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The “Regulatory Prelude” Continues – For Over 15 Years

Little Transparency Or Scrutiny Of Critical DEP Climate Regulations

All signs point to a massive DEP failure to regulate greenhouse gas emissions

I want to make a few important points on the media’s coverage of the Murphy DEP’s release this week of the Climate Science Report and the over the top DEP press release (check out the rhetoric and screaming headlines!)

(the only good news is that at least this press release didn’t include gushing praise quotes from the sycophantic fake green cheerleaders DEP funds. Notably absent are Ed Potosnak, Doug O’Malley, Tom Gilbert, Tim Dillingham, Eric Stiles, Jim Waltman, & Amy Goldsmith! Perhaps they heard my criticism about unethical conflicts of interest? I’ll take credit.)

Taken together, they provide very troubling signals for the upcoming regulatory package Gov. Murphy has dubbed “PACT” – for “Protecting Against Climate Threats”.

For those that don’t know me, for 13 years as a DEP policy planner, I worked with Governors’ Offices (Kean, Florio, McGreevey) and DEP Commissioners from the inside on developing policy, writing regulations, representing DEP before the legislature, and drafting the spin in DEP press releases. I was forced out as a whistleblower and then spent 20+ years as an advocate in the ENGO community. So I know exactly how the game is played and where the skeletons are buried – what they want you to know and what they want to hide and obscure. So I hope you will read this entire post, including hitting the links to verify my claims.

I have to limit my comments to the media coverage and Gov. Murphy’s Executive Order for now, because the link to the Report will not open on my computer. Perhaps because the link is not working, or because the Report is a large document, or because my internet connection is too slow to open it up. Hit the link above and try for yourself.

1. The Context and History Are Missing

The Report was prompted by Governor Murphy’s Executive Order #100:

2. DEP Commissioner McCabe misrepresented the purpose of the Report

As I noted, the Report was prompted by Gov. Murphy’s Executive Order #100.

The primary stated objectives of the Report, under the GWRA and the EO 100, are to present to the public and scientific community and provide the scientific basis of the DEP climate regulations Gov. Murphy called “PACT” – “Protecting Against Climate Threats”.

But DEP Commissioner McCabe not only ignored the actual purpose of the Report, she shifted the focus away from DEP’s obligations to adopt regulations and instead to the actions of individuals.She also narrowed the scope to “adaptation”, virtually ignoring the need for DEP to adopt regulatory mandates on GHG emissions reductions: (DEP press release quotes McCabe):

“As our climate continues to change, it is urgent that New Jerseyans understand what future impacts are likely to occur, and when. Together, we can plan for and adapt to those changes, helping one another to keep our communities safe and our economy strong. This report provides the information necessary to focus New Jersey’s strategic climate resilience planning initiatives while we work to modernize our environmental regulations, making them more responsive to these climate realities.”

Did you get that? Let me put a finer point on it:

• We are experiencing catastrophic climate impacts now – emphasis on the “future” contradicts emergency timeframes (e.g. according to the overwhelming scientific consensus (i.e. the IPCC Special Report), we have about 10 years to make deep emissions reductions in order to avoid catastrophic irreversible effects) and current and future catastrophic impacts are masked by the use of the term “climate change” .
• The DEP’s “organic” legislation and the NJ GWRA do not direct DEP to “keep our economy strong”. There is no legal basis for this economic policy. As we’ve written, continued economic growth wipes out any emissions reductions associated with energy efficiency and renewables.
• The “information” is supposed to provide the basis for DEP regulation and to promote public support for those regulations
• “Resilience planning” is only one part – the bigger part is emissions reductions, which McCabe totally ignores!

3. DEP is falsely claiming that this is the “first” DEP Climate Science Report

The press has emphasized this Report as “the first” ever. But that’s not true.

DEP “resilience” head Dave Rosenblatt (who worked closely with Christie’s “Sandy Czar“ and played a role in Christie’s Bridge-gate scandal) spins this line too: (NJ Spotlight)

“If you’ve been reading every report that comes out, you will see it as a summary of what’s already available,” said David Rosenblatt, the state’s chief resilience officer. “But for the first time in one place, New Jersey has put out the science that it is going to respond to.”

