WolfeNotes.com

The Legal Stakes Are High 

Murphy DEP Determination Is Based On Flawed Reasoning And Weak Science

“Imminent” – about to happen

“Peril” ~~~serious and immediate danger

I have been perhaps Trenton’s most lengthy, consistent, and aggressive advocate of strong DEP regulatory power. But not in two recent cases of DEP “emergency rules”.

This summer, I strongly opposed DEP Commissioner LaTourette’s plan to adopt DEP flood rules via “emergency rulemaking” because, despite the very real climate emergency, the legal standard of “imminent peril” was not even close to being met and because as a matter of principle I strongly oppose government edicts that trample people’s Constitutional rights, no matter how well intentioned.

The DEP “emergency” power is tyrannical. It provides DEP with sweeping unilateral power to impose regulatory mandates and without any justification or public review and comment. As such, it eliminates Constitutional due process protections and is fundamentally anti-democratic because it eliminates people’s rights to participate in regulations that effect their lives. It should rarely be invoked and only on the strongest scientific and factual grounds that compelling demonstrate a real “imminent peril”.

The ends do not justify the means.

In addition to legal violations and principles, the DEP’s assertion of the existence of an “emergency” was a flat out lie.

Any risks to people from flooding that could have been reduced by the DEP emergency flood rule were created by DEP themselves. DEP delayed flood rules for YEARS, while they continued to issue hundreds of new permits for development in flood hazard areas, putting more people and property at risk. DEP had ample time and opportunity to go through the normal public notice and comment rulemaking process. The DEP may not base an “emergency” on conditions they created. By attempting to invoke “emergency” rules, DEP obscured these flaws and dodged public accountability, while trampling on Constitutional rights.

We have many of the same conditions present in DEP’s emergency declaration to authorize the bear hunt –

You can read DEP’s “emergency rule” that provides the scientific and factual basis for that declaration. Read Gov. Murphy’s Executive Order #310 – which is required by the NJ Administrative Procedure Act -that concurs with DEP’s declaration.

I hope the lawyers for the bear supporters do not get bogged down in the scientific arguments, unreliable data that supports DEP’s determination, and serious flaws in logic in DEP’s emergency declaration and Comprehensive Black Bear Management Plan (more on that in a future post).

I hope they can stay focused on the Constitutional due process issues and the statutory legal basis for declaration of an emergency, which requires DEP to document an “imminent peril”:

Absent “an imminent peril to the public health, safety, or welfare,” the APA requires public notice and an opportunity for comment before the adoption of any rule. See N.J.S.A.52:14B–4. (NJ Supreme Court)

The NJ corporate business community strongly opposed DEP’s plan to adopt emergency flood rules. In a letter to Gov. Murphy, they clearly threatened litigation if DEP were to invoke emergency powers.

If this DEP emergency declaration is allowed to stand, the business community knows that they might be the next target of DEP emergency rules.

For example:  To support an “imminent peril” determination from bears, DEP used: 1) unreliable data (not independently verified, no QA/QC); 2) statistically inferred or interpolated population estimates that deviate from prior methods (due to lack of data); 3) questionable and unpublished science; 4) non-transparent and non-validated models; and 5) non-published and non-peer reviewed Reports and a slew of studies.

The DEP rule didn’t even provide the underlying data, population models, and citations to or links to supporting science.

In terms of the reliability of the DEP “bear incident data”, could you imagine if you and your neighbors could just call a DEP hotline and complain about air pollution and DEP would then declare an “imminent peril” and ratchet down on air quality standards and permit regulations based on your phone calls?

All of this is anathema to good science and regulatory policy.

All these flaws have long been alleged and used by the business community to attack DEP regulations, science, and risk assessments.

DEP then relied very heavily on projected fertility rates, projected huge growth in the bear population (27% over 2 years!), and projected future human-bear conflicts as the basis for an “imminent permit” finding.

By definition, a condition that is projected to occur in the future, can not possibly be “imminent”.

