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Says It All In the Plastic Gloves

What’s Next, Respirators and Tyvek Moon Suits?

Update – 11/3/15 – Location note from a reader:

Just a heads up, that picture of Ms. Enck was taken in the Passaic River between Newark and Harrison just south of the I-280 overpass. You can see the “iconic” Valley Landscape Inc. tower in the background, as well as the netting and light stanchions  from the Bears and Eagles Riverfront Stadium. 

Can NJ Follow Connecticut’s Lead on Killing An Interstate Gas Pipeline?

Or Will Christie’s DEP Be Allowed To Run Out the 365 Day Clock?

I’ve been frustrated by the PennEast (and other) pipeline opponents’ lack of focus on the only tool that can kill the pipeline (and hold State officials accountable). [Note: just found this powerpoint from Princeton Hydro – why is that analysis not field deployed by now?]

Off shore LNG opponents have understood how this game is played and they are targeting Gov. Christie’s (and Cuomo) power to veto the project (I argue that this effort is too little and too late, but at least it is happening).

Christie and his Attorney General and DEP have similar power to kill the PennEast pipeline – yet opponents are completely ignoring this critical power.

FERC is not your friend and you won’t win there (or in court challenging their NEPA review or final FERC certificate).

Municipal and County resolutions, property owner denial of access, property rights arguments, filing for FERC intervention, comments on NEPA EIS documents, DEP FERC NEPA reviews, the DRBC, the D&R Canal Commission, NJ State House Commission (land diversion), delays, “regulatory uncertainty”, bad press, polls, public education, press conferences, religious ceremonies, protests, et cetera are all great tactics in organizing and building public opposition, but will not win the day or hold State officials accountable.

You are missing the target. Badly missing the target.

But don’t take my word for it:

(Old) Newsflash:

State officials said the decision was a surrender to intense opposition that led both Connecticut and New York to deny permits for the Islander East project, a joint venture between Spectra Energy and National Grid.

Attorney General Richard Blumenthal, who negotiated the withdrawal of the appeal, described the decision as “the white flag we’ve been waiting to see – final, irrevocable and undeniable surrender.”

The line, which Spectra Energy and National Grid had spent tens of millions of dollars to plan, would have supplied gas to an estimated half-million homes. But state environmental officials said the pipeline would harm water quality and damage important shellfish beds around the Thimble Islands in Long Island Sound.

Note the tenses: (Source: Downstream Today – an energy industry publication)

Project description

The Islander East Pipeline was a proposed interstate natural gas pipeline that could supply natural gas in Connecticut, New York City, and Long Island, N.Y. Spectra Energy and KeySpan Energy were to co-own the pipeline.

The pipeline would have extended from North Haven, Conn., across Long Island Sound to the vicinity of Yaphank, N.Y. The Islander East facilities would have consisted of 50 miles of new 24-inch diameter pipeline with initial capacity of 260,000 dekatherms of natural gas per day.

Approximately one mile of the pipeline route was in dispute because it passed through the environmentally sensitive Thimble Islands region south of the Connecticut coastline. In February 2009, Connecticut’s governor and attorney general — both opponents of the project — declared the project “dead” because Spectra had withdrawn its appeal to the U.S. Department of Commerce to overturn the state’s denial of permits for the project. Previously, the U.S. Supreme Court let stand the state’s refusal is issue a water quality permit.

Here is the US Court of Appeals decision upholding the State’s denial by Connecticut DEP of a Water Quality Certificate:

Here is the EPA Section 401 Water Quality Certificate Guidance that explains all the details on how to do this.

Here is the US EPA Water Quality Standards Handbook – see especially Chapter 4 “Antidegradation”

Here are the applicable NJ DEP regulations:

1. Surface Water Quality Standards (SWQS): existing use protection; numeric and narrative criteria; anti degradation policy for C1 waters

2. Category One stream designations pursuant to the SWQS

3. Stormwater management rules C1 “Special Water Resource Protection Areas” (SWRPA) – 300 foot buffers and no reduction of “existing water quality” anti degradation standard from the SWQS

4. Stream encroachment permit rules that incorporate the SWRPA as a “riparian zone”

5. The Freshwater Wetlands permit rules that prohibit DEP from issuing any permit that would “cause or contribute to a violation of any applicable State water quality standard”

6. The Water Quality Management Planning rules that

• “Establish policies, procedures and standards which, wherever attainable, help to restore, enhance and maintain the chemical, physical and biological integrity of the waters of the State, including ground waters, and the public trust therein, to protect public health, to safeguard fish and aquatic life and scenic and ecological values, and to enhance the domestic, municipal, recreational, industrial and other uses of water”;
• “Establish water quality goals and water quality standards for the waters of the State”;
• provide that the DEP Commissioner “shall not undertake, nor shall he or she authorize through the issuance of a permit, any project or activity that conflicts with applicable sections of an adopted WQM plan or with this chapter.”