That’s just an historical whitewash. Here are the facts.

Prior to the passage of the GWRA, back in 2003-2004, DEP summarized the then current climate science  in two regulatory proposals.

In the first regulation, adopted 2005, DEP Commissioner Brad Campbell adopted regulations that defined GHG’s as “air contaminants” pursuant to the NJ Air Pollution Control Act. This legal basis anticipated the groundbreaking US Supreme Court’s decision in the Massachusetts case that required that EPA make a “finding” and regulate GHG’s.

However, a later Rutgers’ Report noted that these 2005 rules did not regulate GHG emissions – just the opposite, contrary to media and public understanding, DEP exempted them from regulation! Here’s Rutgers’ explanation of that sellout:

DEP wrote this in the second rule proposal, to explain why they deregulated GHG emissions – it was all just a “regulatory prelude”. The Campbell DEP wrote:

So, legally, NJ has been in “regulatory prelude” for over 15 years.

Despite this shameful 13 year history – DEP did actually issue a “draft” of the Report required by the GWRA – the Murphy DEP is falsely claiming that the current Report is the “first” ever.

This is nonsense.

And is serves to perpetuate the false narrative that Gov. Murphy is a leader on climate.

Similarly, in an effort to create the false impression of the Murphy “breaking new ground”, DEP Chief of Staff LaTourette is whitewashing all this history and made this egregiously false historical claim to NJ Spotlight:

DEP Chief of Staff Sean La Tourette said existing land-use regulation, as currently being reviewed by the department, is no longer suited to current environmental conditions.

“If we are confronted with rising sea levels and chronic inundation, we should not confine ourselves to regulating what and where we build by rules that we made 30 years ago,” he said. “We need to make rules that govern us far into the future.”

Mr. LaTourette is either incompetent or a liar.

The current DEP land use, water, and flood/stormwater rules are not 30 years old. The DEP’s land use and certain water resource rules were comprehensively “aligned” (code for rollback) by the Christie DEP just 3 years ago.  Even more recently, in addition to Christie rollbacks, the Murphy DEP just weakened them LAST YEAR! LaTourette doesn’t want to talk about that, so he makes shit up. See the: FEMA Flays Murphy DEP Stormwater Proposal

4. The DEP is echoing the gas industry’s claims

According to the Philadelphia Inquirer story, the DEP Report says:

“transition from coal-fired power plants to natural gas has led to a reduction in greenhouse gases in the US”

That is highly misleading, lacking in scientific support and consensus,  and I would argue outright false.

(This is not an inadvertent or small error. The exact same gas industry propaganda and lies crept into the Murphy BPU Energy Master Plan and form the basis of the Murphy NJ Transit $500 million fossil boondoggle and are implicit in the Murphy billion dollar wind expansion – these are no small matters when you consider all the gas infrastructure projects now before DEP and the call by environmentalists for a fossil infrastructure moratorium. These lies can provide cover for the Gov.)

I sent this note to Inquirer reporter Frank Kummer to explain:

Hi Frank – good story. But, FYI, this DEP claim is not even close to a consensus science conclusion:

“But the report found that the transition from coal-fired power plants to natural gas has led to a reduction in greenhouse gases in the U.S.”

There is significant disagreement about this for at least the following reasons:

1) the US GHG emissions inventory accounting does not fully consider the lifecycle emissions of methane from fracking, including fugitive emissions throughout the production, transmission and distribution chain;

2) methane has significantly greater warming potential than CO2, short term it’s more than 80X greater;

3) the transition of power plants from coal to gas has been accompanied by huge US fracked oil and gas production boom. This has led to significant exports of US fossil fuels, oil & gas, including coal exports. A lot of the coal that previously was burned at US power plants is exported. Checkout EIA data for support of that.

The foreign GHG emissions from US exports of coal, oil and gas are NOT considered in this claim of reduction of US emissions – nor are the GHG emissions from the production and transportation of goods that are imported to the US.

Climate change is indifferent to the location of GHG emissions.