Logically, DEP assumed that bear population was the primary if not sole driver of human – bear conflicts. They ignored a lot of published science that demonstrates that access to human food (garbage, bird feeders, pet food, baiting, feeding, etc) significantly impacts bear – human interactions – spatially and numerically – and conflicts. DEP also repeated prior false claims about compliance with bear safe garbage storage in bear country.

The DEP logic would be like a transportation safety expert, in 1960, projecting huge increases in the number of cars, expansion of roads, and increase in vehicle miles travelled to then base a projection of increases in highway fatalities, without considering the impacts of seat belts, which tremendously reduced fatalities!

If this DEP declaration becomes the legal standard for the data, science, projections, and models to support “emergency” rules, then DEP can get away with virtually anything.

Let me suggest a hypothetic example:

1. There is good data on current adverse health effects of air pollution: heart attacks, strokes, respiratory distress (asthma, hospital emergency room visits, etc), particularly in urban areas.

2. There is good science on the relationships between air pollution levels and temperature, particularly during hot summer bad air days (ozone and fine particulates).

3. There is solid science and models that project significant increases in the number of extreme heat days, due to climate change.

4. Based on #1 – #3, suppose DEP projected an increase in adverse health effects associated with climate change, warmer days, and higher air pollution levels, and then used that projection (along with current data) to declare an “imminent peril” to public health and adopt emergency rules that required that major source of air pollution shut down operations during summer months or extreme heat days?

Can you see where this is going?

I could provide numerous examples.

Environmentalists also must beware because the DEP “emergency power” can also be used to roll back regulations.

We already saw that in the wake of Superstorm Sandy, when the Christie DEP declared an emergency to roll back DEP solid waste transport and disposal requirements, CAFRA, and other DEP infrastructure permit requirements.

DEP could also roll back air and water pollution regulations in an “economic emergency” (public welfare is included in the definition of “imminent peril”). We’re already seeing that in Europe, as the energy situation resulting from termination of Russian gas is forcing dirty old coal power back on line.

This DEP rule must not be allowed to become the standard for science and law. Period.

More of the details on DEP’s science and data flaws in a future post.

Preserved Green Acres Lands Targeted In DEP “Hot Topics” Proposal

[IMPORTANT Update Below]

Just days after Governor Murphy spurred public outrage over his betrayal of his “commitment” to stop the bear hunt, the Murphy DEP just grabbed the third rail of NJ’s Green Acres conservation legacy with both hands!

The Murphy DEP just floated an outline of plans to privatize, commercialize, develop, and even expand logging of State lands, including Green Acres.

Repeat: DEP is actually considering plans to destroy Green Acres lands.

This outrageous move by DEP – which is certain to prompt another round of public outrage when the public finds out about it – comes after horrible plans to log Pinelands forests and expand logging on Sparta Mountain.

The DEP proposal is so absurd on its face that I actually initially thought it was a hoax.

It goes far beyond and is worse than the Christie administration’s horrible “privatization” and revenue generation plans for State lands, most visibly displayed in the huge battle over Liberty State Park.

Has DEP lost their minds? How is it possible that something like this could be issued by DEP as a serious proposal? Is anything sacred?

Are there no issues that are off the table? Is everything up fo grabs?

The DEP Green Acres revisions were distributed in a “Dear Partner” letter to the conservation community seeking “Stakeholder” meetings on Green Acres program revisions.

The November 17, 2022 DEP letter attached a “Hot Topics” proposal for revising the hugely popular Green Acres land preservation program and regulations.

Notably absent from DEP’s issues for Stakeholder discussion were common sense science based necessary new initiatives, like afforestation (expanding forests), increasing urban forestry, addressing the climate emergency, addressing environmental justice, and collecting market based revenues from existing leases and concessions on public lands.

For today, just to get the word out and let the public know what’s going on, here are just some of the more outrageous proposals in that DEP “Hot Topics” trial balloon – we will discuss the individual proposals in future posts.

The DEP puts the objective right up front – and it is very clear it is about “allowing” uses of public lands:

What considerations should govern whether, and in what circumstances, NJDEP should allow the following types of uses on parkland:

Here is what DEP wrote(emphases mine):

What considerations should govern whether, and in what circumstances, NJDEP should allow the following types of uses on parkland:

• Restaurants/Food Service Vendors
• Limit to certain types of venues such as marinas and golf courses?

