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“Takings” Comment To The Right Of Libertarians & Corporate Property Rights Zealots

Reliance On Failed Local Land Use Powers Is A Gross Abdication of State Responsibility

Remark is “highly irresponsible – bordering on criminal negligence”

[Update below]

I just choked on my coffee reading this written remark by NJ Senate Environment Committee Chairman Bob Smith.

Smith was responding – in writing, giving him time to reflect – to a public question posed at a NJ Spotlight roundtable on stormwater management.

I’ve worked confidentially and closely with Smith on legislation and publicly monitored and testified before his committee for many years, and long been concerned about his thinking and lack of action on land use. Let me offer just 3 of many examples I could cite: 1) He only sponsored the Highlands Act because he was directed to do so by Gov. McGreevey. 2) Smith flat out insisted that the Ocean and Coastal Protection Council bill (also enacted into law) did not provide new land use powers to DEP. 3) Most recently, Smith backed a lame climate land use bill that perpetuated the demonstrably failed reliance on another fabricated and false notion of exclusive “home rule” on land use.

(And off course, there is a pattern: Smith did nothing before Superstorm Sandy, did nothing after Superstorm Sandy and is doing nothing after Ida either). The Dirge goes on:

• A Dirge To McHarg and Mumford – Who Are Rolling Over in Their Graves

So, based on those experiences and many others, I think Smith’s remark was not off the cuff hyperbole, but actually represents his ideological views on land use.

Here is the question and Smith’s reply, followed by my letter to Smith taking strong exception to his remark: (NJ Spotlight)

Q: In a time of increased flooding risk due to the climate crisis, do private companies have a responsibility to the state to reduce impervious surface and/or prevent impervious surface from being built, i.e., by building/developing less land and/or not selling property to developers who will reduce pervious surface? Or is this yet one more thing that must be legislated at the local level via ordinance? 

See the 5th Amendment of the U.S. Constitution, but should be regulated by local zoning. — Sen. Robert Smith (D-Middlesex), chair of Senate Environment and Energy Committee

Here is my reply to Smith, with a copy to DEP Commissioner LaTourette:

Dear Senator Smith – I just read your response (excerpted below) to a question published by NJ Spotlight. I was simply, astonished.

Could you please clarify and expand upon your glib remark, or guide me to some legal basis for your “thinking” here?

As you know, there are many NJ State laws and DEP implementing regulations – including laws you sponsored like the Highlands Act – that regulate land use, including restricting the location and extent of impervious surfaces and limiting the volume, rate, and risks and impacts of the stormwater it generates. These laws apply to existing and proposed new development.

The DEP has even used impervious surface regulations as a basis to promote development under the CAFRA regulations.

These State laws and regulations have all been upheld by the NJ Supreme Court and federal courts with respect to “takings” challenges.

We are in a climate emergency. The private sector must be responsible for the many adverse impacts they create, including from stormwater. Private property is not immune from law and regulation.

It is more than obvious by now that the current State legal and regulatory framework are grossly inadequate and failing to respond to the climate emergency.

The NJ Legislature and the DEP must greatly expand the scope and stringency of virtually all laws and regulations with respect to greenhouse emissions reductions and adaptation to climate impacts.

As a leading legislator, it is highly irresponsible – bordering on criminal negligence – to throw up your hands and hide behind a manufactured and false facade of the US or NJ Constitution’s “talkings” provisions and to continue to rely on a false notion of “home rule”.

I look forward to your clarification.

Bill Wolfe

C: DEP Commissioner LaTourette

* letter was amended on home rule

[End Note: Senator Smith did nothing with his legislative oversight and regulatory veto powers when the Murphy DEP weakened stormwater regulations – a move that was strongly criticized by FEMA – and even his bill’s supporters were forced to admit that the local “home rule” based stormwater utility law is a total failure – not one community is implementing it, not one.: (NJ Spotlight)

Q: What New Jersey municipalities have successfully created stormwater municipal authorities? How long have they operated and are fees adequate to address the “itsy-bitsy creek?”

