WolfeNotes.com

Senate Environment Committee Hearing Is Pure Kabuki

Murphy Administration Far More Concerned About Business Community’s Attacks On “High Costs” And Regulatory Mandates Than Climate Scientists’ And Activists’ Criticisms

Murphy Relies On Incentives, Low Cost Tinkering, And Culture Change

The Senate Environment Committee heard testimony today from only 2 “invited guests” on the climate emergency and what State government should be doing about it. (listen to the testimony here).

NJ BPU President Fiordaliso and DEP Commissioner LaTourette were the only “invited guests” to testify. No scientists. No climate or energy experts. No climate activists or environmentalists. Pure political theater.

The hearing was actually worse than I expected, in terms of being a political show and opportunity for the Murphy administration to respond to critics. This was not legislative oversight, this was legislative press event.

Both Fiordaliso and LaTourette were far more sensitive and responsive to the business community’s attacks on their climate and energy policy on the grounds of imposing high costs on consumers and doing so via regulatory mandates.

Both denied and repeatedly ran away from any “mandates” – it was like the denial of Peter and the Cock crowing.

How can climate be an existential threat and yet the Murphy people are worried about costs?

When the house is on fire, you don’t conduct a cost benefit analysis and solicit voluntary neighborly response before calling the firemen.

Regardless, it will work. Expect NJ Spotlight to transcribe the Murphy talking points, with the same old complaints of high costs by Ray Cantor (NJ BIA) and/or Dennis Hart (NJ Chemistry Council).

I need to make a few specific comments on DEP Commissioner LaTourette’s testimony.

1. On climate adaptation, LaTourette misleadingly claimed that DEP’s stormwater rainfall runoff volume regulations were based on outdated 1999 rainfall data. (I think he said rainfall had increased 20-30% since 1999).

While that may be true, the real issue is the statistical design storm. DEP currently uses the 100 year design storm, when they should be using the 500 year storm. Science tells us that the future will not be like the past, so these statistics are no longer are reliable. LaTourette is obviously dodging that issue. The difference between the 100 and 500 year design storm volume is huge, far more significant than the alleged 20-30% increase in rainfall.

Basing various DEP regulations on the 500 year storm would have huge impacts, from expanding flood hazard zones to limiting the location and footprint of development, to increasing infrastructure elevations and capacity to reduce flooding.

He also failed to mention that even FEMA blasted DEP’s stormwater rules as totally inadequate in failure to reduce flood risks.

2. On upcoming DEP PACT REAL land use regulations, LaTourette again diverted from real issues and signaled more misguided reliance on market based information disclosure. He mentioned that NJ lacked a real estate disclosure law, while Texas had such a law. Chairman Smith then jumped in to clarify this issue.

So, look for more false solutions to emerge: Smith will sponsor a real estate disclosure bill, while he and DEP ignore issues like NJ’s right to rebuild laws and the need for strategic retreat planning and regulation.

3. LaTourette claimed – falsely – that the DEP CO2 proposal is an emissions “cap”. Not true.

4. On DEP’s current CO2 emission proposed rules, again LaTourette dodged the issues and misled the legislature.

LaTourette emphasized that this rule is just an incremental first step and that more rules would be forthcoming. He not only failed to respond to critics of that proposal, he created a completely false impression of how DEP regulations and the economy actually work.

DEP rules are in effect for 7 years and the private sector makes 30+ year investment decisions in reliance on them, so it’s not like small steps can gradually and quickly be ratcheted down on. In fact, the current DEP CO2 proposal would lock in current emission until 2035 and allow emissions to grow.

Finally, I and others have criticized the DEP proposal and the Global Warming Response Act as toothless and unenforceable.

LaTourette parenthetically referred to some of those legal issues. I objected in the below letter to him and Chairman Smith:

Dear Commissioner LaTourette and Chairman Smith:

I listened closely to the testimony today and therefore am writing to request that you clarify important issues.

In discussing DEP recent regulatory proposals – including the CO2 emissions proposal – DEP Commissioner LaTourette parenthetically and vaguely referred to DEP’s existing authority and the technology based approach of the federal Clean Air Act and NJ Air Pollution Control Act. To paraphrase, he stated that the laws are not driven by climate.