When are these uses amenities as opposed to operation of commercial businesses on parkland?

• Event Space (particularly for weddings, but also indoor event spaces)
• Overnight parking
• Flood control facilities
• Green infrastructure
• Leasing of Parkland

How can NJDEP improve its oversight of the leasing of parkland, while protecting the public interest and natural resources?

Are changes needed to NJDEP oversight of farm leases on parkland?

• CSAs (community supported agriculture)
• Greenhouses

How can NJDEP better articulate the criteria for use of historic buildings on parkland?

Bond counsel review requirements for leases of bond-funded parkland by commercial entities

Hunting-–Although hunting is not required on Green Acres encumbered parkland, where it is allowed, how can OTPLA ensure that hunting privileges are administered fairly?

Small Scale Solar Projects on Parkland—Should NJDEP allow small scale solar projects on parkland to support the State’s clean energy goals and provide revenue for park maintenance?

Forestry

What constitutes “forestry” on parkland?

Should forest stewardship plans be required when forestry management is undertaken on parkland (as opposed to woodland management plans or other types of plans)?

How to address tree removal by utilities?

Tree compensation requirements for disposals, diversions and temporary use of parkland

How can NJDEP Improve the Diversion/Disposal Application Process?

DEP is sure to have created a hornets nest of controversy with this trial balloon.

I’m predicting that these “Stakeholder discussions” will be nixed as a result.

If the “conservation community” can’t reject this DEP trial balloon out of hand and instead engages in the DEP “Stakeholder” process, they are worse than lame.

[Update: We suspected that lame NJ conservation groups would participate and play the inside DEP Stakeholder game. As suspected, we just were made aware of that fact.

Check out Julia Somers, Highlands Coalition, email distributing the DEP invitation to local groups who DEP had shut out.

Julia clearly was aware of this DEP initiative and she failed to raise a red flag and warn her own member groups, never mind alerting the press and warning the public about these threats to Green Acres lands. Yet this clueless idiot is “surprised” to learn the people were pissed off. Look how she points the finger at DEP’s failure to “publicize the LAST of these meetings” (which means Julia was aware of PRIOR meetings!

Julia was distributing this DEP email invitation:

So, now the lame conservation community will sit around the table negotiating the fate of public Green Acres lands, with absolutely no public awareness or participation!

Who the hell do these people think they are? They don’t own the public lands!

We know how that always turns out. After months of meetings, they will mount a campaign AFTER THE PUBLIC FINDS OUT AND AFTER DEAL IS DONE.

Despicable.

Sparta Mountain Wildlife Management Area gets a DEP “seed tree treatment” (clearcut)

The Murphy DEP just issued a very troubling edict to the public, especially the local opponents of logging who have monitored and photographed prior DEP logging operations  – who DEP insults as “spectators” – stay the hell away:

For safety reasons, starting November 16, 2022 one parking area, a small portion of Sparta Mountain WMA and parts of some trails will be temporarily closed to the public. …

NJ Fish and Wildlife regrets having to close the area off completely. During previous activities spectators, set upon continually entering the work area and disregarding posted signs, have created significant safety concerns. 

“Safety” my ass!

The DEP doesn’t want the public to see and document what they are doing, so they simply closed the area.

This is an outrageous move that is worse than the clearcut logging they cynically call “seed tree treatment”.

The DEP provided just 2 days “notice” to the local community and users of the Sparta Mountain Wildlife Management Area. That certainly is not the way to protect public safety. Far more advance warning would be required to legitimately keep hikers and birders and other uses safely away from logging and road construction operations.

DEP will build a new access road and clearcut another 10 acres of core hardwood oak forests in the heart of the NJ Highlands, a forested region protected by the NJ Legislature and DEP regulations, ironically in order to preserve the last remaining large blocks of forests and maximize the canopy cover.

