WolfeNotes.com

“Let Us Go – Doubly Open – Into The Sea of Cortez”

A few weeks ago, we wandered upon a very cool scene in Port Townsend, Washington harbor.

A crowd had formed and there were several media cameras rolling – what was going on we wondered?

We happened upon a ceremony for the launch on John Steinbeck’s boat the Western Flyer, from his book The Sea Of Cortez! He sailed with marine biologist Ed Ricketts.

I love Steinbeck – when I was in Monterey (pics), I wrote:

Last night I opened The Log From The Sea Of Cortez (1941) and, after the homage to Ed Ricketts, was just blown away by the superb Introduction, one of the finest summaries on the scientific method and ways of seeing the world, thinking, travel, and living I’ve come across. Here’s an extended excerpt of that: (read full Steinbeck excerpt)

And his book Travels With Charley In Search Of America was an inspiration for my own travels with Bouy!

The restoration of the Western Flyer was a 7 year ordeal – you can read about it here. The Foundation also has a YouTube channel and there was a lot of media about the launch.

Some pics:

DEP Seeks To Narrow The “Compelling Public Interest” Loophole

DEP Makes A Basic Legal Error: Scope Of Regulation Contradicts Statute

To prepare for the public hearings on Murphy DEP’s proposed “Environmental Justice (EJ)” regulations, the NJ EJ activists have issued “talking points” to assist the public. (July 27 in Newark is final traditional public hearing. The written comment period is open until September 4, 2022).

Not surprisingly, those talking points are crap.

The activists just fail to understand that the flaws they criticize are created by the EJ law that they supported!

Activists highlight just one of the major flaws in the EJ statute that I’ve been writing about, the “compelling public interest” loophole.

The confused activists conclude:

If you remove the economic factors exclusion and make the compelling public interest clause broad in its application – you essentially create an enormous loophole that renders this landmark EJ bill a complete failure

They got one thing right: the “landmark EJ bill” is in fact “a complete failure.”

Here’s how the EJ activists describe that loophole: (emphases mine)

Compelling Public Interest

The law states that new permits for covered facilities in overburdened communities that contribute to the existing or new disproportionate pollution shall be denied. There is an exception for a compelling public interest in the host community when the facility primarily serves an environmental, safety, or public health purpose. This exception excludes economic considerations. This means that industry cannot use economic arguments to push through permits that contribute to pollution in overburdened communities. This part of the rule is very important because industries could use economic arguments to justify any permit application and essentially create a loophole in the rule.

I warned about the same loophole, when it mattered (i.e. before the bill was passed and before the Gov. signed it):

the DEP permit denial authority is destroyed by an “exception” – a huge loophole provision that allows DEP to waive the mandatory permit denial and issue the permit if a polluter claims that there is a “compelling public interest” for the industry or facility seeking the permit, even if there are disproportionate and unjust impacts.

But the EJ activists still supported the bill with that loophole.

So now, they flat out LIE about the compelling public interest loophole in the law that they supported.

The law does NOT “exclude economic considerations”.

The law does NOT require that “the primary purpose of the facility must be to serve an essential environmental, health, or safety need of the host overburdened community for which there is no reasonable alternative to siting within the overburdened community.”

That text is from the DEP proposed rule, not from the statute.

Here’s the text of the DEP regulatory proposal:

“1. The proposed new facility will primarily serve an essential environmental, health, or safety needs of the individuals in an overburdened community;

2. The proposed new facility is necessary to serve the essential environmental, health, or safety needs of the individuals in an overburdened community; and

3. There are no feasible alternatives that can be sited outside the overburdened community to serve the essential environmental, health, or safety needs of the individuals in an overburdened community.”

But compare that to the text from the law:

“except that where the department determines that a new facility will serve a compelling public interest in the community where it is to be located, the department may grant a permit that imposes conditions on the construction and operation of the facility to protect public health”

The law does not limit the scope of the compelling public interest.

It does not limit that interest to “essential environmental, health, or safety needs”, or “that no feasible alternatives can be sited outside the community.”

Just like DEP can not expand the scope of a legislative provision in regulations, DEP can not narrow one either.