I assume that the Commissioner’s intent was to distinguish the DEP’s regulatory authority under the federal Clean Air Act and NJ Air Pollution Control Act from the aspirational emissions reduction goals of the Global Warming Response Act.

Regardless, these distinctions were not made in the background document for the DEP CO2 proposal. Just the opposite: that proposal conflated these laws and can reasonably be interpreted as asserting DEP authority under the GWRA to mandate emissions reductions to meet the goals of the Act.

This is woefully inadequate treatment of the legal issues I raised to your attention (and have since submitted on the DEP CO2 proposal) in the 1/28/22 email below.

Given these fatal legal flaws I flagged in DEP proposal, it is critically important that you clarify these issues. A vague allusion in testimony is totally inadequate and unacceptable.

I recommend that Commissioner LaTourette rescind the DEP CO2 proposal and not respond to public comment on that proposal.

That is the only way at this point to protect against litigation risk.

I am available to clarify at your request.

Last Chance To Protect What’s Left Of NJ’s Forests

Environmentalists Must Go Big And Be Bold

DEP Must Abandon The Current “Active Management” Approach

Preservation And Climate Emergency Is The “New Paradigm”

The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.  ~~~ Antonio Gramsci

Testimony from “invited guests” on the climate emergency will not be the only important discussion before the Senate Environment Committee tomorrow (Thursday, Feb. 10).

Chairman Bob Smith will announce the formation of a “Forestry Task Force”.

Formation of that task force was mentioned during the recent Forest Forum held by the NJ Highlands Coalition – suggest you watch the Policy issues video.

Prior to that Forum, I provided the recent context, see:

• The Future of NJ’s Forests – At Risk From Climate, Logging, Development, & DEP MisManagement

Given that Senator Smith was featured at the Forum, I posed the critical question, and provided a stern warning:

Has Senator Smith abandoned his flawed and controversial legislative logging package? […]

Smith may no longer have a reason to pass legislation.

One would think that failure to pass legislation to authorize a controversial “forest stewardship” program that threatens NJ’s publicly owned forests would mean that DEP could not implement that program unilaterally in the absence of enabling legislation.

One would be wrong.  

DEP is already implementing Smith’s forestry program in the absence of legation via a Forest Action Plan and Natural Lands Initiative. These DEP programs are managed by the key logging advocate who developed the “active forests management” scheme, imposed it on Sparta Mt. Wildlife Management Area in joint project with the Christie DEP (and he lied to the public about it), and worked with Smith in drafting his flawed legislation. 

John Cecil, formerly with NJ Audubon – is now the Murphy DEP’s Director of Parks and Forestry, where he can impose his flawed ideas on NJ’s forests unilaterally in the absence of legislation and with very little if any public oversight or regulatory restrictions.

This is a formula for disaster.

Finally, after decades of failure to protect forests, to regulate forestry, and pass pro-logging bills, it seems like public outrage over forestry abuses has convinced Senator Smith to abandon his efforts to “actively manage” NJ forests in a way that promotes logging.

At the Forest Forum, Senator Smith seemed to throw in the towel on his package of legislation.

Smith announced his intention to seek a “new paradigm” and his plan to form a “Forestry Task Force” to make recommendations on how to best manage NJ’s forests. The Task Force membership will be announced on February 10.

Invoking the Gramsci quote above, the “new paradigm” that is being born must be based on the over-riding imperative to preserve what little forests remain in light of the climate emergency.

The old that is dying is the current “active management” approach to “forest stewardship“.

And the “morbid symptoms” are logging projects justified by slogans like “young forests“, “thinning”, “habitat creation” and “wildfire prevention”.

The Smith Forestry task Force must aggressively confront these challenges and affirmatively abandon the old before even thinking about the “new paradigm”.

So let me suggest a preliminary outline of the framework for a “new paradigm” and the bright line demands that must be made at the outset of the Task Force deliberations, in order to frame the issues, establish expectations and hold Task Force members and Senator Smith accountable.

In essence, current basic assumptions about trees, common public trust natural resources, and private property rights must dramatically change.

Trees – and the carbon they store – must be viewed the same way that the air, rain, wildlife, wetlands, and surface and ground water flowing through a stream across private lands are.