Sparta Mountain forests are ecologically rich and provide habitat for over 75 interior bird species, according to the US Forest Service Highlands Report that led to passage of the Highlands Act. The Area is designated as a Natural Heritage Priority site under DEP regulations.

The public paid to preserve Sparta Mountain, not to surrender it to the loggers and trophy hunters and DEP bureaucrats:

• Sparta Mountain Is Public Land, Purchased with Green Acres Funds

The DEP move spurred howls of outrage from local residents, NJ Forest Watch, and the Highlands Coalition.

Our group NJ Forest Watch for the last 6+ years has been documenting the ecological harm that is occurring on our NJ public lands by the removal of public lands timber and we would like to encourage the department who is supposed to protect our natural resources, to honor our request and suggestions in altering your plans.  This area should be avoided as it is close to the Edison Bog area and is entirely a Natural Heritage Priority Site, where over 130+ Rare, Threatened/Endangered and Special Concern Species have been documented.  Species like the Red-shouldered hawk, a NJ State Endangered species and the State Threatened Barred Owl reside in this area, of which logging the forest will destroy their habitat.

The NJ Highlands Coalition also blasted DEP for the move and issued an “Call to Action – Stop New Logging On Sparta Mountain” to their members and the public:

Just yesterday the New Jersey Department of Environmental Protection issued a notice that a new logging project is scheduled to begin at Sparta Mountain – TOMORROW! Receiving two days’ notice for a major project that has impacts to over 6 million New Jersey residents’ drinking water is unacceptable!

What concerns us the most is just what an extraordinary area this site is for diversity of wildlife. It is a Natural Heritage Priority Site – meaning it posseses the highest diversity of flora and fauna in need of protection – and it has an unmarked vernal pool and C1 waterways with high quality water that feeds the Passaic River and provides NJ residents with clean drinking water.

To get to this logging stand, loggers will need to cut a road so that mechanized harvesting equipment and tractor trailers can access the deepest parts of the forest, where the largest trees grow that store the most carbon, and provide the greatest resilience against climate change.

The Murphy DEP has gone off the rails.

USGS Study Found Logging Caused “100% Trout Mortality” In Nearby Catskills

Council Ignores Science Compiled In US EPA Water Quality Criteria

Council Abdicates Its Legal Authority And Responsibility To Protect Natural Resources

In record speed (suggesting little if any scientific inquiry, data analysis, or deliberation), the Highlands Council just denied my petition for rulemaking designed to close loopholes in the Highlands Regional Master Plan (RMP) and protect trout from potential toxic effects of logging and the development that disturbs forests and soils. (hit this link to read the Council’s Public Notice and denial document)

I filed the petition after I read a US Geological Survey (USGS) study on the ecological and water quality impacts of logging in the nearby Catskills mountains of New York, to read that study, see:

The Council also alluded to but failed to include the text of a very recent email to me from the USGS lead scientist on that research report regarding whether the USGS Catskills findings are applicable to NJ Highlands forests and streams, so here that is:

The US EPA recently updated federal water quality standards under the Clean Water Act to adopt a new criteria for aluminum, so I also jointly petitioned the NJ DEP to update NJ’s State surface water quality standards to include the EPA criteria. NJ’s current water quality standards do not include an aluminum standard, see:

• FINAL AQUATIC LIFE AMBIENT WATER QUALITY CRITERIA FOR ALUMINUM

The DEP issued a public notice in the November 7 NJ Register accepting the petition and it is currently under DEP review.

This is bullet proof work, and the Council did not even attempt to challenge it.

The Highlands Council and the DEP have overlapping legal authority and responsibilities to protect water quality, natural resources, and forests of the Highlands.

Interestingly, the Council’s rejection of the petition did not claim that the USGS science was flawed or that the USGS findings on logging and trout mortality did not apply to the Highlands region or were not appropriate for the region.

The Council also did not claim that the petition was not necessary because the RMP adequately addressed the problem, thereby implicitly admitting a huge loophole in the RMP regarding forestry and water quality impacts.

The Council also did not claim that they lacked legal authority to respond to the petition and amend the RMP accordingly.

