WolfeNotes.com

Under-design – based on lax regulatory standards & cost considerations – can kill

Who will tell the people about this looming disastrous DEP decision?

In completing its draft report earlier this year, the Corps turned down a request by state and local officials to consider increasing protection to at least a 200-year level, or to a 500-year level of protection. It wasn’t justified, officials said.

“While the 200-year level of risk reduction alternative was competitive, its net [economic] benefits were lower than that of the 100-year level of risk reduction,” said Ricky Boyett, a Corps spokesperson. “Because of the lower net benefits, the 200-year level of risk reduction was not selected as the recommended plan.”

Such a cost-benefit analysis is part of a federal standard that compares reductions in property damages, emergency costs and the avoidance of economic losses from flooding against construction costs. (NoLA.com)

In yesterday’s post, in order to illustrate and draw a parallel between what is happening in NJ and what already occurred in New Orleans, I excerpted a key 2019 finding by the US Army Corps of Engineers from the Federal Register.

The astonishing USACOE finding was explained by Scientific American:

After a $14-Billion Upgrade, New Orleans’ Levees Are Sinking 

Sea-level rise and ground subsidence will render the flood barriers inadequate in just four years

The $14 billion network of levees and floodwalls that was built to protect greater New Orleans after Hurricane Katrina was a seemingly invincible bulwark against flooding.

But now, 11 months after the Army Corps of Engineers completed one of the largest public works projects in world history, the agency says the system will stop providing adequate protection in as little as four years because of rising sea levels and shrinking levees. […]

The agency’s projection that the system will “no longer provide [required] risk reduction as early as 2023” illustrates the rapidly changing conditions being experienced both globally as sea levels rise faster than expected and locally as erosion wipes out protective barrier islands and marshlands in southeastern Louisiana.

Let that sink in: a $14 billion levee upgrade – a project that was designed after an under-designed levee system failed and killed over 1,800 people – repeated the original under-design and as a result, was no longer adequately protective and effectively obsolete after just four years.

Deja vu: The levees that failed in New Orleans during hurricane Katrina were under-designed. They were designed to survive a Category 3 storm.

Katrina was a Category 4 storm and exceeded the levee design standards. The Army Corps initially admitted this: (Washington Post)

Johnston said the Corps intends to launch an investigation to make sure it is correct about that scenario. But he emphasized that Katrina was a Category 4 hurricane when it smashed into the Gulf Coast, whereas Congress authorized the Corps to protect New Orleans against a storm only up to Category 3. “The event exceeded the design,” Johnston said.

Several detailed forensic investigations later found the levee failure was caused by both under-design and poor construction.

The Corps’ Federal Register notice I cited was issued to announce an environmental impact statement on evaluating options on how to fix the problem caused by the post-Katrina under-design and upgrade the levees.

Here is the debate from post Katrina New Orleans that the Murphy DEP is trying to evade and the NJ press corps is not reporting – and it’s all about money versus death and destruction: (NoLa.com)

In completing its draft report earlier this year, the Corps turned down a request by state and local officials to consider increasing protection to at least a 200-year level, or to a 500-year level of protection. It wasn’t justified, officials said.

“While the 200-year level of risk reduction alternative was competitive, its net benefits were lower than that of the 100-year level of risk reduction,” said Ricky Boyett, a Corps spokesperson. “Because of the lower net benefits, the 200-year level of risk reduction was not selected as the recommended plan.”

Climate Emergency Is Increasing The Intensity Of Rainfall And Extreme Storms 

DEP rainfall study ignored recent excessive rains from tropical storms Ida and Henri

NJ DEP Signals They Will Continue To Rely On The Outdated 100 Year Design Storm

The continued reliance on the 100-year protection standard represents an organizational failure by the Corps and Congress, which are still tailoring their responses to the last disaster, said Bea, an emeritus civil engineering professor at the University of California-Berkeley who led an independent forensic analysis of the levee failures after Katrina underwritten by the National Science Foundation. (NoLa.com)

Despite the science and recent repeated massive flooding, the NJ DEP is signaling that they will continue to rely on the outdated, scientifically flawed, and unreliable 100 year storm in upcoming climate adaptation regulations.