7. The NJPDES stormwater permit rules (NJAC 7:14A-25) that require compliance with the SWRPA in the storm water management rules and provide the municipal stormwater permits “shall require compliance with the applicable design and performance standards established under N.J.A.C. 7:8 for major development as defined in N.J.A.C. 7:8-1.

So, there you are folks – a roadmap to a win. Have at it. (text in italics is verbatim DEP regulation)

And don’t let DEP tell you that DEP doesn’t do things that way and that non point pollution is not regulated or subject to compliance with the SWQS.

Your challenge is to force DEP to change the way they issue permits and to start enforcing existing regulatory requirements, particularly the SWQS.

If opponents don’t put this issue on DEP’s plate and force them to respond, the will waive their power and let the 365 day clock run out.

In a future post, I will lay out the way to mount this challenge technically.

*PS – none of this is any secret to PennEast’s or DEP’s lawyers, so there is no benefit in keeping these issues quiet in some hope of outmaneuvering them.

DEP Buries Federal Clean Water Act Power Under Preempted State ENSP Program

[Update below]

Some of my PennEast opponent friends are praising the latest DEP environmental review letter to FERC on the PennEast pipeline, so, unfortunately, I again must be the skunk at the Garden Party and clarify the situation (see prior post).

Federal law includes the doctrine of preemption of State and local laws (curious wonks can read the Wiki backgrounder).

The federal Natural Gas Act under which FERC reviews interstate pipelines like PennEast preempts most state and local laws, with very limited exceptions.

This Congressional Research Service Report explains:

One of the exceptions that is not preempted are “federal approvals” – and the key one for PennEast that is not preempted is the Water Quality Certification under Section 401 of the Clean Water Act.

Additional support:

Finally, and most significantly, state agencies that implement federally authorized programs, such as the Clean Water Act or Coastal Zone Management Act are not subject to preemption. These statutes “effect a federal-state partnership…so that state standards approved by the federal government become a federal standard for that state” and cannot be overridden by FERC.16**   However, sometimes states waive their rights under these federal statutes by failing to act within the required time frame for making a decision (for example, Section 401 of the Clean Water Act requires states to act on an application within one year of the date that it is filed or the need for the approval is deemed waived). ** Note the Connecticut case in FN 16 – Conn. denied a federal permit and killed pipeline – my note

What that all means is that opponents need to find a federal hook that DEP is delegated to enforce – like the Clean Water Act.

However, instead of asserting this federal law based DEP Section 401 WQ Certification power, virtually every issue DEP raises in the most recent FERC review letter is based on state laws, which are preempted.

Again, the one tool they do have under the Clean Water Act – the Section 401 Water Quality Certification – is not even mentioned in the DEP comments to FERC.

The prior DEP letter to FERC completely failed to mention the one federal hook under the Clean Water Act that could be used to build an argument for killing the project under the Clean Water Act, which was 31 Category One (C1) streams the pipeline will cross.

There is no way possible for PennEast to demonstrate that every one of those 31 stream crossings will not lower “existing water quality”, which includes the physical, chemical, and biological characteristics and existing uses of those waters.

But DEP ignored that, and even went one step further and went out of their way to bury their Clean Water Act power

This time around, with all the recent attention given to C1 stream during the legislative veto debate on DEP’s new Flood Hazard rules, DEP could no longer completely ignore the C1 issues.

So, this time around, DEP did MENTION “significant concerns” regarding C1 stream crossings – but on page 19. The concerns the DEP raised were with respect to STATE regulated resources under STATE ENSP law – which are preempted:

But, that’s not the only place where DEP neutered their own Clean Water Act power to kill the pipeline.

There is another federal hook where DEP implements a federally delegated Clean Water Act program that could be a vehicle for showing how the pipeline project would violate federal EPA approved water quality standards under the Clean Water Act.

With a little creative lawyering, if DEP wanted to kill the pipeline, DEP could connect these regulatory dots.

But instead DEP merely mentioned a storm water General Permit (GP) – that regulatory requirements could be used to attack the pipeline for failure to demonstrate compliance with the C1 “existing water quality” standard in the SWQS (NJAC 7:9B) as required by the storm water management rules (NJAC 7:8-5.5(h).