Simply put, in a climate emergency and zero carbon world, carbon and the carbon cycle have become public resources.

The private property owner does NOT own the air, rain, wildlife, wetlands, or the water the happens to cross his land – these currently are all public resources held in trust, regulated, and managed by DEP.

Private property owners can no longer own the carbon stored for decades in trees. Trees must now become publicly owned and must become a protected “regulated feature” of the landscape, just like wetlands.

Once that fundamental reconceptualization is made, the “new paradigm” for forestry falls into place.

Forests on public lands must be preserved.

Forests on private land must be strictly regulated. Any logging or cutting of trees must trigger mitigation and compensation requirements. Current subsidies and property tax breaks for any form of logging must be eliminated.

Outline of the New Paradigm

1. Public Forests:

• preserve what’s left
• abandon active management model
• abandon “young forest” myths on carbon and habitat
• abandon myths of wildfire prevention

2. Private Forest:

• Strict regulation (DEP land use, Highlands, plus)
• mitigation – for biomass
• compensation – for carbon, both stored and future sequestration
• tax breaks only for preservation, no more sham “Stewardship” tax breaks

3. Climate

• abandon thinning and young forest as sequestration
• afforestation – reforestation – maximize
• urban forestry – and funded – maximize
• no RGGI or carbon credit and trading schemes
• repeal regulatory incentives for solar and utility ROW & tree cutting program

4. Process

• public participation in forest planning
• repeal preemption of local reviews

End Note: In his discussion with Senator Smith, Elliott Ruga of the Highlands Coalition cited a controversial logging project, in a municipally owned forest in Roaring Rock Park, Washington Township, Warren County as an example of why forest protections are inadequate. Ruga focused on the fact that forest stewardship is exempt from DEP and Highlands regulations.

In his remarks – in which he surprisingly emphasized the need for strict regulation and focused on current regulatory loopholes – Elliott failed to mention the forestry exemption from STORMWATER regulations. That was no inadvertent oversight.

The local stormwater utility program that he and the Highlands Coalition spent a lot of time and money promoting – the 2019 law known as The Clean Stormwater and Flood Reduction Act – does not close these loopholes and INCLUDES those exemptions. That’s why Elliott conveniently failed to mention stormwater!

The reasons I bring that up now is to settle a score and warn people that there are serious competence and co-optation risks of relying on the Highlands Coalition to lead this battle.

The Category One waters stream buffer protections originated in the DEP stormwater rules as a BMP. I was involved in drafting those rules back in 2002.

I flagged the issues of lack of regulatory protections and exemptions for “forest stewardship” projects 6 years ago, and have been ignored, until Roaring Rock forced the issue

Years ago, I warned about the lack of regulation for forestry that would lead to the disaster discussed in Roaring Rock Park in Washington Township Warren County, see:

• Environmental Damage Of DEP Sparta Mountain Logging Plan Largely Unregulated

Those warnings went unheeded, even by groups like the Highlands Coalition.

Just thought I’d set the record straight on that history and warn about reliance on Highlands Coalition for leadership on these issues.

Senate Hearing Held Just One Week After DEP Public Debacle On GHG Emission Rule

Is This Legislative Oversight or The Typical Trenton Kabuki and Political Cover?

The Wheels Have Come Off  – The Spin Spell Is Broken

Humpty Dumpty sat on a wall
Humpty Dumpty had a great fall
All the king’s horses and all the king’s men
Couldn’t put Humpty together again

The Senate Environment Committee will meet on February 10, to consider the following:

On Feb. 10 at 10 AM in Trenton, the NJ Senate Environment committee will meet to hear testimony from invited guests on the impacts of climate change in New Jersey, & what actions the State is taking, & should take, to reduce its greenhouse gas emissions by 2050.

Say what?

It’s a little late in the game to be asking “what actions the State is taking, & should take, to reduce its greenhouse gas emissions by 2050.”

Scientists, policy experts, environmental groups, the BPU Energy Master Plan, and various DEP Reports and climate initiatives have been documenting climate impacts and recommending actions to reduce emissions for literally decades.

And notice that the question is asked only to “invited guests” – critics need not apply.

The Senate hearing comes just 8 days after the debacle exposed by DEP’s public hearing on proposed CO2 emission rules.