That 100 storm forms the basis for several critical DEP regulations regarding stormwater management, flood plain mapping, coastal zone management, land use, water resources, and planning and design standards that apply to development.

I explained the significance of the flawed 100 year storm in this September 4, 2021 post:

• Billions Of Dollars Spent On NJ Infrastructure “Resilience” Is Already Obsolete, As DEP Fails To Update Regulations To Reflect Climate Science

The US Army Corps of Engineers recently were forced to admit a similar huge engineering blunder due to reliance on flawed design standards, a $14 billion mistake: (Federal Register Notice, 4/2/19)

The signal from DEP is loud and clear, and has been repeated at least 3 times in the last few months.

Most recently, DEP signaled this in Senate testimony by Murphy DEP Commissioner Latourette to the Senate Environment Committee on February 10, 2022. In his testimony, Commissioner LaTourette highlighted the findings of recent research on increased rainfall (that study is discussed below).

Previously, DEP had authorized and in November 2021 released a seriously flawed rainfall study. That study was limited in scope to the 100 year storm, and it did not consider “excessive rains from tropical storms Ida and Henri”, see:

That Nov. 2021 released study explained the significance of rainfall data:

Curiously, the study limited the scope of the analysis to the 100 year storm, and did note even consider more extreme storms:

The study acknowledged this serious flaw, but in an elliptical way:

Regardless, despite this flaw – and DEP scientists’s criticism that the study failed to consider “recent excessive rains from tropical storms Ida and Henri” – DEP issued a praiseworthy press release touting that flawed study:

• NEW JERSEY-SPECIFIC STUDIES CONFIRM RAINFALL IS INTENSIFYING BECAUSE OF CLIMATE CHANGE

In that press release, DEP not only signaled, they outright affirmed that they would continue to rely on 100 year storm, but with slight increases documented by the study:

Notably, the studies will provide  the scientific basis for the ongoing development and modification of rules to be introduced under the state’s NJPACT (Protecting Against Climate Threats) and NJREAL (Resilient Environments and Landscapes) initiatives as directed by Governor Murphy’s Executive Order 100.

The DEP’s own press release revealed the flaws in the study and noted it’s reliance on the 100 year storm:

Among other storm types studied, what is often referred to as the 100-year, 24-hour storm is included. A 100-year storm is one that has a 1 percent chance of occurring based on past historical records and represents the total amount of rainfall likely to fall within a 24-hour period. […]

The long-term projections were developed from a combination of 47 climate models under moderate and high future emissions scenarios. The modeled storms included those with a 50% chance of occurring each year (also known as a 2-year storm), a 20% chance of occurring each year (5-year storm), a 10% chance of occurring each year (10-year storm), a 4% chance of occurring each year (25-year storm), a 2% chance of occurring each year (50-year storm), and a 1% chance of occurring each year (100-year storm).

The DEP was involved in designing the scope of the study. The DEP limited that scope to the 100 year storm and did not even consider the 200 – 500 year storms.

The DEP’s “worst case” storm was the current 100 year storm.

The DEP Science Advisory Board (SAB) “peer review” raised a large red flag on this flaw:

Boom!

Given the importance of this issue, it is highly unusual that the DEP SAB peer review document curiously eliminated comment #8!

You have to scroll to the bottom of the researcher’s response to those comments to even find comment #8!

I don’t think deleting a comment about “excessive rains from Ida and Henri” was an inadvertent or honest error.

I think DEP intentionally eliminated question #8 because it undermines the credibility and reliability of the study.

As I wrote back on September 4, 2021 (link above), tropical storm Ida was greater than a 100 year storm, and it illustrated that NJ DEP’s regulations that formed the basis of the design for billions of dollars of “resilience” projects were totally inadequate, largely because they rely on the 100 year storm.

The volume of water from a 200 – 500 year storm would far exceed the small percentage increases documented in the DEP’s flawed study, which was based on the 100 year storm.

