WolfeNotes.com

No Silver Bullet Can Replace The Hard Work Of Knowledge, Activism, Organizing, And Building Power

No Mention Of The Fact That Corporate Power Captures, Corrupts, & Dominates Government, Law, & Regulation

Activism, Individual Agency, Solidarity, & Collective Action – Not Fear, Despair, & Prozac – Are Solutions To Young People’s Legitimate Mental Health Problems In The Face Of Climate And Ecological Collapse

A Rights Based Litigation Strategy Is Anti-Democratic & Anti-Government Diversion From Necessary Political Work

“That’s not a loophole, its a policy choice” ~~~ Ray Cantor, NJ Business And Industry Association (3/7/24, testimony on SCR 43)

“Every word you are saying is being recorded. We have a court stenographer here. We’re going to provide a record of this hearing to all of the legislators …. so be careful what you say, …. it is being recorded” ~~~ Chairman Bob Smith warning to Maya Van Rossum, immediately after she requested an amendment to SCR 43 to include climate and urged NJ to become the first state where the Constitution “speaks directly – directly – to ensuring a safe climate for present and future generations.” (at time 1:10:15)

Part One

Let’s start with the (elephant) whale in the legislative hearing room:

The object of the hunt is a massive white whale, Moby Dick, which, in a previous encounter, maimed the ship’s captain, Ahab, by biting off one of his legs. The self-destructive fury of the quest, much like that of the one we are on, assures the Pequod’s destruction. And those on the ship, on some level, know they are doomed — just as many of us know that a consumer culture based on corporate profit, limitless exploitation and the continued extraction of fossil fuels is doomed. […]

Those who see where we are going lack the fortitude to rebel. Mutiny was the only salvation for the Pequod’s crew. It is our only salvation. But moral cowardice turns us into hostages. ~~~ “We Are All Aboard The Pequot” (Chris Hedges)

Yesterday, the NJ Senate Environment Committee held a hearing to take testimony on Senate Concurrent Resolution 43, to amend the NJ Constitution to provide various rights to a clean and safe environment. You can listen to the testimony here.

Listening to the testimony this morning validated almost all of the criticisms I have of my former environmental colleagues. They are lazy, cowards, opportunists, and simply can’t tell the truth. Let me offer just 3 examples:

1) The “green amendment” in Pennsylvania (enacted way back in 1971) was touted as a model, and the leading case cited was a 2013 Supreme Court decision that basically ruled that local governments could zone to prohibit fracking. That was a huge victory for anti-fracking activists.

That legal victory should have prompted a tidal wave of local government zoning ordinances to ban fracking across Pennsylvania. But that would require a LOT of good old fashioned grassroots organizing and lobbying of local governments. Sadly, that never happened – activists did essentially nothing with this huge legal victory.

But instead of that, take a look at what actually happened (source: Frack tracker)

(Caption: Figure 1. Part of a dense cluster of wells in Armstrong County and Indiana County

PASDA has another dataset of wells that has even more locations, 220,015 in total as of January 11, 2022.

2) Here in NJ, over 30 years ago (1990), clean water activists won a huge legal victory when the NJ Supreme Court killed a toxic ocean wastewater discharge from the notorious Ciba-Geigy chemical manufacturing plant in Toms River. The Court ruled that the DEP had failed to conduct a legally mandatory “anti-degradation review” during the permit process.

Again, that legal victory should have prompted hundreds of challenges to DEP water pollution permits, virtually none of which had conducted the required anti-degradation review the Court cited as the basis for killing the Ciba-Geigy DEP permit. And again, the NJ environmentalists did nothing with that huge legal win and they still do nothing with it. Yet anti-degradation policy was the basis of the DEP “Category One” waters 300 foot wide buffer regulations and the Highlands Act (but not because environmental groups demanded it – it was because I drafted those provisions of the Act!)