Nor did they claim that they could rely on the DEP’s water quality standards, which also fail to regulate forestry practices and aluminum toxicity.

The Council did not claim that they had data on forestry and water quality and ecological impacts and had examined the issues.

The Council’s rejection even agreed with the objectives of the petition.

But they misconstrued my petition – which explicitly was based on the authority delegated to the Council by the Highlands Act and sought amendments regarding land use and forestry practices under the RMP.

The Council falsely implied – but did not claim – that this was a DEP issue. The Council wrote:

The Highlands Council denies this Petition for rulemaking. While the Highlands Council agrees with Petitioner regarding the importance of protecting the ecological health of New Jersey’s water and natural resources, the agency has determined that a rule change is unnecessary. Petitioner has essentially asked the Highlands Council to regulate and amend New Jersey’s surface water quality standards through amendment of the RMP; as a baseline issue, regulation of surface water quality standards falls under the authority of the DEP, not the Highlands Council.

This is completely false and misleading. Again, my petition cited authority under the Highlands Act and the forestry, land use, and other regulated activity under the RMP. The Council does not deny that authority. But note the weasel words “essentially” and “baseline issue” they use to imply that they lack authority to act.

This is flat out false.

Here is specifically how I petitioned the Council to amend the RMP for activities they regulate under the Highlands Act and RMP:

Amend the RMP to require monitoring and compliance with the EPA’s Final aluminum criteria cited above for regulated activities that disturb soils, generate stormwater, and/or result in point and non-point discharge of pollutants to wetlands and surface waters, including development and forest management activities.

Basically, the Council – despite being made aware of USGS science and a federal US EPA water quality standard that showed alarming potential negative impacts to trout fisheries from logging and land development that were not addressed under the RMP – just openly failed to act.

This is an incredible abdication of their legal duty to protect NJ’ Highlands forests, natural resources, and water quality.

We’ll keep you posted on how DEP responds to the petition.

It should be more difficult for DEP to deny it, because it is based on US EPA’s federal aluminum criteria and US EPA funds and legally supervises NJ’s water quality standards program.

[End Note – I could not find assessment of the impacts of forestry on water quality (or rainfall pH, soil chemistry, stream chemistry, aquatic ecosystems, and aluminum toxicity potential) in any of the technical support documents for the RMP. See if you can.

The Highlands Regional Master Plan is accompanied by the following technical reports:

• Air Quality Assessment Technical Report
• Ecosystem Management Technical Report
• Financial Analysis Technical Report
• Highlands Regional Build Out Technical Report
• Historic, Cultural, Scenic, Recreation and Tourism Technical Report
• Land Preservation and Stewardship Technical Report
• Land Use Capability Zone Map Technical Report
• Local Participation Technical Report
• Regional Land Use Conditions and Smart Design Guidelines Technical Report
• Sustainable Agriculture Technical Report
• Transfer of Development Rights Technical Report
• Transportation System Preservation and Enhancement Technical Report
• Utility Capacity Technical Report
• Water Resource Assessment Technical Report – Vol. 1
• Water Resource Assessment Technical Report – Vol. 2

False Hope Leads To Frustration That Just Disempowers People

Activists Still Fail To Tell The Truth About Flawed EJ Law They Supported

Another Pass For Murphy DEP Regulatory Delays

A friend just forwarded me an alert from Dave Pringle on behalf of Empower NJ climate and environmental justice (EJ) activists regarding public hearings on renewal of the DEP air permit for the Newark Covanta garbage incinerator and a zoning board hearing for a proposed sludge incinerator

Empower NJ Activists — Don’t let polluters that profit from damaging environmental justice communities and destroying our climate beat the clock. They continue to push at least 5 projects that target Newark’s Ironbound and downstream communities (Kearney, Hoboken, Jersey City, Hoboken, et al.) — 2 had hearings last week, and another 2 have hearings in the next 48 hrs. Talk about overburdened!!!

Please sign up to testify at virtual hearings on:  * Covanta’s existing garbage incinerator tomorrow night (Wednesday, November 16th at 6 pm); and Aries’ proposed sludge facility the next night (Thursday, November 17th at 6pm).