That DEP debacle exposed a total collapse by the Murphy DEP. For the first time, even NJ Spotlight was forced to report the reality behind 15 years of spin, and not just out of the mouths of the typical suspects, i.e. the marginalized radical critics, but a Rutgers professor.

NJ Spotlight reported: (“Disappointment, Outrage, Incredulity”):

David Hughes, a professor at Rutgers University, agreed, saying the DEP failed to protect lives endangered by the climate crisis. “You need to start over,’’ he told DEP officials, blaming them for favoring economic interests over tackling the climate crisis.

BOOM!

That DEP proposed rule and the public hearing exposed the sham of the:

• voluntary and aspirational goals of the Global Warming Response Act;
• Gov. Murphy’s Executive Orders; and
• Environmental justice legislation

Which forces obvious questions:

• Is Committee Chairman Bob Smith conducting legitimate critical legislative oversight to hold DEP’s feet to the fire and probe the legal questions of whether the GWRA goals are enforceable and the Act authorizes DEP regulatory authority to reduce GHG emissions to attain those goals, based on public testimony at the DEP hearing and the letter I sent him warning of the toothless GWRA and fatally flawed DEP rule proposal?

• Or is the Chairman conducting just another typical Trenton Kabuki dance to provide political cover for the Murphy administration and dampen growing criticism?

• Or is Chairman Smith providing a platform to the business community to back DEP off any future land use rule proposals now in the pipeline under the DEP’s REAL Climate PACT initiative?

Given that the testimony is limited to “invited guests” and Smith’s long history of Kabuki on the GWRA and climate issues, my sense is that Smith is trying to do damage control for the Murphy DEP and prevent Pandora’s box from opening any further (ie. exposure of the legal fact that the GWRA is toothless and the public has been duped for 15 years).

Given Smith’s long history of animus to DEP land use regulations (he was ordered by Gov. McGreevey to sponsor the Highlands Act), I assume that he also wants to send a message to DEP to back off any upcoming strict land use “climate adaptation” regulations DEP is calling the REAL initiative or PACT.

Time will tell.

But, as I’ve written, the green masks are off. 

The media smells blood in the water, the climate activists finally have begun to hit the regulatory nail on the head, and the credibility of Gov. Murphy and DEP’s sycophants has evaporated.

These realities will severely limit Chairman Smith’s ability to use his “invited guests” to provide cover.

And just as I predicted, the wheels are off – and the spell is broken:

All your magic and your ways and schemes
All your lies come and tear at your dreams
When the spell is broken
(Can’t cry if you don’t know how)
When the spell is broken.  ~~~ Bonnie Raitt version

Commission’s Ethics Records Are Exempt From OPRA and Secret Under NJ Ethics Laws

Is This Kafka-esque, Orwellian, Surreal, Or Absurd?

This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest. […]

I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted. ~~~ LBJ (1966)

If government is to be truly of, by, and for the people, the people must know in detail the activities of government. Nothing so diminishes democracy as secrecy. Self-government, the maximum participation of the citizenry in affairs of state, is meaningful only with an informed public. How can we govern ourselves if we know not how we govern? Never was it more important than in our times of mass society, when government affects each individual in so many ways, that the right of the people to know the actions of their government be secure. ~~~ US Attorney General Ramsey Clark

The Pinelands Commission just denied my request for public records for the ethics disclosure documents for two of Gov. Murphy’s new Pinelands Commissioners on the grounds that they were exempt from the NJ Open Public Records Act (OPRA) and confidential under the NJ Ethics Law.

I filed this request after being stonewalled by the Pinelands Commission’s Ethics Officer Stacey Roth.

I’ve also filed a request for ethics review to the State Ethics Commission, but they have invoked confidentiality restrictions and will not release any information publicly.

[Update 4/4/22: Almost as if to parody my prior reference to the CIA, I received this email from the State Ethics Commission today:

Hello Mr. Wolfe,

This will confirm the receipt of your most recent email. As previously noted, the SEC is in receipt of the information you provided. Unfortunately, I cannot provide you with any updates regarding the concerns you raised. This email nor any of my prior emails neither confirms or denies the existence of an investigation.

Mary Ann Keys, Esq.

