WolfeNotes.com

Murphy DEP Coastal Management Program And Climate Adaptation Strategy Are Inadequate

Climate Chaos Or Planning – That’s The Choice

NJ Spotlight reporter Jon Hurdle gave the NJ DEP another huge pass today in a story on coastal high tide flooding, see:

• High-tide flooding more frequent at Shore, report says

In an incredible case of amnesia, Hurdle seems to have forgotten that just yesterday he wrote a story about how the State of NJ (both DCA and DEP) enacted a new policy that elevation of homes is not a sound flood management policy.

Without even mentioning any of that, today he wrote a story that says that: elevation is a sound strategy, that there is no immediate need to act, that there is no State government role or need to plan and regulate, and that people will somehow – passively and gradually and acting individually and voluntarily – simply come to accept the need to relocate: (NJ Spotlight story)

But he [Shope] said while people can buy time simply by elevating their houses, residents along today’s coastline will gradually come to accept that they need to move. 

They will be forced to move, either by being flooded out or by a rational State planning process. And not in some “gradual” way in the distant future – like maybe next week (and this data do not address flooding from hurricanes, storm surge, and extreme storms):

the mid-Atlantic region is expected to see as many as 15 high-tide flooding days during that period, a 350% increase over 2000. The mid-Atlantic and Gulf Coasts are due to be hit by the highest number of floods of any region, NOAA said in its Annual High Tide Flooding Outlook for 2023.  

But where will the displaced coastal homeowners go? Will there be adequate housing and infrastructure to accommodate them? How will all this disruption and transition be funded?

Climate Chaos or planning. That’s the choice.

But never mind any of that! DEP and State planning and regulation are invisible.

Hurdle again used the high tide flooding story to shift the focus of responsibility to local government’s land us planning, with no mention of DEP’s responsibility under State coastal CAFRA and federal coastal zone management laws – or the State’s responsibility to manage coastal hazards under the NJ State Hazard Mitigation Plan: (emphasis mine)

Shope said communities should become familiar with forecasts for sea-level rise when making their land-use and planning decisions. . …

At the end of the day, our coastal towns will need to deal with more high-tide flooding, so preparing emergency response plans and other planning practices that take into account more frequent flooding will help improve coastal community resiliency,” he said

The Murphy DEP also has a Climate Change Resilience Strategy and a Coastal Ecological Restoration and Adaptation Plan.

Those strategies and plans are woefully inadequate – an analysis of all that is beyond the scope of today’s short post, but maybe some intrepid journalist out there will read and report on them (and the toothless N Hazard Mitigation Plan).

(Ironically, the Christie DEP 2016 federal Coastal Zone Management Plan put the issues more sharply in focus:

• Christie DEP Report Outlines Devastating Impacts Of Climate Change On NJ Coast

Even worse than that, Hurdle used the story to undermine and delay the need for planning for “Strategic Retreat” and to do so right now:

Shope said the longer-term solution of retreating to higher ground is very unpopular along the coast because people don’t want to give up their beach houses and because of the economic and social damage that would result from communities gradually moving inland. …

“Retreat is not seen as a common adaptation strategy being implemented today because of the economic impacts and the high potential for a community to dissolve as its members move,” he said. “However, we will likely see that balance shift moving forward and, in many cases, the decision of retreat will be forced on coastal communities by the rising tide.”  

The future is now, folks. Adapt or die. Climate chaos or rational State planning and regulation.

Finally, Hurdle quotes longtime shore environmental group head Tim Dillingham of ALS, and he does so in a way that validates my criticisms about how the receipt of DEP grants tends to co-opt honest and aggressive advocacy to hold DEP accountable.

I sent Hurdle another note urging him to do better:

Jon – you gave DEP a pass again in today’s story.