So, at best, that is misleading – while I say it is false. The DEP is repeating the gas industry’s arguments – this is hugely significant, because we’re calling for the Gov to impose a moratorium of gas infrastructure. He can hide behind this false claim.

I should have referred Frank to Cornell Professor Ingraffia and provided links to his work on fracking and methane.

5. DEP and media are silent on upcoming regulations

To their credit, the NJ Spotlight story does mention the lack of “policy”, but provides no specificity  on the huge pending DEP regulatory issues.

We need to begin by analyzing Gov. Murphy’s Executive Order #100, which has been falsely praised by environmental groups and misreported by the media.

To illustrate this point, it is instructive to compare the provisions of the EO governing “climate adaptation” with those addressing greenhouse gas emissions reductions (“climate mitigation”).

Gov. Murphy’s Executive Order #100 clearly directs DEP to “integrate” climate adaptation considerations in various specific DEP land use and water resource regulations. DEP shall:

However, with respect climate greenhouse gas emissions reductions, the EO uses very different and vague and misleading language. The emissions reduction (AKA “mitigation”) are not specified, regulations are not specified, and instead vague and legally meaningless terms are used. DEP shall:

I’ve worked on regulatory policy for 35 years and I have no idea what the hell the phrase “Establish criteria that shall govern and reduce emissions” means.

“Criteria” are NOT enforceable standards and regulations.

No specific DEP emission reduction regulations and permits are specified (contrary to the mitigation regulations that are).

So, it really is an open question of exactly how the DEP has interpreted EO #100 and if they will even regulate greenhouse gas emissions or continue to rely on RGGI and the BPU Energy Master Plan.

This set of issues warrant close examination and scrutiny, but is getting none.

Furthermore, DEP is actually erecting barriers to the public’s ability to look inside and participate in DEP’s rule development process, which takes me to my final point.

6. There has been no media coverage of DEP “Stakeholder” process for developing climate regulations – governing emissions reduction and adaptation.

The DEP has a web page for the PACT regulations.

The DEP has held several “Stakeholder” meetings to solicit public input.

The PACT rules are broken down into 3 categories:

• monitoring
• carbon emissions
• adapting land use regulations

Curiously, written Stakeholder comments to DEP are accessible on the monitoring and the adaptation rules, but NOT ON THE CARBON EMISSIONS RULES! 

It would be very interesting to know who is saying what to DEP on these essential core regulations, the ones that are being ignored or downplayed by the Gov.’s Executive Order, DEP Commissioner and even the DEP website!

I’ve already tried to warn about comments from PSE&G that seek a huge waiver – obviously that strategic request is related, among other things, to PSE&G’s development of a wind turbine assembly facility at their nuke site in the Delaware.

How many other favors are being sought and by whom?

What kind of emission reductions is DEP considering? What is the timetable? What sectors, who and what kinds of facilities will be subject to these emissions reductions? Will they be mandatory? Will they allow “offsets”? Carbon capture? Nuke credits?  

Voluntary market incentives and corporate subsidies or strict regulatory mandates?

The people want to know.

We’re heading east across Michigan’s upper peninsula.

It’s been extremely hot and humid, the last 3 days around 95 and humid. Local fishermen and birders I spoke with tell me this is highly unusual, that July days are typically in the 60’s and even have dipped to the 50’s. I haven’t confirmed that, but can confirm that it is HOT and HUMID.

Nights haven’t cooled down, and the skeeters are murder (especially in the places we find to camp, which typically are boat launch sites surrounded by water.)

Last night we found an excellent place in Rapid River, Michigan at a pretty  isolated boat launch on the Little Bay de Noc on Lake Michigan. Gorgeous! I figured we could spend several days here, despite the pretty intense skeeters (many beers and bug spray solved that problem).

But, just after dark, assholes showed up with fireworks, that totally freaked out my dog!

So we left mid morning today.

After our morning walk, breakfast, and coffee, by 10 am, it was already hot.

I gave Bouy one more swim to cool down and headed out along Route 2 eastbound.

