference negotiations upcoming in December, we’re bracing for a propaganda assault, not truth telling.

In that spirit, we thought we’d post a brief note with some relevant data and context within which to evaluate the invariable distortions of the Obama Administration’s climate “achievements”.

In fact, our skeptical selves have considered the distinct possibility that the Obama Alaska Charade was Obama’s strategic and very cynical attempt to get out in front of and pre-empt or inoculate himself from any criticism by the Pope on the climate front.

The Pope’s Encyclical On Care for Our Common Home demonstrated a basic – but qualitative – grasp of scientific literacy.

But has the Pope crunched the numbers and understood the implications of the “terrifying new math” and applied that quantitative perspective to the Obama climate record?

Much of the relevant data is readily available – with projections and accessible charts – from the US Energy Information Administration.

Will the Pope – and expected huge hordes of the faithful flock, with media stenographers in tow – ignore the math and give Obama a pass in the run-up to Paris?

Here’s some of the data the Pope’s people and the press corps should be looking at as they assess the Obama Clean Power Plan achievements.

These data do not consider significant greenhouse gas emissions attributable to the US imports from the shipping of commodities in global trade or the huge carbon footprint of the US military machine.

These data do not account for the future emissions from Obama administration’s coal leases, the arctic drilling, or off shore oil and gas leases, or EPA issued mountaintop mining permits or the huge projected expansion of the US fracking production and pipeline distribution promoted across the board and subsidized by Obama policy.

On the issue of coal alone, Greenpeace reports:

Of course, publicly owned coal also represents a major source of carbon pollution, as detailed in a 2012 report prepared for the Wilderness Society, “Greenhouse Gas Emissions from Fossil Energy Extracted from Federal Lands and Waters.” That report showed that in 2009, “fossil fuel extraction from federal lands and waters by private leaseholders could have accounted for approximately 23% of total U.S. GHG emissions and 27% of all energy-related GHG emissions.” The report also found that coal is responsible for most of the carbon pollution from those federally leased fossil fuels; in 2010, 888,946,650 metric tons of CO2, 57% of the total 1,550,638,866 metric tons of CO2.

These data do not consider the fact that the US has de-industrialized and off-shored manufacturing, such that the climate emissions from the products we import and consume are attributed to China, India and the other countries that have absorbed the former US manufacturing sector.

US emissions would be significantly higher if the emissions from manufacture of US imports we consume were included as US emissions.

Taken together, these current and projected greenhouse gas emissions that will result from Obama’s “all of the above” energy policy dwarf the emissions reductions of the Administration’s much touted Clean Power Plan.

That’s the kind of “netting” accounting analysis the Pope needs to consider.  Do the math:

Shale Gas production has soared under Obama:

Contrary to the “bridge fuel” claims of the gas industry, an analysis shows that more than half of alleged US greenhouse gas emissions reductions attributable to fuel switching from coal to gas are erased by increases in coal exports, see: Has US Shale Gas Reduced CO2 Emissions?

The calculations presented in this report suggest that more than half of the emissions avoided in the US power sector may have been exported as coal. In total, this export is equivalent to 340 MtCO2 emissions elsewhere in the world, i.e. 52% of the 650 MtCO2 of potential emissions avoided within the US.

In addition to these substitution/export effects, also keep in mind that the alleged 50% GHG emissions reductions attributed to fuel switching from coal to “cleaner burning” natural gas fail to account for the lifecycle GHG emissions from gas production – from the fracking well to the power plant.  Lifecycle emissions studies show that GHG warming potential from gas is as bad or could be worse than coal.

When the effects of fuel switching on coal exports and lifecycle gas emissions are considered, then emissions certainly have increased as a result of the explosion in gas production (which also diverts capital from investments in renewables and artificially low gas prices undermine the economics of renewables as del).

So let’s look at US coal production and export trends under Obama’s “All of the above” energy policy:

There is no “Obama War on Coal”

coal production level at 1 billion tons/year

 US coal production is stable, while exports have more than doubled under Obama:

Of course, there’s also US oil production in the Obama fossil portfolio – that vertical rise on the right is Obama’s achievement: US oil production at record high levels, without counting new arctic, Gulf of Mexico, and offshore drilling

Now compare those steep rises in shale gas and oil production and coal exports with the very modest slight increase in the share of electric generation by renewable energy:

So, do the math – convert these fossil fuel production tables into greenhouse gas emissions. Here are EIA emissions factors – plug and chug.

We are confident that the math will show that Obama’s climate bark is far greater than his bite.