DEP plans for and regulates natural resources and coastal land use under State law CAFRA – perhaps you need to read the law and DEP CAFRA regulations, see:

https://dep.nj.gov/wlm/lrp/coastal-zone/

DEP also has similar responsibilities under federal Coastal Zone Management Act,  including a Strategic Plan, read

https://www.state.nj.us/dep/cmp/

Tim Dillingham knows all this, so why doesn’t he criticize DEP or even mention this? He takes lots of DEP money.

Wolfe

Department Of Community Affairs Rejection Of Elevation Of Homes Contradicts DEP Flood Regulations

DCA Recognizes Climate Science – Takes Baby Step Towards Strategic Retreat Policy

On July 17, 2023, the Murphy DEP adopted new flood rules.

I strongly criticized those rules as deeply flawed and obsolete, see:

• Murphy DEP Flood Rules Are Full Of Holes And DEP Responses To Critics Are Based On Lies
• Current Rainfall And Flood Elevations Already Exceed DEP’s Obsolete Standards
• DEP Failed To Consider And Restrict Land Use In Flood Hazard Areas

The DEP openly admits that they have abdicated and violated statutory mandates (“shall”) to study, delineate flood hazard areas based on best available science, and regulate land use and development.

But the DEP flood rule got strong praise by environmental groups and NJ media, including NJ Spotlight, e.g. see:

• NJ uses climate projections to set new restrictions on development

The rule uses updated flood projections based on forecasts for a warmer and wetter future as a result of climate change. It requires the use of precipitation projections when calculating flood elevations; ensures that DEP permits for building in flood zones conform to construction codes and federal flood-insurance requirements and requires the use of best practices to manage runoff in current and future storms.

Now, just seeks later, today, NJ Spotlight wrote about a hugely significant new State policy on flood management adopted by the Department of Community Affairs (DCA).

The  new State policy prohibits the use of federal FEMA disaster assistance funds for elevating homes in Manville, NJ, see:

• NJ switches to Blue Acres buyouts in flood-prone Manville

This is a historic moment: The State of NJ finally recognized climate science and took the first baby step – in just one town, and with only federal money – towards a policy of “strategic retreat”. FEMA disaster assistance money can not be spent on elevating homes, only on buyouts.

That new DCA policy validates my criticisms of DEP flood rules and it directly contradicts DEP regulatory policy and the prior favorable reporting by NJ Spotlight.

Let me be specific: 1) DEP rules rely on elevation (not land use restriction). 2) DEP rules are based on the historical 100 year flood not actual flood elevations. 3) DEP rules fail to reflect climate science. 4) DEP fails to map known flood risk areas.

The DEP regulatory standards and policy directly contradict the DCA policy on buyouts. The DEP’s own statements and science cited in today’s NJ Spotlight story contradict the basis for their own regulations. Here are few bulleted excerpts from today’s story that illustrate those contradictions, e.g.

“The new policy, which so far only applies to Manville, is based on a recognition that elevation does not fully protect the most exposed homes” …

“Elevating these homes or the surrounding homes simply would not fully mitigate these types of dangers,” 

“many homes in unmapped floodplains are being impacted by severe storms and flooding”

“Past flood prediction tools are no longer sufficient,” the agency [DEP] said.”

The ‘new policy” and DEP statements directly contradict the entire approach and basis for the DEP’s flood rules and expose EXACTLY the flaws and criticisms I’ve long made of the DEP’s flooding program (e.g. inadequate flood mapping, technical standards reliant on the 100 year flood instead of climate science, limit to elevation instead of land use restrictions, etc).

NJ Spotlight not only fail to note the flat out contradiction on elevation and total DEP regulatory failure, the reporting effectively PRAISES the DEP (by noting the economic impact analysis of the rule and unnamed environmental group support of Blue Acres). Spotlight today merely said this:

In the 437-page rule, the DEP said the aim is to protect the public by recognizing current climate realities.