Tons of traffic, mostly headed west. As we go further east, it got more and more touristy and second home development. Bad driving and a bad signs for finding a good stealth spot for overnight camping.

After a few stops along the way to get the dog in the water and cool him down from the heat, by 3 pm, I was tired and looking for a place to park for the night.

After a few failed attempts on forest and local roads, as I was driving by an old abandoned gas station, I notice that it had an old rusted out Skoolie parked in the lot.

So, I figured that old bus needed company and pulled in right next to it!

Hope I live to see the sun rise –

The dude who owns the place has a large “Locked and Loaded” poster on the window, and the grass is freshly mown. But I figured the odds of someone coming by on Friday night on a 4th of July weekend were slim. Ditto for the cops and my bus blends in with the other one already there.

Perhaps my boldest stealth camping maneuver ever!

Happy Fourth of July – Freedom and USA! USA! USA! all the way, baby! (snark)

 

The Theft Of State Parks Funding Has Become The Pretext For Privatization 

[Important Update below]

There has been swift public and press outrage over a stealth provision in the emergency COVID budget that mandates that DEP “shall” solicit privatization proposals for all State Parks, including the crown jewel Liberty State Park, where billionaire Paul Fireman is seeking to expand a golf course into LSP lands.

Yesterday, the NY Times ran a killer story, that amounts to a huge national embarrassment for NJ Gov. Murphy, see:

• Buried in N.J.’s Budget Cuts: a Break for a Billionaire –   A stopgap budget with $4 billion in cuts also includes an opening for private development in state parks, like a long-desired expansion of a golf course into Liberty State Park.

Today, the Star Ledger editorial board followed up to flat out condemn Gov. Murphy, Trenton legislators and lobbyists for billionaire’s, see:

• Murphy and his golf cronies have Liberty State Park in their crosshairs.

  Today, the 21 acres of Caven Point is a sanctuary for migratory birds, a pristine place where New Jerseyans gather to catch a glimpse of the peregrine falcon, the yellow-crowned night-heron, or the snowy owl.

  But because Gov. Murphy has decided to collaborate with plutocrats who believe that the public interest can be sold, this corner of Liberty State Park may soon be populated by — mirabile visu! —hideously-dressed millionaires clutching their 3-irons and whacking their double bogeys.

But, in contrast to other harsh coverage, NJ Spotlight ran a typically tepid piece of he said/she said bullshit, that provided a platform for Gov. Murphy’s office to spin, deny and dodge accountability for an egregious betrayal of the public.

It’s hard to know where to begin in correcting the spin, half truths and lies (by omission) in that Spotlight story, so let’s start from the totally misleading primary premise.

The sole justification for privatization and commercialization of State Parks is that current State budget revenues are inadequate to fund a huge deficit in State Parks maintenance.

Spotlight bemoans that fact with this bullshit lie:

The provision, buried in a 110-page bill that many lawmakers never noticed, is reigniting a long-running dispute over how the state can both maintain and invest in its extensive park system, which has suffered years of funding neglect, in the wake of recurring budget crises.

While it is correct that State Parks have a huge unfunded maintenance backlog and are not adequately funded by the State budget, the cause of the deficit has been ignored.

NJ Spotlight reporter Tom Johnson knows why the deficit was caused. Tom knows that the voters of NJ approved an amendment to the NJ Constitution to dedicate hundreds of millions of dollars to fund this maintenance deficit. He knows that his fellow foundation funded friends at the Keep It Green Coalition ran a $1 million PR campaign to dupe the public into stealing this money and diverting it to open space.

Tom knows all that.

But he not only fails to report it to explain the “years of funding neglect”, he outright intentionally misled readers about it.

So, let me be clear: The cause of the deficit is the fact that hundreds of millions of dollars of previously Constitutionally dedicated State Parks maintenance money was stolen and diverted to the Open Space program, see:

• Head of NJ State Parks Service Calls Damage From Open Space Diversion “Worse than Sandy”

NJ Spotlight outright lies about this, both by omission and commission.

