WolfeNotes.com

Jersey Boy Alito Wrote An Awful Opinion

Amazingly, Dissent Was Written By Fellow Right Winger Coney-Barrett

A Case Of Be Careful What You Ask For

The right wing anti-regulatory US Supreme Court just issued a decision that appears to have gutted core provisions of the Clean Water Act, see:

• City and County of San Francisco v. Environmental Protection Agency, United States Supreme Court, Case No. 23-753.

The victorious plaintiffs from San Francisco issued a press release, bragging:

Large cities and jurisdictions across the country like Boston, New York, and Washington D.C. shared San Francisco’s concerns and submitted amicus briefs supporting the City’s position. The City was joined by more than 60 amici, including the 400 cities represented by the California League of Cities, the 2,800 members of the National League of Cities, the over 2,300 members of the National Association of Counties, the National Association of Clean Water Agencies, and the California Association of Sanitation Agencies.

The decision is being reported in the media as a major rollback of the Clean Water Act, which would allow “raw sewage to be discharged to drinking water supplies”:

• US supreme court weakens rules on discharge of raw sewage into water supplies

That take is clearly over the top, as the case involved an ocean outfall.

But on the legal and practical implications, I say, not so fast.

This could be a case of “be careful what you ask for“. Let me explain.

For my entire career, I’ve heard NJBIA (previously Jim Sinclair, now Ray Cantor), NJCIC (previously Hal Bozarth, now Dennis Hart. Ironically,Dennis used to manage the DEP’s NJPDES water permitting program) and the Chamber of Commerce lobbyists howl about EPA and DEP issuing “prescriptive regulatory mandates” in permits.

They’ve demanded “flexibility” and “performance based” permits.

EPA conceded to those critics and gave them what they asked for.

For decades, EPA has been playing a game by writing vague NPDES permits with broad narrative permit conditions, like: “thou shall not pollute and violate water quality standards” and pursued a policy that “installation of Best Management Practices” (BMPs) meets water quality standards.

This approach got EPA off the hook for having to do all the work to review and write site specific detailed permits with real data and science about potential impacts on water quality and whether the permit conditions would actually meet water quality standards.

In turn, the polluters (permittees) could avoid having to do a lot of technical work in submitting a permit application. The permittee then could rely on this vague permit language under the “permit shield” concept to avoid EPA enforcement and lawsuits by environmental groups. It was very difficult prove a permit violation.

Under the Court’s ruling, it looks like EPA and DEP will now have to write detailed NPDES permits with specific technical and numeric conditions that can be measured and enforced.

Hahaha! No more hiding behind BMPs to protect water quality!

But I think Justice Alito got it badly wrong on the “water quality based effluent limits” (WQBELs) provisions of the Clean Water Act.

As EPA notes, Section 303 of the CWA mandates:

Permit writers must consider the potential impact of every proposed surface water discharge on the quality of the receiving water. If TBELs are not sufficient to meet the water quality standards in the receiving water, the CWA (section 303(b)(1)(c)) and NPDES regulations (40 CFR 122.44(d)) require that the permit writer develop more stringent, water quality-based effluent limits (WQBELs). 

How could Alito completely ignore this?

So if the Court’s decision is interpreted to be broader than the EPA Combined Sewer Overflow (CSO) program, then the entire national (and NJ) clean water program is in fact gutted.

In order to air this complex debate and explore the implications of the Court’s decision, I wrote the following to Legislative leaders and DEP Commissioner LaTourette:

———- Original Message ———-

From: Bill WOLFE <b>

To: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, senmckeon@njleg.org, senzwicker@njleg.org, Hansen, Eric, shawn.latourette@dep.nj.gov

Cc: wparry@ap.org, fkummer@inquirer.com, srodas@njadvancemedia.com, O’Neill, James, warrenm@njspotlightnews.org, ferencem@njspotlightnews.org, jonhurdle@gmail.com, Maya K van Rossum <maya@forthegenerations.org>, tracy@delawareriverkeeper.org, agoldsmith@cleanwater.org, dpringle1988@gmail.com, Taylor McFarland, NJ Sierra Club, Anjuli Ramos <anjuli.ramos@sierraclub.org>, Richard Isaac <risaacx@aol.com>, emile@njconservation.org, Matthew Smith <msmith@fwwatch.org>, domalley <domalley@environmentnewjersey.org>

Date: 03/08/2025 12:21 PM EST

Subject: US Supreme Court Clean Water Act decision

Dear Senators and DEP Commissioner LaTourette:

On Friday, the US Supreme Court issued an opinion regarding the Clean Water Act and water quality based effluent limits, see:

City and County of San Francisco v. Environmental Protection Agency, United States Supreme Court, Case No. 23-753

The case involved a challenge by the City of San Francisco to an EPA combined sewer overflow (CSO) permit.

As I read the decision, the Court made serious errors in interpreting the Clean Water Act.

The decision now jeopardizes not only the NJ DEP’s CSO permits, but all other permit limits and “water quality based” (WQBEL) effluent limits, including the entire “Total Maximum Daily Load” (TMDL) program for impaired waters.

I urge you to conduct oversight hearings and take public testimony on the implications of this decision and whether new State legislation is required to avoid legal challenges to NJ DEP clean water permits and programs.