“The rules ensure the use of current precipitation data and reliable climate science to aid New Jersey communities in better preparing to confront climate change induced increases in the intensity of precipitation events and the resulting effects of additional stormwater runoff on stormwater management systems and flood elevations in fluvial areas. The rules incorporate climate-informed precipitation data to better align with current precipitation conditions,” it said.

Spotlight turned criticism into praise and missed the whole story.

That’s actually hard to do.

So let me bury the lead in this conclusion:

The new DCA policy on elevation in Manville exposes the literally fatal flaws of DEP regulations, which are Statewide in scope.

As a result, thousands of existing homeowners are at risk and don’t know it; thousands of homes will be elevated but remain at risk, and thousands of new homes built in unsafe flood prone locations allowed under DEP’s regulations.

The results of that will be more repeat flood claims, more flood destruction, more deaths, billions of dollars wasted, and more human suffering.

This could be the grandmother of all redactions.

I have never seen anything like this before in over 40 years of work on environmental issues. So I thought I’d post it immediately before I got through reading all the relevant documents.

The Murphy DEP redacted the names of specific cancers suffered by victims of chemical poisoning in Tom River NJ from the former Ciba-Geigy Superfund site (see above).

Why would DEP want to hide the specific types of cancers that victims suffered?

I can understand why lawyers for BASF would want to redact that kind information, as it would tend to help victims’ lawsuits.

But why would DEP want to keep that information secret?

Here is how DEP tried to justify this secrecy:

DEP claims that they are merely following the law and redacting “personal information” and “medical history”.

I strongly doubt that this was the intent of the law or what the law actually says (see Executive Order #26).

I doubt that legitimate concerns with personal privacy and medical history that are protected by law were meant to mask the types of cancers that victims suffer, diseases that victims themselves specified in public comments.

DEP is clearly abusing the law here, because merely redacting he name of the victim would adequately protect legitimate privacy concerns about personal information and medical history.

And the only party that benefits from that secrecy is BASF. So once again, DEP is protecting corporate polluters and covering up important information.

I came across this information because I was disgusted but not surprised when DEP recently finalized the sweetheart deal with BASF on “natural resource damages”. I was particularly critical of how DEP failed to respond to public comments. So I filed an OPRA public records request for all public comments submitted. see:

• Murphy DEP Stands By And Adopts BASF Sweetheart Natural Resource Damage Settlement At Toms River Ciba-Geigy Superfund Site

The public comments are extensive, over 500 pages. I am now wading through them and finding some astonishing things I did not know. This new information makes the DEP deal even worse than I had imagined. Some of the comments, especially from victims, are emotionally devastating.

I will write about that later, but for now I just wanted to put this out there.

Maybe some intrepid reporter might ask DEP to explain. Glad to provide the documents upon request. Or maybe a legal eagle out there can educate me on the law that applies here.

Walking Tour Of Elizabeth NJ Highlights Air Quality, Just Days After Biden EPA Folded On Ozone Standards

I’ve long argued that distribution of patronage grants and various forms of identity politics – including environmental justice – are cynically used by Democrats to co-opt environmental groups and are increasingly used as cover for pro-corporate and anti-regulatory policies.

To support those arguments, I’ve relied on the academic work of Professor Nancy Fraser regarding what she describes as “Progressive Neoliberalism”:

In its U.S. form, progressive neoliberalism is an alliance of mainstream currents of new social movements (feminism, anti-racism, multiculturalism, and LGBTQ rights), on the one side, and high-end “symbolic” and service-based business sectors (Wall Street, Silicon Valley, and Hollywood), on the other. In this alliance, progressive forces are effectively joined with the forces of cognitive capitalism, especially financialization. However unwittingly, the former lend their charisma to the latter. Ideals like diversity and empowerment, which could in principle serve different ends, now gloss policies that have devastated manufacturing and what were once middle-class lives. …