3) The final witness to testify was a teacher at Hopewell Valley Central High School (both my kids graduated from that school). She presented stunning data on the mental health problems of young people in the face of climate and ecological collapse, citing this study from The Lancet:

• Climate anxiety in children and young people and their beliefs about government responses to climate change: a global survey

Findings

Respondents across all countries were worried about climate change (59% were very or extremely worried and 84% were at least moderately worried). More than 50% reported each of the following emotions: sad, anxious, angry, powerless, helpless, and guilty. More than 45% of respondents said their feelings about climate change negatively affected their daily life and functioning, and many reported a high number of negative thoughts about climate change (eg, 75% said that they think the future is frightening and 83% said that they think people have failed to take care of the planet). Respondents rated governmental responses to climate change negatively and reported greater feelings of betrayal than of reassurance. Climate anxiety and distress were correlated with perceived inadequate government response and associated feelings of betrayal.

But this teacher seemed to believe that passing a Constitutional amendment – whose implementation would be totally reliant on expensive lawyers, arguing esoteric legal concepts, conducted in closed courtroom proceedings with no public input or democratic control, decided by one person (predominantly white, male, old and right wing) – was somehow the emotional salve to these mental health traumas!

The most effective psychological relief for this very real trauma and suffering of the children is LEARNING AND ACTIVISM! Learning, activism, solidarity, organizing, civic participation in governing, and collective action cultivate individual agency, empowerment, and build self confidence, not helplessness and despair.

As my good friend Bill Neil once wrote, we need “Citizens, Not Spectators”.

But the proposed SCR 43 totally defeats activism and civic engagement!

Another example of a totally misguided but well meaning person.

But I’m getting way ahead of myself. Lets get back to the testimony on SCR 43.

I wrote a critical set up piece last week, see:

• A Constitutional Right To A Healthy Environment: Radical Reform Or Just More Trenton Kabuki?

In terms of the hearing testimony, Ray Cantor, NJ BIA gets the quote of the day. He and other Big Oil and corporate lobbyists defended the corrupted status quo because he knows his corporate members own it.

No need to take my word for it, just read the scholarly work of Princeton political scientist Martin Gilens, who wrote:

Multivariate analysis indicates that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence. (“Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens”, 2014)

Or read another Princeton political scientist, Sheldon Wolin’s book “Democracy Incorporated: Managed Democracy And The Specter Of Inverted Totalitarianism”. Wolin goes into great detail to explain how democracy has been hollowed out and captured by corporate power.

But, unfortunately, the environmental groups backing SCR43 could somehow not muster the courage to tell these truths: the system is rigged, captured, and corrupt to the core.

Instead, they all pulled punches and tapped danced around by claiming that there were “loopholes” and “gaps”  and “unknown problems” in the current body of environmental law and regulation.

Before I get into writing about the hearing, we need to lay out some basic strategy considerations.

The real questions to ask are:

“how do we fix it?”

“How do we make government protect the public interest, not corporate interests?”

“What are the most effective strategies and tactics to build the kind of political power required to struggle against corporate power that has captured government and flip the script?

Corporations have lots of money, scientists, lawyers, and lobbyists. These highly paid professionals have created the framework of environmental laws and regulations currently in place and they have tremendous undue influence on the implementation of those laws and regulations, as well as the media’s coverage of those issues. Those are their strengths.

Corporations do not have public support. Corporations don’t have the facts, the science, and the public interest. Those are their weaknesses.

Environmental groups lack money, scientists, lawyers, and lobbyists that can remotely compete with the corporate resources. Those are their weaknesses. Environmental groups have strong public support and an ability to frame issues and generate media. Those are their strength.

History has shown that incremental reforms have been made by a combination of factors: activism and political organizing, media,

Part Two

So, let’s weigh those comparative strengths and weaknesses in light of SCR 43.

SCR 43 is a rights based litigation strategy.

That strategy relies on money, scientists, and lawyers. Those are corporate strengths and environmental weaknesses. Oh my: this one’s for you Janine Bauer

A decade after the Flint water crisis was exposed, the city’s residents still haven’t been compensated from the $626 million legal settlement. Meanwhile, the lawyers and the administrators have already received millions in fees…And Flint still doesn’t have clean water.

Litigation strategies do not lend themselves to public involvement. (to be continued … more to follow in Part Two coming soon)

Petition For Rulemaking To Upgrade DEP Surface And Groundwater Standards 

The Highlands Water Protection And Planning Act (Act) was a political compromise. In order to get a bill passed through the Legislature, Gov. McGreevey had to make concessions to local governments in the Highlands and to Republican Legislators.