Empower NJ in alliance with EJ leaders (Ironbound Community Corp., South Ward Environmental Alliance, NJ Environmental Justice Alliance, et al.) are opposing these polluters’ efforts to gain approval for permits before NJ’s landmark law to protect overburdened communities goes into effect in 2023. We can’t let that happen!

Sadly, our EJ advocates have become incapable of telling the truth. Sadly, they supported the new EJ law, despite its major flaws and they can not now admit that.

The fact is, even if these facility permits were reviewed under the new environmental justice law, it would change nothing. That law did NOT make any changes to how DEP actually evaluates and issues air permits (i.e. the DEP risk assessments, air dispersion models, technical manuals, standards, and air permit regulations). DEP will continue air permit business as usual and continue to conclude that these facilities pose “acceptable” risks to public health and meet all applicable regulatory standards.

And the EJ law has a HUGE “compelling public interest” loophole designed exactly for these kinds of facilities. If you’re interested, see:

• Murphy DEP Attempt To Close Huge Loophole In Environmental Justice Law Is Doomed To Failure

I sent the following note in reply to Pringle (which included the above criticism):

Dave – a friend forwarded your alert.

Your alert is misleading and not a service to the EJ community.

By giving false hope, you are manipulating and only setting these people up for disappointment instead of empowering them as activists. And you are protecting the Gov., Legislators, and the DEP who passed such a flawed and cynical EJ law. Specific misleading content includes:

1. Aries is a zoning board hearing – the EJ law does not even apply. (and you fail to tell the community that the provision that would have authorized local governments to veto DEP permits was stripped out of the introduced version of the EJ bill the Gov. signed into law!)

2. The Covanta hearing is for a permit renewal. The EJ law does not provide authority to DEP to deny a permit renewal, it merely allows DEP to impose permit conditions, e.g. mitigation. Perversely, this actually protects existing polluters from permit denial. And we know how Ironbound views “mitigation” from prior political deals on permit renewals. (see “community benefits”, page 43-45) It’s a shakedown operation, not an EJ or air quality or public health or climate “mitigation” scheme. Where’s Senator Booker? Will you join his press release declaring “victory” again when DEP issues the renewed permit? (NJ.com story)

“The Christie administration and Newark Mayor Cory Booker both lauded the move.

“Nothing is more fundamental to our wellbeing than the air we breath,” Booker said in a statement. “As a strong advocate for this upgrade, I am proud to be celebrating today’s major achievement with Covanta and everyone else who made it possible.”

3. “Beat the clock”? There is no clock. This is a diversion from criticizing the DEP for delay in proposing and adopting EJ regulations to implement the law.

The original version of the bill included a requirement that DEP adopt rules in 180 days. That was stripped out and deadline removed. (see Section 4.a.) 

The Gov signed the bill on September 18, 2020, so DEP rules would have been adopted in April 2021. EJ people got so played.

4.The EJ law goes “in effect in 2023”? FALSE. The law was in effect on the Gov.’s signature into law (See section 6 – “This act shall take effect immediately”). It’s the implementing DEP regulations that are not in effect. The fact that it does not apply to the Covanta permit is due to DEP delays in adopting rules.

5. Why is Covanta running a DEP public hearing? Why do I have to supply my email address and personal info to Covanta to speak at a DEP public hearing? You should be blasting this abuse and abdication by DEP.

6. Your demand for Covanta, and all still operating dinosaurs incinerators should b SHUT THEM DOWN NOW!

• Time To Shut Down NJ’s Highly Polluting And Racist Garbage Incinerators

Get a spine, stop playing games.

PS – Just one example: All forms of incineration (garbage, sludge, hospital waste etc) are major sources of ultra-fine particles. Recent science suggests severe adverse public health impacts. But there is not even DEP consideration to regulate ultra-fine particulates and establish air quality standards and emission standards, air pollution permit emission technology controls, and ambient air quality monitoring for them, etc.

The whole EJ program is based not on science, but slogans