First, they distort the funding deficit issue, by implying that it is caused by the huge revenue declines caused by COVID, and they do that right up front, at the outset, in the he said/she said sub-headline of the story:

Administration says ‘no,’ but paragraph buried in 110-page budget extension suggests that private developers could help counterbalance some COVID-19 deficits

The budget language says NOTHING about any objective to “counterbalance COVID-19 deficits”.

That was totally made up by Tom Johnson, and it was done for a reason.

That reason is: if the State Parks maintenance funding deficits were caused by COVID-19, then the real cause of the deficits remains obscured.

Tom Johnson seeks to obscure the real cause of the deficits because if the real cause were widely known, it would expose his schlock reporting in failing to write about the impacts of the diversion of State Parks maintenance funding to the open space program.

Tom Johnson seeks to obscure the real cause of the deficits because if the real cause were known, it would embarrass and humiliate and expose the venality of his friends in the Keep It Green Coalition, who successfully advocated for the diversion of Parks funding that has harmed the parks and become the justification of privatization.

If the real cause of the deficit were known, then those huge NJ Foundations – Dodge, Fund For NJ, Wm. Penn – who funded the Keep It Green Coalition $1 million PR campaign to steal State Parks funding would be exposed as the elite frauds and hypocrites that they are – including their Neoliberal ideologies about elevating private and corporate interests over public goods, the public commons, and the public interest.

If the real cause of the deficit were known, then the Governor and legislators would have no cover story and pretext to hide their efforts to reward their billionaire donors by privatizing public assets.

(of course, they could also raise taxes on the rich and corporations, but that option is not even on the table, which just proves that Murphy & his Dems are really Neoliberals.)

That’s what’s really going on here.

And that’s the danger of the corrupt self serving frauds who parade around under “Keep It Green” banners and faux notions of progressive public interest journalism. 

Let’s hope that their greedy over-reach triggers a backlash that results in the passage of the Liberty State park protection act, the abolition of privatization of all State Parks and State lands, and the defunding and public shaming of the elite hypocritical Foundations and faux “conservation” groups of the Keep It Green coalition.

[End Note: And if it wasn’t for the diligence of Jeff Tittel of Sierra Club – who has criticized prior Murphy privatization schemes and exposed this latest one – this may have passed under the radar. Kudos also to LSP champion Sam Pesin.

Also Note that all the Keep It Green Coalition groups I criticize above have done NOTHING on this issue or mumbled a word of criticism of Gov. Murphy. That silence speaks volumes. They are corrupt and in the tank for Murphy.]

[Update: Wow! A NJ reader just sent me this story, which illustrates that this privatization scheme was totally consistent with former Wall Streeter Gov. Murphy’s prior scheme to “monetize” “undervalued” State assets, including State Parks – here’s the story, reported by NJ Spotlight, but not by reporter Tom Johnson:

• NJ Seeks Advisor For Potential Deals Involving State Assets

Like I said, this is worse than Christie’s park revenue/privatization schemes.

Failure to hold the Dems accountable to  betrayals and sellouts like this is what led to Trump.

Liberty State Park Highly Vulnerable to Private Development

NJ Gov. Murphy signed an emergency COVID budget that includes a provision that could lead to private development and commercialization of State Parks, including the controversial proposed development of Liberty State Park.

It remains unclear exactly how the privatization language was stealthed into the budget by lobbyists, but it was approved by the Governor’s Office, over the objection of several legislators and park advocates.

Here is the language, as in the adopted emergency budget law the Gov. just signed (@ page 95)

Once again, Murphy Spin In Conflict With Science

EJ Communities Had No Knowledge Of Or Role In DEP Revision Process

[Update below]

While Gov. Murphy and his environmental cheerleaders are congratulating themselves over their proposed environmental justice legislation (which relies exclusively on individual DEP permit reviews), the Murphy DEP just revised and updated air pollution cancer and health risk screening levels that form the basis for air pollution permit reviews and pollution control requirements, and thus will have a huge impact on environmental justice communities.

The revisions were made to the DEP’s technical protocols for conducting risk assessments as part of the air pollution permit review process. They are based largely on federal EPA’s Integrated Risk Information System (IRIS), not NJ specific conditions or DEP scientists’ recommendations.