In Part 2 of this post, I will explore the New Orleans Katrina experience to illustrate the implications of DEP’s continued reliance on flawed design standards, like the 100 year storm.

US Supreme Court Reviewing EPA Authority Under the Clean Air Act

Federal District Court Just Imposed An Injunction On Use of The Social Cost Of Carbon

Parallel Legal Issues Make Murphy DEP CO2 Proposal Highly Vulnerable To Challenge

A federal judge in the Louisiana District Court recently imposed a temporary injunction on the Biden administration’s implementation of the “Social Cost of Carbon”, for details, see the Washington Post story:

• Court ruling on social cost of carbon upends Biden’s climate plans

That District Court action follows a decision last fall by the US Supreme Court to review EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act, see:

• Supreme Court to weigh EPA authority to regulate greenhouse pollutants

Both federal court actions have huge legal implications for the Murphy DEP’s proposed CO2 emissions rule.

On January 28, 2022, I wrote to DEP Commissioner LaTourette to raise some of these issues and warn of the legal vulnerability of the DEP’s CO2 emissions proposal.

I urged the Commissioner to withdraw the proposal and re-propose a stronger and more legally defensible rule.

Today, I learned of the US District Court’s injunction on implementation of the federal Social Cost of Carbon (SCC).

Administratively, the SCC actually grew out of Clinton Executive Order 12866 regarding economic review of federal rule proposals by the Office of Management And Budget (OMB). Ironically, the origin and role of the SCC is closely related to the industry friendly methodology of cost benefit analysis (read the Biden OMB legal brief appealing the District Court’s injunction).

The OMB brief makes it very clear that the Court’s injunction amounts to regulatory monkey-wrenching (ironically delaying not only regulations, but approvals of major oil, gas and transportation projects. And news media failed to note that a Trump Executive Order also prohibited implementation of the SCC).

But here’s why the Biden administration is legally correct and ultimately will prevail on this issue in federal court, but that may take years (OMB brief):

The DEP CO2 rule proposal uses the same federal Social Cost of Carbon methodology to evaluate the economic impacts of the proposal (at page 79 – emphasis mine):

The DEP proposal also is influenced by Gov. Murphy’s Executive Orders (at page 4):

[Update: The DEP’s assertion of “an overall strategy” and reliance on the Global Warming Response Act is likely to trigger similar legal attacks that the Obama EPA’s interpretation of the federal Clean Air Act’s “best system of emission reduction” did. ~~~ end update]

Unfortunately, the DEP proposal was very poorly drafted and failed to make the non-binding nature of the Gov.’s Executive Orders and the Social Cost of carbon absolutely bullet proof clear. Lack of clarity invites legal mischief.

Worse,  as I wrote on January 28, 2022, the DEP proposal actual mis-represented the legal basis of the proposal, giving the aspirational and voluntary goals of the Global Warming Response Act regulatory teeth the Act does not have (instead of relying on the DEP’s historic legal position, first asserted back in 2004, to rely on the authority of the NJ Air Pollution Control Act to regulate GHG emissions). This is not just a lack of clarity and poor writing, this a fatal legal error.

Thus, there are shared complex legal, methodological, and administrative aspects of the NJ DEP CO2 rule and the EPA regulatory authority issue before the US Supreme Court and the District Court’s injunction on the SCC and implied related Executive Order authorities.

On a policy level, strategically, to the extent that federal EPA rules are delayed or struck down by activist right wing pro-corporate federal courts (or vetoed and/or defunded by a likely Republican Congress in ’23 or rolled back by a Republican President in ’25), that only ramps up the need for stronger State and local government actions.

In this political and legal context, the NJ DEP proposal is likely to invite litigation, regardless of the merits (and I think the DEP proposal is vulnerable to legal challenge).

A legal challenge could block implementation of DEP CO2 emissions rules for years. Worse, an adverse Court decision could set back DEP regulation of GHG emissions for a decade, or require legislative amendments unlikely to pass in the current political environment.