In place of the New Deal coalition of unionized manufacturing workers, African Americans, and the urban middle classes, [progressive neoliberalism] forged a new alliance of entrepreneurs, suburbanites, new social movements, and youth, all proclaiming their modern, progressive bona fides by embracing diversity, multiculturalism, and women’s rights. Even as it endorsed such progressive notions, the Clinton administration courted Wall Street. Turning the economy over to Goldman Sachs, it deregulated the banking system and negotiated the free-trade agreements that accelerated deindustrialization. What fell by the wayside was the Rust Belt—once the stronghold of New Deal social democracy, and now the region that delivered the electoral college to Donald Trump

Well today, an EPA Press Release provides a perfect textbook example.

EPA and Senator Cory Booker Celebrate the Power of Partnering with Communities in Elizabeth, NJ to Bring Environmental Equity

NEW YORK (August 25, 2023) – Join EPA and Senator Cory Booker on Friday, August 25, at 3:30 p.m. for a walking tour along 1st Street to see how EPA’s investments in overburdened communities in cities like Elizabeth, NJ are improving people’s lives. Learn how a $75,000 EPA grant helped Elizabeth monitor truck emissions near one of the world’s largest ports and discover how a $500,000 EPA grant will further help Elizabeth provide air quality data and education to its residents. The grants are part of the Biden Administration’s Investing in America and Environmental Justice initiatives. EPA is partnering with communities across the nation to ensure that everyone has access to clean air and a healthy environment. …

The EPA “walking tour” highlights “a $500,000 EPA grant will further help Elizabeth provide air quality data”.

In a case of very bad timing, the clean air “walking tour” comes just days after NJ Spotlight reported on the Biden EPA’s fold on Clean Air Act ozone standards, a move that repeated the Trump administration EPA’s failure to adopt stricter regulations:

Biden administration further delays adopting new pollution standard

…  The new delay was immediately assailed by clean-air advocates who have pressed the administrations of both presidents Biden and Trump for more stringent standards, all without success. 

“I’m disappointed in the rollback,’’ said Maria Lopez-Nuñez, deputy director of the Ironbound Community Corp. “When it comes to our community, there is always excuses; it’s never a priority.’’ …

Protecting polluters?

“This means tens of millions of Americans will be subject to unsafe air pollution for years to come,’’ said John Walker, director of clean air for the Natural Resources Defense Council. “The national ozone standard is not only outdated, but it was left unchanged by the Trump administration’s EPA which ignored medical science because it was more interested in protecting polluters than people.’’  …

“This is a step back for clean air in New Jersey,’’ said Doug O’Malley, director of Environment New Jersey. “With climate change, New Jersey will see more hotter days and more ozone days.’’ 

I hope the NJ press corps calls out Senator Booker on his cynical political stunt and asks him specifically about the Biden EPA failure to act on the ozone standards.

If this was a coincidence, then the EPA press office who scheduled this political event – likely at the direction of the Biden White House – has an embarrassing case of very bad timing!

Regardless, EPA should be criticized for once again politicizing EPA grant programs and promoting the Biden administration, another press event in an obvious national campaign to boost Biden’s fading ’24 Presidential electoral chances.

But I find the timing highly suspect – given the issue focus (clean air) and the environmental justice politics – and a likely effort to change the subject from the Biden EPA cave on ozone standards.

Critics Vindicated About Industry Influence On NJ DEP Science Advisory Board

I’ve been appalled by how over the last decades DEP has been pushed off course and effectively abandoned its original mission as a science based regulatory agency and been transformed into what is essentially a toothless finance, grant making, patronage, and public relations operation.

Sometimes I’m reminded of all that when I randomly come across old debates on DEP science and regulation. These echoes prompt me to do a little digging to see how my criticisms of things turned out.

