Gov. Murphy’s “Environmental Justice” Legislation Would Do Nothing To Reduce Current Pollution or Unjust Disproportionate Burdens In Minority Communities

Bill would grandfather existing pollution sources that cause current injustices

“Co-Opaganda”

[Update – the bill was amended to address renewal of permits for certain existing sources, so not all are grandfathered. Read more recent analysis if the version signed into law.]

I need to respond to Gov. Murphy’s Friday afternoon highly misleading press release touting:

• Governor Murphy Announces Support for Key Environmental Justice Legislation

Before I get to the details, let me begin by noting that the timing of the Gov.’s announcement deepens the cynicism and manipulation of his misleading press release.

Some call similar largely symbolic gestures “virtue signaling”, while some use the older phrase “pandering”.

But there’s much more going on here, perhaps best illustrated by the recent PR stunts where police take a knee with Black Lives Matter protesters and literally minutes later violently assault them.

[Update: 6/27/20 – see even worse cynicism in Rhode Island]

During a recent interview on Chris Hedges’ show “On Contact, I heard Glen Ford, editor of Black Agenda Report, refer to such PR stunts as “Co-Opaganda” – a perfectly apt amalgam of “Co-optation” and “propaganda”. Sickeningly, many NJ environmental groups have been co-opted by the Gov.’s propaganda.

[Note – Reading Maureen Dowd’s column just now, and realize I may have mis-heard Mr. Ford. Apparently, the word is “copaganda” – so, I guess I’ll claim ownership of coining “Co-opaganda!]

Here’s why Gov. Murphy’s press release is misleading and manipulative.

The bill would grandfather existing sources of current pollution levels that are causing disproportionate burdens in NJ’s minority communities.

Could you imagine the response to a politician who supported a “Defund the police” policy, but then defined that to apply ONLY to reducing the rate of increase of future police budgets?

Well, that is what Gov. Murphy is calling for in his “Co-Opaganda” stunt.

The Senate Committee substitute bill (S232[SCS]) grandfathers existing pollution from current polluters and the existing disproportionate burdens on poor and minority communities in a subtle and technical way – of course legislators and the Governor could not just come right out and say this is what they were doing. They have to do it in the fine print (note: the original Senate bill, S-1150, sponsored by Senator Weinberg way back in 2014, applied to DEP “permits” (which include permit renewals), and not limited to “new or expanded” permits. I wrote about that bill in this post.

The media rarely reads the fine print and the Gov. has co-opted the environmental cheerleaders – who have failed for years – so this crap often works.

Here’s how they do it: the bill would limit DEP’s authority to act upon an “environmental justice impact statement”, by denying a permit or imposing additional conditions in a permit only for “new or expanded” facilities. Here’s the text, from Section 3. c. (at page 4-5)

the department may, after review of the environmental justice impact statement prepared pursuant to paragraph (1) of subsection a. of this section and any other relevant information, including testimony and written comments received at the public hearing, deny a permit application for a new or expanded facility located in whole or in part in an overburdened community, upon a finding that approval of the permit application would, together with the cumulative environmental or public health stressors posed by existing conditions located in or affecting the overburdened community, result in a disproportionate impact to the overburdened community when compared to the impact and risk born by other communities in the State.

So there it is.

DEP’s powers are limited to “new or expanded” “facilities”.

That means the renewal of DEP permits for existing polluters are grandfathered. The Newark incinerator – and all the rest of the polluters – can keep on polluting. The bill will not affect their current permit or renewals of them.

This grandfathering also holds for all those toxic sites, whose flawed and weak and privatized “cleanup” plans have already been approved by DEP – which  like all those current air and water pollution and solid waste facility permits – were all approved with no consideration of cumulative impacts or disproportionate burdens (and toxic sites are not even “facilities” as defined in the bill).

This takes us to the definition of “facility”.

The DEP’s ability to consider and reduce unjust “disproportionate impacts” is limited to “certain permits” DEP issues to “certain facilities” (beware weasel words like “certain“).

Here’s how Gov. Murphy’s press release mentions but does not explain that:

TRENTON – Standing alongside Senator Troy Singleton, Assemblyman John McKeon, and environmental advocates Kim Gaddy, Dr. Nicky Sheats, and Dr. Ana Baptiste, Governor Phil Murphy today announced his support for key environmental justice legislation for overburdened communities. The legislation (S232) requires the New Jersey Department of Environmental Protection to evaluate environmental and public health impacts of certain facilities on overburdened communities when reviewing certain permit applications.