Immediate grounds for a victorious NJ BIA/Chamber of Commerce/NJBA/NAIOP lawsuit.

Dennis Toft already has the briefs drafted and Ray Cantor has the press release ready to go.

Be warned: this is what happens when you negotiate a bad deal and compromise on essential principles, and then provide political cover for the politicians who sold you out.

[End Note: DEP Commissioner LaTourette, who signed off on the rule proposal, is a former corporate lawyer. So, I assume he is competent. If so, he may be sabotaging his own regulation to avoid accountability for a pro-economic development policy and mask flaws in the EJ law, and blame the business community.

Or he could just be incompetent, because this is a glaring and egregious basic legal error.

Have Sweeney’s Democratic Colleagues Moved Worker Safety Legislation He Supported?

I read NJ Spotlight’s story today about Amazon warehouse labor issues with interest.

I don’t usually get involved in labor issues, but I did in this case.

I brought a California bill [AB701] on warehouse worker safety issues to the attention of former Senate President Sweeney last September, and urged him to greatly expand his proposed legislation, based upon California legislation.

He agreed and wrote to thank me for bringing the legislation to his attention. In an October 11, 2021 email, Sweeney wrote: (emphases mine)

Dear Mr. Wolfe:

Thank you again for contacting my office to express your concerns regarding warehouse worker safety and sharing your support of Assembly Bill 4630 with the Governor.

I have reviewed the California warehouse bill, AB701, that you sent over. I think the bill will provide important protections for warehouse workers and I have asked my staff to look into how we could do a similar bill in New Jersey.

Thank you for bringing it to my attention.

Sincerely,

Steve Sweeney

Senate President

Sweeney responded to my September 27, 2021 email:

Senator Sweeney – thank you for your reply and for advising me of your support of NJ A4630 – I will reach out to Gov. Murphy’s office and urge that he sign the bill into law.

However, the NJ A4630 bill applies narrowly to just the public sector.

In contrast, the California legislation, AB701, applies directly to the private sector and addresses specific workplace protections, among other things, see:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB701

I urge you to review the pending California legislation and consider broader and more effective protections for warehouse labor.

Sincerely,

Bill Wolfe

It would be interesting to know if Sweeney’s Democratic colleagues have pursued the California model legislation he expressed support for. And did Gov. Murphy sign the flawed bill (A4630) I initially wrote Sweeney to criticize?

[Update – just did the research. On Nov. 8, 2021,  Gov. Murphy Conditionally Vetoed the bill because he thought it would hurt “small” mom and pop businesses. He made a lame bill even lamer:

It looks like the Legislature has not concurred with the Gov.’s CV and the bill its dead. ~~~ end update]

But how is it possible that a retired environmental activist – with no funds, no staff and no resources – living in the national forests in a bus can have more impact on the NJ Senate President than well funded NJ labor unions and labor activists? (including environmental and labor coalitions).

[End Note: I’ve been a longtime critic of Senator Sweeney so he had no use for me. This only further baffles me as to how I could secure his support for the California bill (and at a time his own lame bill was on the Gov.’s desk):

Massive 2.7 Million Square Foot Warehouse On Rural Farmland Pending DEP Review

Murphy DEP Has Gotten A Pass In Warehouse Controversy

I’ve been writing for a long time about how the media coverage and environmental groups are ignoring DEP’s role in review and regulatory approvals of the explosion of warehouse developments in NJ.

For example, last year, I flagged 6 warehouse projects seeking DEP regulatory approvals, see:

• The (Largely Ignored And UnRegulated) Implications Of Warehouse Development

Some were egregious abuses, see:

• Mansfield NJ – Corruption In Plain Sight

I even urged environmental groups to mount a statewide campaign to focus on DEP, see:

• The Final Frontier In NJ’s Long Running Land Use War

Media coverage has mis-portrayed the warehouse issue as primarily a “local home rule” concern.

But, perhaps in response to my strong criticism, some more recent media coverage has noted the State’s land use planning role, but not the DEP regulatory role, see:

• NJ Warehouse Sprawl News Coverage Finally Correctly Frames The “Home Rule” Issue

That lack of focus on DEP’s regulatory role could change as a result of a controversial proposed 2.7 million square foot warehouse on farmland in rural White Township (Warren County).