Legal Specialist

New Jersey State Ethics Commission

She left out the part about “this email will self destruct in 10 seconds”!!! ~~~ end update]

It is a matter of public record that Gov. Murphy’s two new Pinelands Commissioners have extensive economic, employment, and political ties to powerful NJ corporations with interests in the Pinelands and that may come before the Pinelands Commission in the future.

Those relationships to private economic interests fit the definition of creating an “appearance” or potential conflict of interest that the ethics laws were supposed to have been designed to provide protections from.

So, after being rebuffed when the Pinelands Ethics Officer Stacey Roth rejected my voluntary request, I filed a formal public records request to the Pinelands Commission for the disclosure and recusal documents for new Commissioners Matos and McCurry.

(since I filed this OPRA request, I learned that Ms. Matos was appointed Chairman of the Pinelands Commission and more recently appointed to the NJ Legislative Apportionment Commission responsible for establishing electoral districts. Wow.)

Here is the Pinelands Commission’s denial of my records request: (emphases mine)

The Commission only possesses two documents responsive to your OPRA request, the Outside Employment  Questionnaires completed by both Chairperson Matos and Commissioner McCurry in accordance with N.J.A.C. 19:61-5.9. These documents, however, are excluded from the definition of government record in and are not subject to disclosure under OPRA. See 47:1A-10; McGee v. Township of East Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010); and New York Pub. Radio v. Office of the Governor, 2016 N.J. Super. Unpub. Lexis 1612, which held that Outside Activity Questionnaires, which are analogous to Outside Employment Questionnaires, are confidential and not subject to disclosure under the common law right to access, which is broader than OPRA.

Moreover, Outside Employment Questionnaires are considered confidential by the State Ethics Commission, and therefore, are not government records subject to public inspection, copying or examination under OPRA pursuant Executive Order 26 (McGreevey 2002), ¶4.d. As a result, your request for these documents is DENIED.

Wow.

It would seem that BOTH Commissioners are subject to NJ State Ethics regulations that mandate Situations where recusal is required ( 19:61-7.4)

And both Commissioner clearly are subject to the financial disclosure requirements of Gov. Murphy’s Executive Order #2:

Executive Order No. 2, promulgated by Governor Murphy on January 17, 2018, requires the annual filing of Financial Disclosure Statements (“FDS”) by certain designated State employees. These designated State employees are subject to the casino-related post-employment restriction of N.J.S.A. 52:13D-17.2(c). The Order also requires that designated special State officers file FDSs, including members of boards, commissions and authorities and the New Jersey members of designated interstate or bi-state agencies. Pursuant to section 21(2)(n) of the Conflicts Law, FDSs required to be submitted to the Commission by law, regulation or executive order must be made available to the public, promptly after receipt, on the Commission’s website. 

The entire purpose of State ethics laws are to promote the public’s trust and confidence in the independence and integrity of government servants.

That goal is accomplished, in part, via requirements that government officials publicly disclose potential conflicts of interest – including basic things like employment records – and recuse from participating in decisions that might reasonably be perceived to create a conflict of interest or impair impartial independent judgement.

So, how could these disclosures be exempt under OPRA and State ethics laws, as asserted by the Pinelands Commission?

Secrecy not only frustrates transparency and accountability, but it undermines public trust and confidence in government, which is the exact opposite of the objectives of both OPRA and State ethics laws.

Climate Rule Is Murphy/LaTourette Denouement

We Never Told The Truth For 10 Minutes In This House. ~~~ (Biff, watch full scene)

Words are inadequate – and I do not posses the talent with them – to describe the gravity of the moment.

The total collapse exposed during the Murphy DEP’s public hearing on a proposed lame greenhouse gas emissions rule rises to the tragic and only classic drama can convey the meaning (Cliff Notes version).

Even the NJ Spotlight story is unusually and brutally critical:

“DEP has squandered what will likely be the last opportunity we have to meaningfully reduce greenhouse gas emissions to avoid climate catastrophe,’’ said John Reichman of Blue Wave NJ. “The rules could have been written by the fossil fuel lobby.’’

LaTourette may soon be taking leave for more personal time with his family.

This about sums it up, metaphorically speaking:

I could never get anywhere because you blew me so full of hot air that I could never stand to take orders from anybody.