The biggest compromise is the structure of the Act that divides the Highlands region into a “Preservation Area” and a “Planning Area”. That framework is political and has no scientific basis or land use policy rationale.

Both DEP regulatory protections and the Highlands Council’s Regional Master Plan (RMP) are mandatory in the Preservation Area but are voluntary in the Planning Area, where local land use plans and zoning control development.

The Highlands Act supplemented and is in addition to DEP’s existing statutory authority and regulatory standards. The Act did not block DEP regulation in the Planning Area.

The Highlands Act leaves the Planning Area virtually unprotected from over-development, despite the fact that the legislature found that “exceptional” natural resources must be protected by more stringent DEP regulatory standards (emphasis mine)

The Legislature further finds and declares that the New Jersey Highlands is an essential source of drinking water, providing clean and plentiful drinking water for one-half of the State’s population, including communities beyond the New Jersey Highlands, from only 13 percent of the State’s land area; that the New Jersey Highlands contains other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora, includes many sites of historic significance, and provides abundant recreational opportunities for the citizens of the State. […]

The Legislature further finds and declares that the protection of the New Jersey Highlands, because of its vital link to the future of the State’s drinking water supplies and other key natural resources, is an issue of State level importance that cannot be left to the uncoordinated land use decisions of 88 municipalities, seven counties, and a myriad of private landowners; that the State should take action to delineate within the New Jersey Highlands a preservation area of exceptional natural resource value that includes watershed protection and other environmentally sensitive lands where stringent protection policies should be implemented; that a regional approach to land use planning in the preservation area should be established to replace the existing uncoordinated system; that such a new regional approach to land use planning should be complemented by increased standards more protective of the environment established by the Department of Environmental Protection for development in the preservation area of the New Jersey Highlands; that the new regional planning approach and the more stringent environmental regulatory standards should be accompanied, as a matter of wise public policy and fairness to property owners, by a strong and significant commitment by the State to fund the acquisition of exceptional natural resource value lands; and that in the light of the various pressures now arrayed against the New Jersey Highlands, these new approaches should be implemented as soon as possible.

The DEP has regulatory authority to adopt land use and water resource standards that can strengthen protections in the un-regulated and vulnerable 400,000 acre Planning Area.

The legal basis for these standards pre-dated and is independent of the Highlands Act, so DEP can pull the trigger and adopt these stricter standards at any time, with adequate legislative policy findings, scientific basis, and formally adopted existing regulations.

Those State laws and regulations include: The Flood Hazard Act; The Freshwater Wetlands Act; The Stormwater Management Act, The Watershed Protection Act, The Water Supply Management Act, The Water Quality Planning Act, and the Clean Water Act (Water Pollution Control Act), including DEP adopted implementation regulations.

But the DEP is NOT using these regulatory powers and therefore is NOT protecting the Highlands from over-development and other destructive practices, like logging.

Therefor, in keeping with the intent of the Highlands Act and legislative findings of “exceptional natural resource” values (a term of art in DEP regulations),I am now drafting and will be submitting a petition for rulemaking to the DEP. The petition will demand the following more stringent regulatory standards be adopted in the Highlands Planning Area to protect “exceptional natural resources”:

• Upgrade all surface waters to FW 1 and/or “exceptional” Category One waters under the Surface Water Quality Standards;

• Upgrade all groundwaters to Class I-A “exceptional” classification under the Ground Water Quality Standards;

• Upgrade all wetlands to “exceptional value wetlands” under the Wetlands rules;

• Revoke the current 30 year old voluntary BMP Manual for Forestry and subject any forest disturbance or tree cutting (logging) on public AND private land to all DEP land use and water quality standards.

I am putting DEP on notice via this post in the highly unlikely event that they would like to preempt, take credit for, and announce these upgrades themselves.

Via this post, I also am seeking the support of the Highlands Coalition, Sierra Club, NJ Conservation Foundation, Environment NJ, NJ Environmental Federation, and all other State and local groups seeking to protect natural resources. I’m not holding my breath in wait for that.

We expect the petition to be filed soon and will post it when we do.