I came across this revealing gem this morning about a 2009 debate over the DEP’s “Science Advisory Board” (SAB):

• N.J. environmental groups fear science panels will be pro-development (9/20/09)

…. Faced with ongoing budget cuts and staff reductions, [Acting DEP Commissioner] Mauriello contends the advisory board is a natural fit for lean times. He says it is premature to specify the issues he would tap the group to consider. But critics claim the board will be a tool for pro-development and industry forces that want to roll back tough pollution standards and circumvent the DEP’s own scientific staff.

“This thing was created because the science and research people inside the DEP are perceived at top levels as out of control because they did not let politics and the wishes of the administration get in their way of recommending such things as a tougher chromium clean-up standard in Jersey City,” said Bill Wolfe of Public Employees for Environmental Responsibility, or PEER.

Mauriello said he tried to defuse such suspicions through the wording of the May directive he issued to create the board. The work of the panel, according to the directive, would be “limited to specific scientific and technical issues” that the commissioner pitches its way, “not policy or regulatory matters.” Mauriello also said the board will report to the DEP’s staff of scientists, who are helping to select its membership.

“I respect the fears of the environmentalists,” Mauriello said. “But it can only be a good thing to have an independent group of scientists to look at what we do. The days of thinking we don’t need outside assistance are over.”

Let’s break that debate down in light of what has transpired at the DEP SAB during the intervening 14 years.

At the outset, it is important to note the history and context regarding DEP science and regulation.

The SAB was formed during a time of “ongoing [DEP] budget cuts and staff reductions” that had begun 15 years earlier in 1994 by the Whitman administration’s budget cuts and regulatory rollbacks.

Progress to restore damage caused by those Whitman attacks was made under the McGreevey administration in 2002 (e.g. the Category One stream buffer protection program, the Highlands Act, revived and greatly expanded Natural Resource Damage lawsuits, et al). But that progress spawned a furious backlash by industry and developers (particularly in response to DEP over-reach with the “Big Map” land use regulatory initiative). So DEP was under even more withering and sustained criticism by the regulated business community.

Six years later, the Governor at the time the SAB was formed, Jon Corzine, was a former Goldman Sachs Neoliberal and certainly no champion of DEP or environmental regulation.

The Legislature had just privatized the DEP toxic site cleanup program and replaced DEP staff oversight with a private contractor controlled program under the May 2009 “Site Remediation Reform Act”. That legislation thus explains Acting DEP Commissioner Mauriello’s vague remark that “The days of thinking we don’t need outside assistance are over.” That was code for privatization. Mauriello knew all about that kind of political abuse, see:

• Chemical Industry Lobbyists Met With DEP Commissioner Today

• This Is Why We Need Transparency at DEP

• Political Manipulation of Science – Jersey Style

The prior Jersey City toxic chromium controversy had spawned a DEP whistleblower’s dissenting Report and a crackdown by the DEP Commissioner on DEP scientists, including issuing a gag order and even blocking publication of DEP science in peer reviewed journals. “Out of control” DEP scientist and staffers wrote controversial memo’s about all that.

Shortly thereafter, in the Gubernatorial election of Nov. 2009, Chris Christie was elected Governor and his first action on his first day in Office was issuing 4 sweeping Executive Orders that established a regulatory moratorium, attacked DEP science and targeted regulation for rollbacks (see EO’s #1 – #4). Gov. Christie later nominated and the Senate confirmed a totally unqualified retired corporate consultant, Bob Martin, as DEP Commissioner. Martin openly sought to “transform” DEP to make it more business friendly.

Those facts are critical to understanding the political pressures on DEP scientists and regulators and the true origins and political objectives that drove the formation of the SAB.

So, let’s explore a few specific salient questions:

1. Was the SAB independent and free of industry representation, bias, and advocacy?

2. Did politics intrude and shape SAB science?

3. Did the SAB limit its role to “scientific and technical issues”?

4. Did  the SAB “report to DEP’s staff of scientists”?

5. Did the SAB engage the most pressing issues and advance the public interest or corporate interests?

The DEP SAB website provides evidence upon which we can answer these questions. This includes SAB membership and the 44 research Reports issued by the SAB.