This gets us to the question of how DEP is going to regulate impacts from a single facility, in light of the “cumulative impacts” of surrounding facilities, including mobile sources (cars and truck) and toxic sites, all of which are not regulated “facilities” (and there are very, very few “new or expanded” facilities that might even be regulated by the bill).

There are currently no DEP or US EPA approved scientific methods, regulations or enforceable standards for doing this kind of analysis (multiple pollution sources, multiple pollutants, and pre-existing health and socio-economic conditions present in the community).

Even worse, DEP political mangers have actually acted to block the development of cumulative risk science and regulatory methods.

As US District Court Judge Orlofsky wrote, over 18 years ago – and despite Executive Orders, DEP press releases, and hundreds of hours of meetings and discussions with certain environmental justice activist over many years – nothing’s changed since then:

As described in greater detail in this Court’s Findings of Fact and Conclusions of Law set forth below, the NJDEP granted the necessary air permits to SLC to allow its proposed facility to begin operations. In doing so, the NJDEP considered only whether the facility’s emissions would exceed technical emissions standards for specific pollutants, especially dust. Indeed, much of what this case is about is what the NJDEP failed to consider. It did not consider the level of ozone generated by the truck traffic to and from the SLC facility, notwithstanding the fact that the Waterfront South community is not currently in compliance with the National Ambient Air Quality Standard (“NAAQS”) established by the EPA for ozone levels, nor did it consider the presence of many other pollutants in Waterfront South. It did not consider the pre-existing poor health of the residents of Waterfront South, nor did it consider the cumulative environmental burden already borne by this impoverished community. Finally, and perhaps most importantly, the NJDEP failed to consider the racial and ethnic composition of the population of Waterfront South.

Aside from a parenthetical allusion to asthma and elevated blood lead levels, that bill does not authorize DEP to “consider the pre-existing poor health of the residents”.

Obviously, any “new or expanded” facility subject to any new regulations by DEP would strongly oppose them and file lawsuits to block them. Thus, the vague policies in the bill are very unlikely to be translated into the necessary future enforceable standards and regulations by DEP.

It’s been over 18 years since Judge Orlofsky excoriated DEP’s regulatory failures and yet DEP has done nothing to remedy the flaws he found. The bill Gov. Murphy touts directs that DEP “shall” adopt regulations, but provides no deadline to do so. So, we can expect many more years of DEP foot dragging, as they engage corporate “stakeholders” in endless rule development meetings.

Regardless of all these legal and scientific flaws, current asthma and high blood levels in poor and minority communities are caused by current pollution sources and cumulative pollution levels, all of which are grandfathered and not addressed by the bill!

EJ activist (co-opted Murphy cheerleader) and Newark mom Kim Gaddy doesn’t seem to understand this (here’s Gaddy’s quote in Gov. Murphy’s press release):

“As we celebrate Juneteenth today and the freedom of Black people, it is necessary to free residents in front line communities, like mine, from the environmental and related health injustices we suffer each and every day,” stated Kim Gaddy, Newark resident and Environmental Justice Organizer, Clean Water Action. “All three of my children are asthmatic and if S232 becomes law as written, the state will have the power to ‘just say no more’ polluting facilities in my neighborhood. Governor Murphy and Senator Singleton are not just demonstrating their commitment to S232, but building momentum for its passage, bringing us that much closer to having the strongest EJ law in the nation. Environmental justice communities like mine have suffered for far too long because of the zip code we live in.”

Just say “NO”? Or just say “NO MORE”?

Defund the police? Or reduce the rate of increase in future budgets?

Obviously, Ms. Gaddy does not understand the legislation (or is spinning). The pollution that causes or contributes to her kids’ asthma is grandfathered – i.e.not regulated by – the bill.

So, it’s a cruel and dishonest joke to dupe black mothers in Newark into thinking that this legislation would alleviate harms to their children caused by pollution.

And some readers here may recall that last year’s original introduced version of the bill included a local veto of bad projects. That veto has been eliminated. The bill was gutted.

Finally, the bill says and does nothing about climate crisis, energy, or greenhouse gas emissions.

And that adds insult to the injustice.

[End Note: A knowledgeable reader sent me a detailed note, blasting the corruption of the environmental justice advocates (funded by Dodge, Hess, PSE&G, and Covanta (Newark garbage incinerator) and loyal to Cory Booker and Joe D.’s Essex County machine, while slamming Ms. Gaddy as a hypocrite progressive poser who supports charter schools and sends her kids to private schools.

I’ve previously written about most of that (e.g. see: If You Can’t Beat ’em Buy ’em) and don’t go for personal attacks, so in response, here’s a justice oriented view of charter schools for Ms. Gaddy, by Cornell Professor Noliwe Rooks).