[Update: As it’s the 20 year anniversary of the Highlands Act, I reached out to the original sponsors I worked with for assistance:

Christie Abolished Governor’s Task Force on Public Health Emergency Planning

Christie’s first term Inaugural (Jan. 19, 2010 – Bill Wolfe)

In November 2022, current NJ Governor Murphy issued a press release that announced a review of the State’s disastrous COVID response, which caused and contributed to thousands of excess deaths:

TRENTON – Governor Murphy today announced the beginning of an independent review of the State’s handling of the COVID-19 pandemic, including the state of readiness in early 2020, and how the State responded to the many challenges that emerged over the last three years. The review, which will contain recommendations to enhance the State’s preparedness for a future public health crisis, will be conducted by a team at Montgomery McCracken Walker & Rhoads, in conjunction with the management consulting firm Boston Consulting Group. New Jersey is the first state in the nation to commission an independent and comprehensive review on the COVID-19 pandemic.

The review was to be released by the end of 2023. Media reports say that the private consultants will be paid $400 an hour.

So here’s some absolutely free grist for that investigation.

First, at the very beginning of the pandemic, I wrote to expose the State’s negligence, see:

• NJ State Officials Knew For Years That A Pandemic Could Cause Healthcare System To Collapse And 50,000 Residents Could Die

Second, just now in researching a completely different issue that had nothing to do with COVID, I came across this little bit of history that is almost certain to be swept under the rug.

In the wake of the September 11, 2001 terrorist attack and subsequent scares regarding the State’s public health emergency planning, preparation for an anthrax bio-terrorism attack, and overall ability to respond to public health emergencies, on January 14, 2002, Acting Governor Codey issued Executive Order #140.

EO 140 created a Governor’s Task Force on Public Health Emergency Planning (Task Force).

The Task Force was comprised of experts, including epidemiologists, infectious diseases, education and communication systems needed to respond to an emergency, and State Department of Health and Emergency Management officials.

The Task Force was directed to focus on NJ’s public health system, specifically with respect to responding to and “preventing epidemics”.

Here is the Task Force’s charge – note how each task is directly related to the current COVID failures:

3. The Task Force is charged with:

• examining the infrastructure of New Jersey’s public health system (at all levels) to determine whether New Jersey is ready to serve the public health needs of its citizens in the event of a future terrorist attack or other public health emergency;
• recommending a single definition of “public health” to allow the more than 600 boards of health and local health officials to coordinate their efforts and develop one coordinated public health system;
• identifying the statutory and regulatory steps that should be taken to address any issues and/or shortfalls identified;
• examining the relationships between local health officials and State health officials to determine whether there is adequate coordination and communication, whether the creation of county health departments is necessary and whether having approximately 525 boards of health and 115 local health agencies properly utilizes State resources;
• determining whether the following public health system principles are being met:
  
  1. preventing epidemics;
  2. protecting the environment, workplace, housing, food and water;
  3. promoting good health behaviors;
  4. monitoring the health status of the population;
  5. mobilizing community action;
  6. responding rapidly and effectively to disaster;
  7. promoting the quality, accessibility and accountability of medical care;
  8. identifying and reaching out to link high-risk and inaccessible people to needed services;
  9. conducting research to develop new insights and innovative solutions; and
  10. leading the development of sound health policy and planning.
      
• determining whether additional funding of our public health system is necessary;
• recommending changes to New Jersey’s public health system.
• leading the development of sound health policy and planning.
• 4. The Task Force shall issue a report in 6 months presenting its findings and recommendations to the Governor and both houses of the Legislature.

So, who dropped the ball here?

The Task Force was abolished by Gov. Christie’s Executive Order #40 (see paragraph #36).

How can a Governor abolish a Task Force without assuring that its work is complete and recommendations implemented?

I do not know if the Codey Task Force ever issued its Report to the Legislature and Governor.

But if they did, then subsequent Governors Corzine and Christie are responsible for failing to implement the Task Force Recommendations.

If the Task Force did not issue a Report, then Gov. Christie was reckless in not finishing the work and improving NJ’s health system, particularly with respect to infectious diseases.