Finally, it looks like the environmental groups have woken up.

Maybe some intrepid reporter will do a deep dive into all the prior and current warehouses (and other major developments and new sources of greenhouse gas emissions) have been issued by the Murphy DEP under the radar, as the public was blinded by DEP press releases and environmental group cheerleading. 

(A recent critical news story suggests that the tide could be turning, however, and the Gov and his DEP may no longer receive a pass).

Here is the NJ Highlands Coalition’s action alert I just received:

A 2.7 million square foot warehouse project proposed by Jaindl is a huge threat to our environment and to the quality of life of residents of White Township and of this region of Warren County.

These warehouses will discharge over 40,000 gallons of wastewater directly into the ground every day, polluting the ground water of White Township and surrounding areas (where homes and businesses depend on wells for their drinking water), including the immediately adjacent Delaware River. The proposed site for the warehouses, entirely located on karst limestone, is also proven to be prone to sinkholes, and the traffic from the massive project would congest Route 519 and surrounding areas with over 1,200 tractor trailer trips and 2,800 employee vehicles generated every day, coming and going at all hours of the day and night, creating further polluted stormwater runoff and degrading the region’s air quality.

The White Township Committee has passed a resolution voting to deny the amendment to the Water Quality Management Plan being sought by the applicant, yet the developer, Jaindl, continues to pursue the project before the Planning Board and NJDEP.

YOUR VOICE COUNTS! MAKE IT HEARD!

You can help us tell DEP that these warehouses are a terrible idea and will destroy the region’s ground water quality and vulnerable environmental resources.  PLEASE ATTEND the upcoming virtual public information meeting that the New Jersey Highlands Coalition, Delaware Riverkeeper Network and Citizens for Sustainable Development will conduct in a webinar by zoom on July 27, starting at 6:00.  Learn how to comment and what to say to DEP at the virtual Public Hearing they will conduct to take place August 5, 2022:

Please click the link below to join the webinar:
https://us02web.zoom.us/j/82804969482?pwd=bld5bVRJSEJOMGN4eE5FSmp4ODg1dz09

Webinar ID: 828 0496 9482
Passcode: 812244
Or One tap mobile : +16468769923,,82804969482#,,,,*812244#
Or by phone: 646 876 9923

Let’s hope it’s not another case of too little, too late.

We’ll keep you posted.

NJ DEP Wildfire Program Should Undergo Similar Science & Public Review

NJ Law Eliminated Liability For Damages From Out Of Control Prescribed Burn

Prescribed Burn Science And Methods Fail To Consider Effects of Climate Change

Tahoe National Forest

NJ Spotlight just broadcast another misleading story about wildfires in the Pinelands.

So, instead of propaganda to mislead NJ residents with highly selective facts showing the benefits of wildfire and DEP’s prescribed burn program – based on “expert” sources with undisclosed gross conflicts of interest – we thought we’d provide important relevant facts they left out of the story and frame a counter-narrative to balance the bias in recent NJ Spotlight news coverage.

I)  Lack Of Expertise And Undisclosed Conflicts Of Interest

First of all, one of the “experts” in the story, Carleton Montgomery of the Pinelands Preservation Alliance (PPA) is not a scientist or expert, he is a former corporate lawyer. PPA has undisclosed conflicts of interest because they receive financial support from NJ DEP, they own land and conduct prescribed burns, and they benefit from recent radical changes to NJ laws that eliminated liability for damage from prescribed burns (a bill they supported). I don’t know his qualifications, but the “expert” from the NJ Conservation Foundation (NJCF) has the same undisclosed organizational conflicts of interest. Finally, NJ Spotlight has undisclosed conflicts of interest because the same Foundation (the Wm. Penn Foundation) that funds PPA and NJCF also funds NJ Spotlight.

What an ethical swamp.

II) Important Facts And Context Ignored

NJ Spotlight broadcast prior video of DEP Commissioner LaTourette’s PR campaign to promote DEP’s prescribed burn program. That kind of cheerleading is bad enough. But it gets much worse.