We can not accept those risks and delays, particularly given how weak the DEP proposal is. It’s just not worth it. Common sense strategy requires that the proposal be withdrawn and re-proposed to avoid these litigation traps and remedy legal flaws.

To re-emphasize the importance of these issues, I wrote another warning letter to DEP Commissioner LaTourette and Senator Bob Smith, again urging Commissioner LaTourette to withdraw the proposal and re-proposed a stronger and more legally defensible rule, see:

Dear Commissioner LaTourette and Senator Smith:

In a recent email to you (January 28, 2022), I outlined serious legal flaws with the basis for the Department’s proposed CO2 emission rules and urged you to withdraw the proposal, not respond on the record to public comments, and re-propose a legally defensible and more stringent rule.

Since then, the US District Court in Louisiana imposed a preliminary injunction on the federal government’s implementation of “the Social Cost of Carbon” (SCC), see:

https://www.washingtonpost.com/context/preliminary-injunction-in-louisiana-v-biden/84688797-f037-432a-a881-8cd087140285/?itid=lk_inline_manual_4

The Biden Administration has appealed the injunction, see brief filed by Office Of Information and Regulatory Affairs (OIRA):

https://context-cdn.washingtonpost.com/notes/prod/default/documents/a695d39a-e9b9-4c37-a280-d98b11822902/note/b86162aa-96da-40e3-a988-25cce44f6755.#page=1

The Department’s proposed CO2 emissions rules, among other things, applies the federal Social Cost of Carbon (SCC).

While I understand that the Department’s application of the SCC is NOT a legal or technical basis for the rule proposal and is limited to analyzing the economic impacts of the proposal, the inclusion of the SCC provides further litigation risk (beyond the legal flaws and litigation risks I outlined in my prior note).

The federal litigation also involved various Executive Orders and how they are implemented in the administrative and regulatory processes.

The Department’s proposed CO2 rule, again while not a legal basis for the proposal, includes consideration of various Executive Orders issued by Gov. Murphy.

Thus, while there are significant differences, the federal litigation parallels NJ State law issues with respect to the Department’s CO2 proposal, some of which I raised in my prior note.

I bring this matter to your attention with the intent of avoiding damaging litigation and supporting the strongest possible legal and technical regulatory proposal to reduce GHG emissions as deeply and quickly as feasible.

Therefore, given this federal litigation on the SCC – in addition to other pending legal challenges of EPA authority to regulate GHG emissions – I must reiterate my prior recommendation to withdraw the Department’s CO2 proposal and re-propose a stronger and more legally defensible rule.

I am available to elaboraste or provide additional information. I look forward to your timely and favorable reply

Respectfully,

Bill Wolfe

Ashtabula, Ohio

Exhibit A Of The Neoliberal Nightmare: Disinvestment, Deregulation, And Neglect

I heard on the radio that Joe Biden was in northeast Ohio the other day to talk about his “bi-partisan infrastructure” bill and “promise of restoration”.

Having swung through that region recently and been stunned by the devastation – of the human and built infrastructure –  we thought we’d post a few scenes you won’t see at a Biden press conference with all those corporate folks. (or hear about the role of the Democrats in creating the economic conditions we now face).

We all know about the “media transcriber” role mocked by TV comics, but does the national media stray from the perimeter of a Biden press conference? Are they “visual transcribers” too?

If might be good if they got out more often and talked to people and took a look around. This is what Neoliberalism looks like!

Scenes below are from Main Street, Ashtabula, Ohio: the downtown had the same feel as Salem, NJ (scroll down for photos).

(Note: I cheated: the photo above is from another Great Lakes town, but one that’s doing well, Marquette, Michigan and it is good demolition of an old coal power plant!)

Deindustrialization Kills Jobs, Working Class Morale, and The Local Tax Base

(poor people warehoused at the edge)

(“North American Dismantling Corp.”)