The GP (5G3) is issued pursuant to the NJPDES storm water rules (NJAC 7:14A). Those rules require compliance with the design and performance standards of the storm water management rules (NJAC 7:8) – dots are connected.

What this means is that DEP is just blowing smoke – posturing to make it look like they are being tough. This letter and all the technical issues it raises are largely irrelevant from the perspective of whether they can be used to kill the project.

Finally, I know that some might argue that the DEP’s technical requirements in the FERC letter will delay the project and create regulatory uncertainty.

A recent gas industry consultant’s “Strategic Report” – actually just a survey of the gas industry – found that delays and regulatory uncertainty were the biggest hurdles the industry felt it faced.

This consultant’s Report was not hacked by Anonymous or leaked by an industry whistleblower to Wikileaks.

Just use your head: Do you really think a gas industry consultant is going to write a public report that shows activists how to kill the gas industry?

Ironically, regulatory delays might actually BENEFIT the industry right now – they provide a legal defense from meeting contract commitments and allow industry to avoid making financing decisions until the gas markets improve – i.e higher prices and demand.

If the industry had to finance projects right now and make go/no go decisions, they would be cancelled, just like Shell did with Arctic drilling.

Those that delay gas projects, ironically, may be helping the gas industry through a period of low prices and slack demand.

[Update – I am getting a question about whether NJ wetlands laws could block the pipeline.

First of all, there are federally delegated wetlands and State wetlands issues. NJ Freshwater Wetlands law is preempted. Only federal requirements are relevant to the question.

Second, there are no water quality standards for federally regulated wetlands – or state delegated wetlands – upon which a denial could be based.

Third, wetlands laws set up an avoidance, minimization and mitigation scheme. This does not support a denial.

Fourth, throughout DEP’s entire letter, the concept of mitigation and compensation are stressed – this is not an approach that seeks to deny permits.

All DEP is seeking to do is the big shakedown: force PennEast to pony up mitigation and compensation money in exchange for approval – along with that required by State House Commission for state lands leases and diversion.

It reeks!

Finally, let me add that some are glomming on to the fact that DEP noted State land use permit requirements for a “demonstration of need”.

FERC requires a demonstration of need, so any parallel and inconsistent state requirements are preempted. BPU would be the entity to regulate this anyway. And they don’t, even for intrastate pipelines.

Second, the DEP demonstration of need requirements flow from State land use laws – they are preempted.

Last, energy infrastructure need are totally unrelated to DEP land use laws and environmental laws and DEP has no authority or expertise to weigh in on energy need demonstrations which are not related to wetlands issues. Final straw in preemption.

[End note – and to make matters worse, on top of the preemption issue, almost all of the State DEP permits and approvals merely require mitigation and compensation – that’s very different than a pert denial. DEP is very unlikely to deny any permit and they don’t appear to be even trying to do so, but we’re still in FERC EIS stage.]

USGS Study On Nitrate Levels In Highlands Groundwater Highly Suspect

With huge unfunded needs, why would USGS and DEP focus on nitrate levels in the Highlands?

As the nation’s most densely populated and developed state, the home of petrochemical and pharmaceutical manufacturing and a legacy of toxic industrial pollution, with thousands of miles of streams, hundreds of lakes, ecologically rich bays, and a 128 mile shoreline, NJ has serious water resource challenges.

Response to those challenges requires good data and science.

But there are a host of unmet scientific research and data collection needs to address these kind of high priority critical problems:

• State DEP officials don’t know how much water NJ has available for water supply; how much will be needed to meet future demands; how climate change will impact supply and demand; and how much water can safely used without harming aquatic life.
• DEP has not updated – as legally mandated every 5 years – the NJ Water Supply Plan for decades. The data in the plan is 30 years old.
• NJ DEP promised to develop watershed specific water budgets 20 years ago.
• NJ DEP promised to adopt what are known as “eco-flow goals” to restrict human uses of water to protect aquatic ecosystems 20 years ago.
• USGS has found over 500 unregulated chemicals in our drinking water supply sources. There is little human health or ecological effects information on these chemicals. Treatment systems to reduce the discharge and remove them are not required or fully understood.
• Over 75% of NJ waterways are impaired and do not meet Clean Water Act fishable and swimmable goals.
• The Barnegat Bay is on the verge of ecological collapse.
• USGS, DEP and the Pinelands Commission began research on the ecological impacts of water withdrawals in the Pinelands 15 years ago – regulatory protections still are not in place.
• NJ DEP lacks current flood maps – many are 30 years old.
• The projected water resource impacts of climate change are poorly understood.
• Surface and groundwater hydrology  monitoring networks are not adequate and lack stable funding.
• Ambient biological monitoring of lakes and streams is inadequate.
• Marine monitoring, fisheries, and ecosystem science is limited and poorly understood.