I’ve also written many times about the SAB over these 14 years (e.g. see this and this and this and this).

I even successfully sued the DEP to obtain public records regarding the qualifications and background information on scientists that DEP was selecting for the SAB, see: (Star Ledger, 2/23/10):

• N.J. DEP must release names of 108 candidates for Science Advisory Board

So let’s respond to those questions:

1.  Was the SAB independent and free of industry representation, bias, and advocacy?

No. The evidence is clear.

Business and industry had several representatives appointed to the SAB and the DEP’s ethical standards on conflicts of interest and recusal did not prevent those scientists from participating in issues and SAB deliberations and Reports where they had biases and even conflicts of interest.

Here are specific examples of that:

• Murphy DEP Commissioner LaTourette Re-Appoints Dupont (1) And Corporate Hired Guns To DEP Science Advisory Board

• Corporate Members Of Murphy DEP Science Advisory Board Must Be Replaced

2. Did politics intrude and shape SAB science?

Yes, although documenting that is nuanced and complex, and the degree of politicization has varied over time.

But the SAB first recommendation Report on the DEP’s “Nitrate Dilution Model” and Assessment of the Median Nitrate Concentration Model for the New Jersey Highlands in Subwatersheds and Land Use Capability Zones are egregious examples of abuse, as they advanced the development community’s transparent attack on DEP land use regulation, water quality standards, and the Highlands Act’s septic density standard (which Christie DEP adopted rollbacks to).

Several other of Commissioner Martin’s charges to the SAB reflect political attacks on DEP science and regulation. Here’s another example:

• DEP “Science” Board Recommends Rollback of Groundwater Standard

For the typical kinds of industry attacks on DEP science and regulation, see also this Philadelphia Inquirer story:

• NJ bill could change regulation of drinking water contaminants

[…] Bill Wolfe of NJ PEER said that adding industry to the board would “set up conflicts of interests.”

He also said the bill would change the procedure the institute uses to determine risk, weakening its ability to limit contaminant levels.

“We’re in a very very complex area of science and regulation, and this is a sledge hammer,” he said.

You can see his two blog posts about the measure here.

Hal Bozarth, of the Chemistry Council of New Jersey, supported the legislation. He said that industry and commercial interests were “disenfranchised from participating in a process which affects them greatly.”

The Press Of Atlantic City also published a critical story on the SAB on October 28, 2010 (behind a paywall), which I discuss in this post.

On September 9, 2010, Philadelphia PBS affiliate WHYY also broadcast a critical story about SAB deliberations being conducted behind closed doors and not open to the public – I excerpt and discuss that WHYY story in this post.

So, this issue actually used to get media coverage – Sadly, that is no longer the case.

3. Did the SAB limit its role to “scientific and technical issues”?

No. The evidence is clear.

The large majority of the 44 SAB Reports specifically involved DEP regulatory policy, DEP regulatory standards, and DEP regulatory programs.

4. Did  the SAB “report to DEP’s staff of scientists”?

No. The evidence is clear.

The DEP Commissioner selected the issues the SAB would address. The DEP Commissioner issued the charge to the SAB that defined and constrained the SAB’s work. And the SAB issued Reports to the DEP Commissioner, not DEP science staff.

5. Did the SAB engage the most pressing issues and advance the public interest or corporate interests?

This is a more difficult subjective judgment, but in my opinion the answer is clearly no.

The SAB’s first 2016 Report on climate science was about adaptation, not climate science and/or the need for deep and rapid greenhouse gas emissions reductions:

NJDEP Charge Question: Which aspects of climate change should be considered at this point to be inevitable, and how should NJ best adapt to these? What additional studies are indicated to assess statewide vulnerabilities to global warming and sea level rise, and how can these studies be linked to adaptive land use management practices, open space protection, and resource utilization?