Decay Of Downtown

(when the jobs go and Walmart and Dollar General come)

“Creative Destruction” – Despair Prompts New Business Opportunities

(used appliances and drug markets)

Dismantling Of The Social Safety Net Is Replaced By Private Charity

Parasitic Banks Privatize Local Government

Military Becomes The Only Opportunity For Escape For Kids

Religion Becomes The Only Source Of Hope

Even History Is Commodified And Gentrified For Upscale Tourists

Homelessness, Suffering And Deaths Of Despair Explode

Obsolete and Hollow Business Institutions No Longer Inspire “Spirit, Mind, Body”

The Right Wing Neoliberal War On Government, Planning, “The Commons”, All Things “Public”, Civic Virtue, Progressive Taxation, Egalitarianism, Tolerance, Cosmopolitanism, Solidarity, Unions, Secularism, Humanism, Science and Enlightenment Values – Replaced By A Policy Of “Free Markets”, Corporate Subsidies, Deregulation, Privatization, Competition, “Individual Responsibility”, Nationalism, Authoritarianism, and Religious Dogma – Leads To Pollution, Poor Land Use, Gross Inequality, And Social Collapse

*sorry, no local photos of all the crap “development” along the interstate interchanges and the decrepit 1970’s -80″ era strip malls and fast food chains.

Crappy land use, crappy food, crappy jobs, crappy public services, crappy housing, crappy schools, crappy public transportation, crappy health care, crappy libraries, crappy parks, crappy arts, crappy entertainment, crappy media, crappy culture, crappy opportunity, crappy environmental quality, crappy quality of life, crappy right wing politics.

Loads of drugs and alcohol and guns and police and prisons and military.

A literal Death Spiral.

NJ Gets Poor Marks For Teaching The History Of Reconstruction

Content of State Curriculum Standards Described As “Dreadful”

The past is never dead. It’s not even past.’ ~~~ William Faulkner

I just read a very interesting news story about a Report by the Zinn Education Project on the teaching of the history of the Reconstruction period.

Being an increasingly dedicated reader of US history and a huge fan of namesake Howard Zinn, of course I thought I’d read it, see:

• Erasing The Black Freedom Struggle

Connecting the past to the present, a major theme of the Report is that the historical legacy of Reconstruction lives on in today’s controversies:

Even as ongoing crises with obvious links to the Reconstruction era continue to reinforce its significance today, most people living in the United States know shockingly little about the policies, people, conflicts, and ideas that shaped Reconstruction and its aftermath.

The Report included a 50 State Assessments on Teaching Reconstruction, so of course I checked that out to see how NJ was doing.

Not so good.

Coverage of Reconstruction is mandated in New Jersey as all districts are required by the state law (Amistad Commission) to “incorporate the information regarding the contributions of African Americans to our country in an appropriate place in the curriculum of elementary and secondary school students.” Unfortunately, this has not yet impacted New Jersey state standards: the coverage of Reconstruction is partial, and their content is dreadful. Students are supposed to learn about Reconstruction first by the end of grade 8 and then again by the end of grade 12. The New Jersey Department of Education adopted new state standards in 2020

The NJ State assessment is preceded by a “reconstruction vignette”, illustrating racism at the Jersey shore.

Of course, Faulkner was right, the past isn’t even past. As the Report documents, what we refer to today as the “beach access” debate was overtly racist back during Reconstruction:

During Reconstruction, New Jersey vacation destinations drew white and Black visitors alike. Many white tourists opposed sharing spaces of leisure with Black patrons and, in the 1880s, some local officials tried to implement segregated facilities and vacation times. In a June 29, 1887, article from The Sun, excerpted here, the author described white outrage at the idea and practice of Black recreation in Asbury Park.

Here’s the “vignette”, what the Asbury Park newspapers were writing at the time:

Mr. Bradley, the founder of Asbury Park, has been moved to protest against what he calls the monopolizing of the seats by these colored sojourners, who, in their turn, have held a meeting to denounce him for undertaking to interfere with their rights. Of course if the seats are provided for the public, the colored people have as much right to them as the white people, so long as they conduct themselves properly. First come first served must be the rule, and whoever finds an empty seat is at liberty to take it, whatever his complexion. Nor even if they are private property is it possible to make any reasonable discrimination against their use by decent colored people in a place like Asbury Park. Yet it seems that the white visitors, even when they are fellow Methodists, are outraged when they find the privileges of the beach largely enjoyed by the colored visitors. They are willing that they should get food for their souls at the camp meetings, and are not averse to employing them as servants, but they do not want to sit by them on the board walk.