State officials – including DEP Commissioner LaTourette and Senate Environment Committee Chairman Bob Smith – have used western wildfires and the effects of climate change to justify flawed NJ forestry policies, including prescribed burns, “thinning”, and logging.

But they’ve refused to act on far less damaging and more effective common sense prevention strategies, like land use restrictions to limit development in high wildfire hazard areas and programs to fireproof buildings and manage residential properties.

And here are four huge relevant facts that were ignored in NJ Spotlight’s cheerleading coverage – inconvenient facts also ignored by the biased conservation “experts” :

1. While relying on western wildfires to defend their NJ DEP programs, State officials fail to mention that a US Forest Service prescribed burn project got out of control and caused the largest wildfire in New Mexico history.

There were “unforeseen risks” and “pressure” “led to taking greater risk”:

• New Mexico wildfire sparked by Forest Service after pressure to burn

2. State officials fail to mention that the US Forest Service prescribed burn science and methods failed to consider the effects of climate change.

Those science and policy failures were illustrated in New Mexico:

• US Forest Service admits ‘multiple miscalculations’ caused New Mexico fire

3. State officials fail to mention that New Mexico wildfire not only has scientific lessons for the DEP’s prescribed burn program, but it illustrates the very poor public policy adopted in passage of a recent NJ State law that eliminates liability for damages caused by a prescribed burn that gets out of control, like the USFS fire in New Mexico.

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.

Because hundreds of homes and properties were destroyed, the liability issue is front and center in New Mexico:

• The Government Set a Colossal Wildfire. What Are Victims Owed?

4. The Pinelands Commission is doing virtually nothing on climate – in reduction in emissions or adaptation – so of course cheerleading groups like PPA and NJCF ignore that in their analysis of wildfire, an issue driven by the climate emergency!

III)  Safety At Issue – Science And Policy Review Required

Here’s a Statement from the Chief of the US Forest Service on the New Mexico wildfire:

On May 20th I temporarily ceased all Forest Service prescribed burning nationwide as an immediate safety precaution due to continued extreme conditions. We are conducting a 90-day learning review of the agency’s national prescribed fire program.  Representatives from across the wildland fire and research community are evaluating the prescribed fire program, from the best available science to on-the-ground implementation. Wildfires are threatening more communities than they ever have.  Prescribed fire must remain a tool in our toolbox to combat them.  Unfortunately, the effects of climate change are narrowing the windows where this tool can be used safely.  This Chief’s Review of the Hermit’s Peak Fire, and the results of the 90-day prescribed burn program review, will help us learn what needs to change to be able to continue to safely use this tool in today’s fire environment. […]

I hope you will read the entire report to truly understand how this fire went from a prescribed fire, in which the employees involved followed all procedures and policies, to a fire that escaped its containment lines and became the largest wildfire in New Mexico’s history.

Did you get that? Safety is a huge issue:

Unfortunately, the effects of climate change are narrowing the windows where this tool can be used safely.

Here is a link to the full USFS Report.

See the above links to national press coverage – these are stories of direct relevance to NJ, but you somehow can’t read them in NJ outlets like NJ Spotlight or from conservation cheerleaders.

When it was first revealed that a US Forest Service prescribed burn was the cause of the NM wildfire and the USFS prescribed burn science, models, and programs did not consider the effects of climate change, I wrote wrote to warn DEP Commissioner LaTourette and Senator Smith to urge that they conduct a public scientific and policy review of the NJ DEP’s prescribed burn program, similar to the review currently ongoing by USFS. (see:

• NJ Legislators Asked To Repeal Liability Immunity For Out Of Control Prescribed Burn Wildfire Damage

It is likely that NJ DEP fire science, models, and programs share similar flaws to USFS. This could be made far worse in NJ by the elimination of liability for out of control prescribed burns.

I got no response to that request.

But, based on cheerleading by NJ Spotlight and DEP friendly conservation groups, it’s obvious that the LaTourette PR campaign is still ongoing.

[End Note: Based on feedback from Pinelands leaders, here’s a teaser for an upcoming post following up on the Governor’s assumption of control over the Pinelands Commission: It will be titled:

• No Spines In The Pines