NJDEP is not aware of any New Jersey municipality that has created a stormwater utility. To assist willing local governments, NJDEP has published Stormwater Utility Guidance, which is available here.  — Shawn M. LaTourette, Commissioner, New Jersey Department of Environmental Protection (NJDEP)

[Update: Here is the current NJ case law on “regulatory takings” that would apply to State land use regulation: (case citations omitted. Hit the link and read the entire Court’s decision if you are interested).

Note the “categorical example” that establishes the legal standard to trigger a taking: to deny “all economically beneficial or productive use of a property” – a very high standard. Constitutional and statutory police power based State regulatory limitations – even severe limits – on impervious surfaces, reductions of off site stormwater generation and flooding, and the location and extent of development to protect public health and safety does not come close to triggering this “takings” standard – thus exposing the legal absurdity of Senator Smith’s radical views.

The State’s land use regulations only become legally stronger during a climate emergency – and are virtually bullet proof in the event of an emergency declared by the Governor and/or the Legislature.

Importantly, federal and NJ Courts have recognized that the Gov. even has the power to declare a climate emergency and impose a complete moratorium on development and need not wait for the Legislature to act:

During our east coast swing this summer, we had a nice tour along the northern leg of the Great Lakes Seaway Trail in upstate NY, from Sackets Harbor to Massena NY, and then south through Potsdam (where I was a freshman at Clarkson College in 1975) down to Ticonderoga. Lots of history there, although the military aspects seem to dominate the official markers. Some pics:

BPU President’s Testimony Contradicts BPU Confidentiality Practices

(Source: ANALYSIS OF NATURAL GAS CAPACITY TO SERVE NEW JERSEY FIRM CUSTOMERS – Redacted Public Version)

Last week, NJ BPU President Joe Fiordaliso testified to the Senate about the Murphy Administration’s clean energy and climate programs.

I had a whole lot of problems with what he said (and didn’t say) that I don’t want to waste my time or yours discussing here, but I got a belly laugh when he said this.

Aggressively responding to criticisms from the business community, Fiordaliso said this: (starting at time 14:50 -emphases mine):

I assure you that the Board identifies the cost of each initiative before they are enacted. …. There is a cost to combating climate change. There has been a concerted effort to scare residents about mandates and costs. And to be clear, the Board has issued no mandates as of this point. We hear that the State has no idea what this will cost, but also we can’t possibly afford it. Let me be absolutely clear. The Board of Public Utilities does not put a program in place without knowing what the impact to the ratepayer will be. Every off shore wind solicitation award has included the ratepayer impact. Our solar proceedings all include cost estimates. The same for energy efficiency or electric vehicles. Now to be perfectly clear, some of these numbers are estimated because they depend on market forces, which can not be predicted with 100% accuracy.  But we do not put programs into action without those cost estimates being known and made public.

Keep that Fiordaliso phrase in mind: “cost estimates being known and made public.“

That BPU testimony went unchallenged by Legislators. No one asked about corporate profits. That’s a taboo topic in Trenton. “Market forces” is a euphemism for all that.

So is the issue of regulatory mandates by BPU or the DEP. No one supports “mandates”.

As I wrote, both BPU and DEP ran away from any regulatory mandates.

I guess BPU’s understanding of cost estimates does not include letting corporate profits “be known to the public.”

Why can’t the public know how much they are paying to provide corporate profits, generous CEO and executive pay, and shareholder returns?

Why is that information secret?

Wouldn’t you like to know PSE&G profit margins and the names and job duties of all the executives at PSE&G that make more than $150,000/year?

The redacted document above that keeps actual costs and corporate profits “confidential” is from a study submitted to the BPU: (openly labeled a redacted public version)

NJ Spotlight reported on that study on December 27, 2021, see:

• NJ natural-gas supply adequate through 2030, new analysis indicates

Of course, NJ Spotlight did not report the “confidentiality” of corporate profits in that report – nor did any of the well fed climate cheerleaders Spotlight relies on as sources raise any concerns about corporate profits, secrecy, or the run away from “mandates”.