The lack of current data and good science is limiting action on all of those issues.

So, with all these and other competing needs that lack funding, why would USGS and DEP focus on nitrate levels in the Highlands? See:

Median Nitrate Concentrations in Groundwater in the New Jersey Highlands Region Estimated Using Regression Models and Land-Surface Characteristics

Let me explain why very briefly:

The DEP Highlands regulations have  strict septic density standards that are based on background nitrate levels in groundwater: one is 88 acre lot sizes in forested areas.

These regulations severely restrict development potential.

Property owners and developers strongly oppose these science based and legally valid restrictions.

The builders failed to kill these standards in legal challenges in the courts and political challenges in the Legislature.

So, they have convinced Gov. Christie’s DEP Commissioner to gut the protections via DEP regulations.

But DEP needs a scientific basis to gut the regulations.

That’s why USGS is studying the problem – they are being used.

USGS can’t be that naive and stupid, can they?

DEP Commissioner Martin tried the same stunt in tasking his hand picked pet Science Advisory Board to review DEP’s Nitrate Dilution Model.

He’s now doing the same thing with USGS, and just in time for gutting the DEP Highlands Act rules, which expire on December 31, 2015 (just in time for the Highlands Council to Update the Regional Master Plan)

Can he get away with this scheme?

[Update:  11/2/15 – read Chris Hedges’ superb eulogy for Wolin:

• Sheldon Wolin and Inverted Totalitarianism  ~~~ end update]

Princeton University Professor and political theorist of democracy Sheldon Wolin died last week – you can read his obituary by Princeton University here.

My sense is that you will read nothing of Wolin’s work in the main stream news media and there certainly won’t be any Hollywood movies about his “beautiful mind“.

Wolin was an insightful analyst and powerful critic of how corporations and media undermine and hollow out our democracy and subvert democratic principle and politics.

I just recently became aware of Wolin’s work after reading his last book in 2008, the magnificent “Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism.”

From what I’ve read since, particularly by Chris Hedges, I’ve learned more about the importance of Wolin’s work – which I unfortunately had missed in my limited formal education.

The lack of a shared analysis or understanding of ideas in political economy, political theory, and the nature of power are some of the biggest shortcomings of various “progressive” or “left” groups, including environmentalists.

My favorite writer plowing these fields is David Harvey, a “public intellectual” and academic who describes his approach as that of a practicing historical, spatial, materialist.

I certainly am no theorist and lack training or deep knowledge of political theory, so I rarely even attempt to write about such topics.

But, as a dilettante, I enjoy reading intellectual history and political economy and tracing the interaction of theory and ideas on the more mundane day to day practice of politics and public policy.

As such, I’ve tried to incorporate Wolin’s ideas in my work – in fact, this blog’s launch post cited Wolin’s book as one of the reasons why I was trying to write:

I will focus primarily on environmental issues, not only because I love the natural world, but because the same forces that are destroying the environment also are responsible for our current accelerating economic and political collapse.

Hopefully, I will remain too controversial for the Star Ledger. And perhaps someday we all will recall that I.F. Stone famously said, “all governments lie“. Yet our media institutions have lost touch with that fundamental truth and not only fail to hold government accountable, but often accept government spin at face value, which then becomes the dominant narrative (conventional wisdom, or propaganda) .

But, lets not blame government per se. Scratch the surface of almost any government lie and you find a cover for corporate power and economic interests.

As political scientist Sheldon Wolin wrote in “Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism” (excellent review here), our democratic institutions have been hijacked by corporate interests and our Republic transformed to a global empire.

Not many academics are left standing that write about such topics and so bravely confront power. And fewer still enter the policy debate as “public intellectuals”. So, Wolin is deeply missed in both those regards.

A quick search shows I cited Wolin’s work in the following posts:

• Legislative Ethics Committee Investigation Of Assemblyman Fiocchi Raises Major Issues

• Taming Democracy: The People, the Founders, and the Troubled Ending of the American Revolution

• Vapid Sound Bites Proliferate As We Surrender Democracy To Corporate Oligarchs

• 2013: The Circle Has Closed

• Christie Just The Latest Installment of Corporate Backlash