[End note: because I got strong pushback from NJ people claiming that Gov. Murphy deserves the blame, let me clarify: nothing in this post was meant to absolve Murphy of any responsibility and nothing does. I’ve criticized his administration for failures, including the nursing home debacle and the liability relief lie he signed. But Murphy should have inherited a stronger public health system, had Christie and Corzine adopted reforms made obvious in 2001.]

Truck Fee Is A Bad Joke

Meanwhile, DEP Rubber Stamps Approvals And Voluntary State Plan Has Zero Impact

After 6 years of turning a blind eye to the explosion of growth of warehouses across the State, NJ Gov. Murphy is now seeking to monetize that massive policy failure.

NJ Spotlight reports:

Gov. Phil Murphy proposed a $1 tax for every truck movement and projected that the revenue would amount to $10 million for the state’s general fund. Part of Murphy’s fiscal year 2025 spending plan presented last week, the money would go toward alleviating the impact on traffic and roads.

Gov. Murphy’s Department of Environmental Protection (DEP) has sat on the sidelines and rubber stamped permits and approvals for millions of square feet of new warehouse development. This head in the sand approach has allowed warehouses to pave over unknown thousands of acres of NJ’s last remaining farmlands and forests, while dramatically increasing truck traffic, air pollution, greenhouse gas emissions, and exacerbating NJ’s massive flooding and water quality problems.

Heck of a job DEP Commissioner LaTourette.

Murphy’s State Planning Commission, and regional planning agencies in the Highlands and Pinelands, were ordered to stand down and do nothing to adopt enforceable plans and policies to slow warehouse growth and protect natural resources.

[Correction & clarification: The Highlands Council ED Ben Spinelli wrote to correct my error. Ben wrote (emphasis mine):

I read your post from this morning regarding the warehouse development issues in the state.  There was one inaccuracy.We are in fact moving forward with the adoption of Highlands-specific warehouse siting and design guidance as an update to the RMP. The public comment period runs through the end of the month. A link to the document is below. Any comments you might have on these standards would be welcomed.

Ben

https://www.nj.gov/njhighlands/master/amendments/warehouse_lucz/warehousing_policy.pdf

But I wrote that the Highlands and Pinelands were not adopting “enforceable plans and policies”.  The Guidance Ben refers to is not enforceable. Clarified but not corrected. ~~~ end update]

Now, after all that damage is done – and thousands or even millions of square feet of additional warehouse development in the pipeline – Gov. Murphy wants to cash out on that negligent land use and environmental policy.

The Gov. would impose what amounts to a development impact fee to fund the damage to local roads caused by increased heavy truck traffic. The huge warehouses themselves would not be effected.

There are at least 3 major problems with this approach:

First, towns already have the authority under NJ Municipal Land Use Law to collect impact fees to offset and finance the damage to local infrastructure like roads and pay for additional new municipal services required to manage new development (police, fire, utilities, etc).

A State impact fee diverts from these impact fee tools and lets town off the hook for their failure to impose such impact fees. A State fee also would discourage towns from imposing them and instead rely on the State.

Second, the magnitude of fee is pathetic and the $10 million it would generate is a drop in the bucket compared to the costs these trucks and warehouses impose on the environment, infrastructure, and local governments. And they are a pittance when compared to the billions of dollars in corporate and real estate profits generated by this warehouse boom.

Third, the Gov.’s plan would allocate the revenues to the State general Fund, where it would be diverted to other purposes and not dedicated to restoring the local damage caused by the warehouses and trucks. The State General Fund and the Legislative appropriations process would not be an effective way to offset local government costs.

And the causes of the warehouse sprawl problem, e.g. weak DEP regulations, lax DEP oversight, a voluntary State land use plan, and inaction by regional land use planning agencies with regulatory authority (i.e. Pinelands and Highlands) all go uncorrected.

A bad idea, that would make a bad situation worse, designed to cover up and benefit from policy failure, while failing to fix the underlying policy flaws.

It doesn’t get any worse than that.

And of course you wouldn’t’ know any of this by reading the NJ Spotlight story.

Even worse, Spotlight absolutely buried and obfuscated the DEP’s regulatory powers and failures – look at this:

[Rowan Professor] Hasse said the plan would have created 1.3 million square feet of impervious surface, increasing stormwater runoff. The site also borders so-called Category 1 waterways, designated by the state as of exceptional ecological value, and would be built on land that is home to several endangered bird species.