NJ Spotlight also reported on the February 10 Senate hearing where BPU President Fiordaliso testified, as I excepted above. Spotlight wrote nothing about DEP or BPU mandates or on the secrecy of corporate profits.

Those topics are Taboo in NJ media as well.

As the late writer William Greider wrote: who will tell the people about this?

Once Again, Murphy Administration Elevates Economic Development Above Environmental Protection

Once Again, NJ Spotlight Not Only Gives Them A Pass, But Cheerleads For It

NJ Toxic Site Cleanups Are Privatized And Exempt From “Historic” Environmental Justice Law

The view from Paulsboro High School. Would you want your kid to attend this school?

Once again, the Murphy administration has launched an initiative that allocates resources, subsidizes, and elevates private economic development interests above protection of public health and the environment.

NJ Spotlight today reports that the Murphy DEP, Economic Development Authority (EDA) and Department of Community Affairs (DCA) have created a program designed to promote economic development of toxic sites, see:

• NJ looks to spur redevelopment of neglected sites

The story is highly misleading, starting from the title (and using a photo from Paulsboro is visually misrepresenting the story too. I somehow don’t think that’s an accident, as I recently used Paulsboro as an illustration of exactly the opposite narrative that NJ Spotlight writes).

First, these are not “neglected sites” – they are toxic waste sites.

Second, you can’t redevelop a toxic site until the site is cleaned up.

Third there are many important issues that are totally ignored or grossly misrepresented.

Let’s start by asking a basic question:

1. Why is DEP allocating expert staff time, using sophisticated GIS systems, and spending public money to inventory and create maps of toxic sites designed to provide important information to investors and developers, when there are many people who live nearby that are not provided similar maps and information and know virtually nothing about risks to their health or property values?

NJ Spotlight cheerleads that:

The sites are identified in a new layer of the Department of Environmental Protection’s Geographic Information System (GIS) mapping application.

But they fail to report on all the critical information DEP buries from public awareness and provides no public GIS maps or public information or promotional programs for, see:

• They Don’t Have An App For That: Critical Environmental Information Buried In The Bowels Of the Bureaucracy

Here’s another basic question:

2. Why, 45 years after the 1976 passage of NJ’s Spill Act (the NJ State toxic site cleanup law that preceded and was a model for the 1980 federal Superfund law), are there over 500 sites that have not been cleaned up yet? And why hasn’t DEP taken effective enforcement action to force cleanup?

Instead of framing it that way, NJ Spotlight feeds us this crap:

Many industrial sites have lain fallow for years because their owners have not had the funds to clean them up and return them to productive use, said Elizabeth Limbrick, the EDA’s director of Brownfields and Sustainable Systems.

“Lain fallow”? Are you kidding me? An agricultural field lies fallow, not a toxic waste site.

[Full disclosure and admission: sadly, I had a role in making this problem worse. I was a member of Senator McNamara’s Stakeholder group that drafted the 1997 Brownfields Act. That was one of the biggest mistakes in my career. Where was Murphy DEP Commissioner LaTourette back then? Was he even in high school yet?]

Here is another basic question:

3. Why is DEP subsidizing basic “due diligence” and market research work for private real estate firms and development corporations, work required for traditional land assembly?

DEP is not a real estate agency or development firm.

Why are there no DEP subsidies for communities or activists who work in the public interest to force corporations to cleanup their toxic mess? No information, no GIS maps, no DEP staff support, and no money for public interest work (I know that first hand).

In addition to failing to even consider these kind of basic public policy questions, the story actively misleads readers by both not including critical information about gaping loopholes in NJ laws and using DEP spin to cover up those flaws.

Very few people know that the cleanup of toxic sites in NJ was privatized by the legislature.

As a result, people have virtually no knowledge of or any role in the cleanup of these toxic sites – including such basic due process rights like being able to review and comment on proposed cleanup plans through the normal public notice and comment process.