NJ’s racist history is blatant and shameful – and the historical echoes still redound to today’s more subtle controversies on beach access:

Many of those families don’t have the time or resources to drive all the way down to Loveladies – (and does public transportation even go there?) where they are not wanted and are actively excluded by those offensive “Private Property – No Beach Access” signs on almost every beachfront property.

Those are the people I was thinking about when I said that the “No Public Acccess” signs along LBI reminded me of the “white’s only” signs of the South.

In case anyone felt that remark was over the top, “played the race card”, or was used as a metaphor, think again.

The signs fit within a culture and a social system of de facto racial and income segregation – including of shore housing and beaches, where the facts are so easily observable.

Those signs are posted with the same racist and exclusionary motives by the property owners.

And they have the same discriminatory on the ground consequences.

Tim Dillingham’s “separate but unequal” comment, about some people densely packed onto beaches while others enjoy a more secluded beach, was accurate and apt – not a metaphor.

That reality is no accident, but the result of racist systems and individual racism.

I am not trivializing racism by equating the effects of historical racism against blacks with beach access.

But yes, gaining access to beaches at Loveladies is like access to drinking water fountains in George Wallace’s pre-civil rights south.

Here’s the full NJ State assessment:

Assessment

Overall, New Jersey’s standards on Reconstruction are insufficient. Though the standards touch on the politics and policies of Reconstruction, they do little to engage with the experiences of Black people during the period, especially their struggles to secure their freedom and autonomy. This is particularly troubling considering the state mandate for schools to teach the “contributions of African Americans to our country.”

In both grade levels in which it is taught, Reconstruction is presented as a political project focused on reunifying the nation after the Civil War that was opposed by white Southerners for complicated reasons. At the high school level, standards focusing on resistance to Reconstruction often equate “Southerners” with “white Southerners” and conceal the efforts and achievements of African Americans who also lived in the South. Missing from this narrative is any mention of Black people’s efforts to gain political and economic equality and independence or the violent efforts by the KKK and other white supremacist terrorists to reinscribe racial hierarchies. Also missing is any discussion of the positive and negative legacies of Reconstruction, though the Reconstruction Amendments are mentioned and could provide a jumping off point for such discussion.

Teaching Reconstruction effectively requires centering Black people’s struggles to redefine freedom and equality and gain control of their own land and labor during and after the Civil War. Any discussion of Reconstruction must also grapple with the role of white supremacist terrorism in the defeat of Reconstruction and the negative and positive legacies of the era that persist to this day.

In Jan. 2021, Gov. Phil Murphy signed into law S1028, allocating the Amistad Commission in the Department of Education but independent of the department’s control. The law “requires public schools to include instruction on accomplishments and contributions of African Americans to American society.” It delineates the Amistad Commission’s role in distributing educational materials to educators, monitoring and assessing their inclusion in New Jersey’s education system, and otherwise supporting teaching of “the African slave trade, slavery in America, the vestiges of slavery in this country and the contributions of African Americans to our society.” Among these efforts, the commission has sponsored an interactive curriculum with resources for teaching social studies.

In Nov. 2021, Senate Republicans introduced S4166, a bill designed to ban “critical race theory” and “issue advocacy” from classrooms. Several respondents to our survey expressed concern about the possible chilling effects on classroom education that such bills may have around the country, particularly on discussions of the history and legacies of Reconstruction. Others expressed their commitment to continue to teach honestly about U.S. history and signed the Zinn Education Project pledge to teach truth. For example, Irvington elementary school teacher Sundjata Sekou wrote, “If teaching about racism, systemic oppression, or anti-Blackness becomes illegal in New Jersey classrooms, I will purposely break that law once an hour Mondays to Thursdays and twice an hour on Fridays!”