As far as I can tell, while there was considerable involvement by industry experts in DEP’s process for making these revisions, there was little or no involvement by the public, health experts, and the environmental justice and environmental communities. In addition to the industrial stakeholder process, just look at who provided comments to DEP on the risk screening document and who DEP is giving an inside track and heads up and responding to (source, see: DEP reply to industry comments):

Here is the DEP document, with DEP’s explanation:

REVISIONS TO THE NJDEP/DAQ INHALATION TOXICITY VALUES AND THE RISK SCREENING WORKSHEET (June 2020)

The NJDEP Division of Air Quality list of inhalation toxicity values and the risk screening worksheet have been updated.

Specific changes to the unit risk factors (URFs), long-term reference concentrations (RfCs), and short- term RfCs are noted below. The revisions are incorporated into the list of “Toxicity Values for Inhalation Exposure,” dated June 2020.

Let me first put that DEP document in context.

Air pollution is perhaps the single largest source of adverse public health impacts and risks to overburdened poor and/or minority communities, particularly in urban locations. Residents are chronically exposed to hundreds of individual chemical air pollutants from multiple concentrated sources of pollution (industry, cars, trucks, garbage incinerators, sewage treatment plants, aircraft, ships, etc).

People are exposed to not only air pollution, but multiple other sources and routes of exposure, including water pollution, workplace exposures, food contaminants, and risks from solid and hazardous waste facilities and toxic sites.

The health risks from these exposures are exacerbated by other socio-economic and land use factors, such as poverty, lack of healthcare, lack of access to fresh foods & vegetables (“food deserts”), lack of access to open spaces, exercise and recreational opportunities, and other health stressors, from noise and “heat islands” to structural and individual racism.

These health impacts, risks from pollution and socio-economic factors are disproportionately concentrated in poor and minority communities.

This phenomenon is what has given rise to the environmental justice movement.

With that in mind, and at a time when the Governor himself is touting his concerns about environmental justice, it is remarkable that the DEP’s revisions ignore the key scientific aspects of cancer risks to urban environmental justice communities, which are:

1) people’s exposure to multiple individual cancer causing air pollutants from current background pollution levels;

2) the cumulative impacts of multiple exposure pathways to multiple individual pollutants, and

3) the existing actual health conditions and susceptibility and vulnerability of the exposed population.

In addition to these significant gaps and flaws, the DEP science, risk screening revisions, and overall policy do not address what public health advocates call the “precautionary principle“, which is:

The precautionary principle, proposed as a new guideline in environmental decision making, has four central components: taking preventive action in the face of uncertainty; shifting the burden of proof to the proponents of an activity; exploring a wide range of alternatives to possibly harmful actions; and increasing public participation in decision making.

As we can see, in addition to ignoring environmental justice, the DEP fails all four prongs of the precautionary principle.

Industrial stakeholders themselves exposed the fraud of the DEP screening process. In their own words, DEP rarely imposes additional pollution controls to protect public health: (see comments #2 and #5, by NJBIA & an industry consultant)

We need real reforms – not token symbolic gestures by the Governor and cheerleading by his sycophants in the “environmental community”.

[Update – Intro: We hope we are not guilty of not providing adequate context:

Disparity figures without explanatory context can perpetuate harmful myths and misunderstandings that actually undermine the goal of eliminating health inequities. Such clarifying perspective is required not just for Covid-19 but also for future epidemics. […]

First, data in a vacuum can give rise to biologic explanations for racial health disparities. Such explanations posit that congenital qualities unique to specific racial minorities predispose them to higher rates of a particular disease. […]

Second, lone disparity figures can give rise to explanations grounded in racial stereotypes about behavioral patterns. […]

Third, geographic disaggregation of Covid-19 data is welcome but requires caution ….

In sum, to mitigate myths of racial biology, behavioral explanations predicated on racial stereotypes, and territorial stigmatization, Covid-19 disparities should be situated in the context of material resource deprivation caused by low SES, chronic stress brought on by racial discrimination, or place-based risk. (read the entire article) ~~~ end update]