A homeowner installing a deck, swimming pool, or small addition provides more public notice and opportunity for comment to the community than the cleanup of a toxic waste site by Dupont.

Just let that sink in. You have more power and influence and are provided more opportunity to review and comment on your neighbor’s deck construction or landscaping than a corporation conducting a toxic site cleanup across the street (including groundwater and subsurface chemical “vapors” that could be migrating into you basement or drinking water well).

But there is a double wammy in shutting out the public from the toxic site cleanup process.

Very few people know that the cleanup of toxic sites was explicitly exempted from the recent “groundbreaking” “historic” environmental justice law.

That means that poor and minority communities that are overburdened by pollution and the location of the majority of these toxic site have no role in their cleanup.

That means that the cleanups are not reviewed by DEP under the stricter standards of the environmental justice law.

But NJ Spotlight not only ignores these massive flaws – they actually cover them up, with this misleading garbage:

By creating a central inventory of the 513 sites, officials hope they will encourage investors, developers, and local officials to redevelop the sites and return them to productive use. They are located in 12 poor cities that belong to the state’s Community Collaborative Initiative, an existing program that aims to coordinate environmental cleanup, community revitalization and efforts to improve public health.

That misleads readers into thinking the the voluntary. Community Collaborative Initiative is equivalent to and a substitute for the DEP oversight of the toxic site cleanup program and the local community’s ability to participate in environmental justice law reviews.

There is no way the Community Collaborative Initiative closes those loopholes and exemptions in the EJ law or can fix the problems created by privatization of NJ’s toxic site cleanup laws.

This initiative makes it obvious that the Murphy administration is far more interested in the economic interest of investors and developers, as opposed to the public health and environmental quality of the people living in communities that are burdened by these toxic sites.

And it is shameful that NJ Spotlight covers all that up and instead cheerleads for it.

[End Note: This program is another illustration of what I recently wrote – add it to this list:

At DEP, Gov. Christie’s DEP Commissioner Bob Martin’s “customer service” initiative has become full on “Corporate service”.

The big developers and corporate polluters are given full access to DEP staff via a panoply of administrative procedures, from secret permit pre-application conferences, to ongoing meetings and communications on permit applications, to “Dispute Resolution” procedures to negotiate  things like enforcement fines, natural resource damage assessments and compensation, and “grace periods”.

Corporate interests also get undue access by representation on DEP’s Science Advisory Board.

Corporate interests dominate DEP “Stakeholder” processes.

Corporate lawyers and engineers dominate and even draft DEP “Technical Manuals” and “Best Management Practices” BMP guidelines or issuing permits (they literally write their own ticket).

Corporate polluters, via permit fees, fund DEP staff salaries: so, as the say, he who pays the piper calls the tune.

“Polluter Pays” has become “Polluters Invest and Own”

Across the board, DEP has gone way beyond “corporate capture” and has become a corporate service agency.

(and how could we forget that the current DEP Commissioner is a former corporate lawyer!)

IF There Were 900 Wildfires In NJ, That Suggests Significant Air Pollution Risks

What Is DEP Doing To Reduce Risks?

I recently wrote about how DEP and Senator Smith were exaggerating wildfire risks as a pretext for “active management” of NJ’s forests and as a means of diverting public and press attention from more pressing risks.

But, I must say, although I have been living out west now for years and not in NJ, I was surprised by DEP Commissioner LaTourette’s testimony to the Senate that there were 900 wildfires last year in NJ. Frankly, I have a hard time believing that.

But, if DEP is going to manipulate the forestry debate with wildfire risks, then they must be held accountable to their own rhetoric.

Here’s how the US Forest Service defines “wildfire”: (notice that it includes “escaped prescribed fires”)

That 900 number was picked up in today’s NJ Spotlight story:

Last year there were 900 wildfires in New Jersey, an amount described as shocking by DEP Commissioner Shawn LaTourette.