Gee wiz, I wonder what DEP is doing about all that?

Massive Loophole Explicitly Allows New Fossil Power Plants To Be Built

Existing Fossil Power And Fossil Imports Can Continue Operating Forever

The Bill Will Not Reduce ANY Greenhouse Gas Emissions

“You will never hear the Chemistry Council saying anything bad about the DEP. ” ~~~ Dennis Hart, Executive Director of NJ Chemistry Council (3/4/24 testimony to the NJ Senate Environment Committee on SCR 11)

Back in January when Senate Concurrent Resolution SCR 11 was posted for Committee consideration, I wrote Chairman Smith the sponsor to request amendments to make the bill actually reduce greenhouse gas emissions, prevent construction of new fossil plants, and phase out existing fossil (see the email to Smith below).

I knew Smith was not serious when neither he nor environmental groups expressed support or even replied to my suggested amendments.

There was no media coverage either.

But now, after an even lame SCR 11 was gutted, its safe for the media to cover the issue.

(the amendments were not even drafted when they were approved and still are not posted on the OLS website. Smith is over heard on live mike saying he just wants to get the bill out of committee, even though the amendments technically did not exist.)

I got a belly laugh but was not surprised to read today’s NJ Spotlight report that Smith had gutted his own lame bill: (NJ Spotlight)

But [fossil industry] critics argued the ban could threaten the reliability of the power grid, especially at a time when the state is moving to intermittent sources like offshore wind and solar energy. To an extent, Smith agreed, noting the bill was amended to allow new peaking gas-power plants, which often come online quickly during times when power demand strains the grid’s capacity to provide electricity. 

 A loophole that large swallows the entire SCR 11. Why even pass the bill if a loophole defeats the core sole purpose of the legislation?

I sense that NJ Spotlight reporter Tom Johnson had a smile on his face and enjoyed the humiliation served up to new Sierra Club Director Anjuli Busot-Ramos, who – just like DEP Commissioner LaTourette and NJ Spotlight editors – fails to understand the difference between misinformation and disinformation: (NJ Spotlight)

Both Ramos and Pringle also objected to putting the issue before voters, predicting a multimillion-dollar campaign by the fossil fuel industry to sway voters against the ban. “Our fear is we won’t be able to compete,’’ she said. “We don’t have millions of dollars to combat the misinformation.’’ 

Note how Pringle and Ramos rightly criticize the fossil industry but give Chairman Smith a pass for gutting his own bill in response to their criticism.

Remarkably, despite the fact that an already lame SCR 11 was competently gutted and will do nothing at all to reduce greenhouse gas emissions, un-named environmental groups still supported it!: (NJ Spotlight)

Several other environmental groups backed the resolution, however.

Now I have to listen to the testimony and be sure to name these idiots.

[Update: As I suspected, the corrupt cheerleaders at NJ League of Conservation Voters SUPPORTED this sham (at time: 1:10:00)

Dave Pringle’s opposition to the bill was based on economics, not climate science. He expressed a reliance on market forces to stop the construction of new power plants. Total Neoliberal BS – let the market solve the problem. He also opposed the bill because he was afraid he would lose the public debate and the voters would defeat the ballot question. He might be right that the fossil industry would spend millions on a disinformation campaign, but he revealed a disdain for the intelligence of the voters and no trust in democracy. And no confidence in his ability to win a public debate. What a tool.

Ms. Ramos’s testimony was even worse. She began with the outrageous claim that as a former DEP employee she could tell the Chairman that DEP has “great regulations on air toxics”. She then supported “clean hydrogen”. She misled about the impact of the new EJ law on permit renewals and modifications by implying that the EJ law could reduce greenhouse gas emissions and air toxics – she failed to note that the law did nothing to change current DEP air toxics standards, methods, technical manuals, cumulative risk standards, risks management, or air permitting regulations and that the law prohibits DEP from denying renewals and modifications of current permits.

Doug O’Malley was a no show and no other climate or environmental groups even testified.  ~~~ end update]

In the meantime, check out my request for amendment below.