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Governor Murphy and the Legislature Are Not Serious On Climate Catastrophe

• It was not the Department’s intent to establish CO2 emissions permitting and regulatory requirements through the proposed amendments. The Department has modified the rules on adoption to except CO2 from existing air pollution regulatory and reporting requirements. ~~~ NJ DEP, 2005

I preface this post with the DEP statement above to illustrate what would actually need to get done if the Governor and Legislature were serious about actually achieving reductions in greenhouse gas emissions.

They would have to start with the reality that DEP currently has the statutory authority to regulate greenhouse gas emissions – including methane and so called “short lived pollutants” – and the authority to mandate reductions and to impose meaningful GHG air pollution emissions fees (currently $122/ton – compared to a paltry RGGI allowance price of about $4/ton).

But instead of implementing and enforcing that authority to achieve the legislature’s GHG emissions reduction goals, the DEP explicitly exempted GHG emissions from regulatory requirements and air pollution emissions fees.

But instead of dealing with that reality, the Governor and the Legislature are intentionally denying that reality, misleading the public by creating fake solutions, and the media is knowingly allowing them to do so.

So, we begin with the latest fraud.

Shortly after he attempted to sabotage the campaign to call on Gov. Murphy to impose a moratorium on new fossil infrastructure, Tom Gilbert is now flat out lying about proposed climate legislation and NJ Spotlight is providing a platform for him to do so.

(We’ll jump the gun with this teaser:  do you recall that Chairman Smith initially justified this bill and NJ Spotlight swallowed that and originally reported this bill as “going after methane” and “short lived pollutants”? That was purported to be a big deal. Well, all that methane and short lived pollutant ‘comprehensive strategy” stuff in Section 6 has been quietly deleted from the amended version of the bill just passed by the Senate. In contrast to NJ Spotlight’s stenography, we called BS on that – and a decade of lies – at the outset. That’s why it was not mentioned by NJ Spotlight in today’s story – to do so would validate our criticism. But instead of admitting that they were duped and got it wrong, NJ Spotlight trots out Mike Catania and poses him as a critic. This is cynical and it misleads readers, as we explain below.)

I’ve previously written about the original introduced version of the proposed legislation to explain its flaws (see this and this). The Senate passed an amended version, S3207[2R], see below for the significance of those unreported amendments.

So today I want to drill down on a debate about the amended version of the bill passed by he Senate as reported in today’s NJ Spotlight story to illustrate Gilbert’s lies.

After finally criticizing the actual performance of the Murphy administration in walking the walk on their climate rhetoric about reducing GHG emissions, characterizing the performance record as “setbacks“, NJ Spotlight described the debate on the bill as follows:

The setbacks have drawn notice from New Jersey lawmakers. On Monday, the Senate approved a bill (S-3207) that aims to ensure the state is on target to meet the goals of its original 2007 Global Warming Response Act. It would require the DEP to monitor and report greenhouse-gas emissions, and within a year recommend additional measures to curb pollution to achieve the 2050 goal laid out in the act.

But some say the bill falls short. “This bill is a smoke screen when it comes to dealing with carbon dioxide emissions,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “It does nothing to reduce greenhouse gas emissions.’’

Other environmental advocates were more optimistic. “This is much needed legislation to ensure the state takes meaningful steps to reduce emissions,’’ said Tom Gilbert, campaign director of Rethink Energy NJ.

He cited provisions requiring the DEP to set benchmarks between now and 2050 for curbing carbon pollution and requiring actions to reduce emissions to achieve the targets if monitoring shows the state will fall short.

This is not about “setbacks” – it is about huge failure and consistently misleading the public about that failure.

This is not a question of optimism (Gilbert) versus pessimism (Tittel).

This is about legal, regulatory, and scientific facts. About what the bill actually says.

The “provisions” of the bill that Gilbert cited do NOT “require actions to reduce emissions to achieve targets if monitoring falls short”.

That is a flat out lie.

Here is what the bill actually says in Section 3:

No later than 18 months after the department prepares and transmits the report as required pursuant to subsection c. of section 6 of P.L.2007, c112 (C.26:2C-42), the department shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et  seq.), rules and regulations establishing interim benchmarks necessary to achieve the 2050 limit, and measures necessary to achieve the 2050  limit and the established interim benchmarks.

First of all, the legal and regulatory reality is that the Legislature knows how to use words.

There is a huge body of environmental law loaded with many words that the legislature could use if the legislative intent were to authorize DEP to establish GHG emission limits and enforce them. The legislature chose to ignore all those legal terms of art and the entire body of environmental law and  DEP regulatory frameworks.

The vague term “benchmark” is not a “standard” and by definition is not legally enforceable on any GHG emission source.

The term “Measures” are not GHG “emissions limits“, or GHG “control requirements“, or GHG “efficiency standards” or “building codes” or ZEV, or “state of the art in pollution control” or BACT, MACT, or LAER or any other legal and regulatory definitions or terms of art used for decades in the body of law under the federal Clean Air Act and the NJ Air Pollution Control Act.

These terms apply to no individual GHG emission source or to any GHG emission source category or GHG emission sector. They trigger no DEP permit requirements or ai pollution emission fees.

Just like “benchmarks”, “measures” are NOT enforceable.

DEP can not develop “benchmarks” and identify “measures” and then enforce them based on these provisions.

Gilbert is either ignorant of all this or he is lying. Either way, he should realize that he is in over his head and just shut the fuck up.

Similarly, this section of the bill would amend Section 5 of the 2007 Global Warming Response Act.

Section 5 of the GWRA authorizes DEP to do the following:

• rules and regulations establishing a greenhouse gas emissions monitoring and reporting program to monitor and report Statewide greenhouse gas emissions
• identify all significant sources of Statewide greenhouse gas emissions
• monitoring and reporting of existing emissions and changes in emissions over time from the sources identified by the departments
• reporting the levels of those emissions and changes in those emissions levels annually,
• monitoring progress toward the 2020 limit and the 2050 limit
• require reporting of the greenhouse gas emissions

Statutory authorization by Section 5 of the GWRA for DEP to inventory GHG emission sources and to conduct monitoring and and to require reporting is NOT AUTHORIZATION TO SET ENFORCEABLE STANDARDS AND ENFORCE GHG EMISSIONS REDUCTIONS FROM EMISSION SOURCES.

Finally, NJ Spotlight did not report that the bill was amended on the Senate floor by its sponsor (Chairman Smith) to delete the entire section (Section 6) that addressed the alleged intent of the bill, i.e. to authorize DEP to develop:

a comprehensive strategy to reduce emissions of short-lived climate pollutants in the State.

NJ Spotlight initially reported that as a big deal. Remember they reported about “going after methane”? We called bullshit on that:

NJ Spotlight makes a big deal about the fact that the bill purportedly applies to and “goes after” methane –

Going after methane

Among other things, the bill would require the state Department of Environmental Protection to develop a comprehensive strategy to curb emissions of short-lived climate pollutants, such as methane. Methane, a component in natural gas that often leaks from pipelines, is much more potent that other greenhouse gas pollutants, such as carbon dioxide.

This is false and misleading.

Gilbert and cronies praised that. And Senate Democrats issued a press release touting that.

But we called bullshit on it and obviously have now been vindicated by the deletion of the entire section.

And just like that, the entire original focus and justification for the bill was completely deleted! With no mention of that in the NJ Spotlight coverage.