How do you waltz into a legislative hearing and casually drop that kind of bomb, with no supporting evidence, and get zero questioning from stunned legislators?

900 wildfires in such a small and densely populated urbanized state? Really? If so, that is shocking. Is DEP counting backyard grills, roadside grasslands, and dumpster fires? (or maybe book burnings! – that’s snark!)

900 wildfires must produce a lot of air pollution and threats to residential and commercial development.

If so, it raises questions and suggests a few things:

1) Where are these wildfires occurring?

I”d like to see this data mapped. Knowing DEP, there are already GIS data layers, so a map should be very easy to produce.

2) Is DEP doing anything to restrict development in the areas of highest wildfire risks?

I am not aware of current significant restrictions on new development in high fire hazard areas.

DEP needs to ratchet down and restrict new development in the upcoming Climate PACT REAL land use rules.

Those rules must also include new requirements for fireproofing homes and buildings in high risk locations.

3) Why would DEP support legislation that exempted wildfires from air permit and air quality reporting?

Wildfires produce a lot of smoke, which includes dangerous fine particulates. In a compact densely populated state like NJ that already fails to meet clean air health based standards, addition of 900 wildfires is a significant air pollution problem.

But according to NJ DEP’s Clean Air Act State Implementation Plan (SIP) for ground level ozone, the air pollution from wildfires is no longer reported!

On 2/6/15, the Obama EPA:

eliminated the requirement for state and local agencies to report emissions from wildfire and prescribed fires (@ p. 10-3) https://nj.gov/dep/baqp/OA/Ozone%2075%20ppb%20AD-70%20RACT-2017%20PEI%20Final%2011-18-21.pdf

With 900 wildfires, why is DEP suppressing air pollution data?

Worse, the 2018  Prescribed Burn Act exempts “prescribed burns” from air pollution permit and compliance requirements and provides exemptions from liability for air pollution impacts (e.g. like sending you asthmatic kid to the hospital).

4) With so many people and so much property at risk from wildfire, why did DEP support legislation that eliminated liability for wildfires caused by poorly managed “prescribed burns”?

The Prescribed Burn Act, specifically see C.13:9-44.16 Prescribed burn deemed to be in public interest; immunity from liability, also exempts wildfires caused by prescribed burns that get out of control and damage people and property (e.g. your barn or house burns down or you animals killed).

5) How many “escaped prescribed fires” caused wildfires?

I’ve seen escaped prescribed burns in South Jersey. I also am aware that a DEP prescribed burn near Round Valley Reservoir a few years back resulted in a fire fighter fatality when a car driver was blinded by smoke. I’d like to see DEP data on these kinds of accidents, especially given the liability exemption under the Prescribed Burn Act.

6) Science suggests that prescribed burns and thinning don’t work to prevent wildfire

This is science on western forests, but I’ve not seen DEP’s similar science on eastern forests:

It seems to me that DEP only wants to use the risks of wildfire to justify their “active management” forestry policies and practices, including a “prescribed burn” program.

But is also seems to me that DEP is doing nothing to reduce the risks and impacts of wildfire, like land use controls and restrictions on new development, fireproofing requirements for existing development, and more restrictions on harmful air pollution (aside from not conducting controlled burns on bad air days).

To get this wildfire data and maps, I sent the following OPRA public records request to DEP just now – let’s see if they can back it up:

“On February 10, 2022, Commissioner LaTourette testified to the Senate Environment Committee. In that testimony, he stated that there were 900 wildfires last year. The Commissioner’s factual claim was repeated today (2/15/22) in a NJ Spotlight story by Tom Johnson.

I request the following public records:

1) the data that the Commissioner used to support the Commissioner’s factual claim of 900 wildfires.

2) the location, size (acreage), duration, and date of each of these 900 wildfires.

3) Reports, data, or documents submitted to the Commissioner regarding the existence and suppression and prevention of these wildfires, submitted from January 1, 2020 until the present.

4) the Department’s definition of “wildfire”.”