Bill Wolfe

Preventing And Regulating Junkyard Fires Is Not A Local Issue

NJ Spotlight Coverage Goes From Bad To Worse

We Expose A Corrupt Co-Optation Project

NJ Spotlight did another story today – their third – about the most recent junkyard fire in Camden at the DEP regulated EMR scrap recycling facility, see:

• Camden residents slam EMR after large fire at scrapyard

In terms of getting to the source of the problem and holding government accountable for their longstanding and repeated failures to enforce environmental laws and protect the community, the coverage is getting worse, not better.

I blasted Spotlight’s prior coverage and the pathetic DEP’s $7,600 enforcement fine and explained the weakness in current DEP regulations and lax DEP oversight.

I explained how this facility – located in perhaps the worst environmental justice community in the country – was NOT regulated by the NJ Environmental Justice law and DEP environmental justice regulations.

Most importantly, I specifically highlighted both the toxicity of the materials stored and processed at the EMR junkyard and the extreme hazards from exposure to the smoke from burning that material, which Spotlight mislead readers by describing it innocuously as “fluff”.  It is known as toxic “Auto Shredder Residue“:

B. CHEMICAL CHARACTERISTICS

The chemical characteristics of ASR are typified by the presence of a very small amount of residual metals, such as lead, cadmium, copper and zinc, as well as various petroleum hydrocarbons (e.g., lubricating oils and other residual automotive fluids) and PCBs. Concentrations of certain residual metals in untreated ASR can approach or exceed California TTLCs and STLCs. For example, untreated ASR often contains total lead in excess of 1,000 mg/kg and WET extractable lead in excess of 5 mg/l.

I recommended:

DEP Must Revoke Permits, Pursue Criminal Enforcement, And Shut Down EMR Scrap Metal Recycler For Repeat And Knowing Major Violations.

As usual, I sent this information to NJ Spotlight reporters and editors. So, one would expect that followup coverage would at least report SOME of these critical issues – but instead, they all were ignored and the coverage got WORSE.

DEP regulation of EMR facility was not even mentioned. Worse, the sub headline of the story created a false impression that DEP took strict enforcement action. Check this out:

Company’s waterfront scrapyard previously caught fire in 2022, been fined by the DEP multiple times

Did EMR or DEP write that?

Fined. Multiple. Times? Wow. Sounds like DEP is really kicking ass, right?

But next we learn:

[EMR] employs more than 100 locals, but between EMR and the scrapyard’s previous owner, it has been fined multiple times by the state’s Department of Environmental Protection, including $24,000 worth of fines in 2007 alone.

EMR USA is a large corporation with over $500 million in annual revenues. 

A $24,000 fine – “alone”! – is not even lunch money. And it’s 18 YEARS OLD, and was issued by the notoriously anti-DEP regulatory Christie administration. And that fine was issued BEFORE enactment of the NJ environmental justice law, which is supposed to be about remedying the impacts from prior lax regulation in environmental justice communities.

Notably, that paltry Christie DEP fine is LARGER than the pathetic $7,600 fine issued more recently by the Murphy DEP. That ought to tell you something.

Do the people and local officials in Camden even KNOW that DEP is the primary agency responsible for the safety and environmental impacts of the EMR facility?

The people interviewed in the Spotlight story never mentioned DEP.

Spotlight’s coverage framed the issue from a local fire department investigation angle.

What could explain the lax DEP regulation and enforcement AND the lame press coverage by NJ Spotlight?

First, let’s start by noting that EMR is a UK based global corporation. The Camden facility is part of the EMR US affiliate, with over  $500 million in annual revenues in 2023 – (other reports say far more, $1 – $5 billion).

Second, we note that EMR is legally represented by Michael Gross, one of NJ’s most powerful and politically connected corporate lawyers (see DEP air permit hearing transcript). Mr. Gross not only knows the law, he knows how to pull strings and play the DEP political game too and has been playing it for decades.

Third, of course, we must note that this is Camden, a notoriously politically corrupt city and connected to the NJ Democratic Party that runs the DEP.

Fourth, Murphy DEP Commissioner LaTourette is a former corporate lawyer with close ties to South Jersey Democrats.

Fifth, LaTourette has proven extremely adept at co-opting environmental groups and silencing their criticism, typically with DEP grant funding. So the local Camden’s Center for Environmental Transformation might just be taking DEP money. We note that they are part of a DEP funded project called the Camden Collaborative Initiative. 

That Camden initiative stresses “collaboration”, so criticism of DEP is bad form and DEP gets the protection it pays for:

The Camden Collaborative Initiative (CCI) is a solutions-oriented partnership between governmental, non-profit, private, and community-based agencies formed to plan and implement innovative strategies to improve the environment and the quality of life of Camden’s residents.

When does a “partnership” become co-optation and sellout? I think we’re there.

So, given all these facts, it’s pretty obvious what kind of corruption is going on here.

But what explains NJ Spotlight’s journalistic malpractice? Could Mr. Gross or someone at EMR be pulling strings at PBS?

[End Note: I’m just now reading the transcript of a public meeting on the DEP air permit, and noted this highly misleading statement by ERM: (@ page 34)

MR. DAVID STEINBERG: Okay. Are you aware of any pollutants, hazardous fumes that would be harmful to health that are being released due to the fires?

MR. JOE BALZANO: We have not found any during the monitoring. There was nothing that was recorded that was dangerous to the public.

That’s a flat out lie or the monitoring that was conducted was seriously flawed.

More Shoes Drop In The Assault On Government Regulation

Accelerating Into The “Void” – What Could Go Wrong?

(caption: sinkhole collapse on River Road, Montague, NJ during gas pipeline construction (7/9/13 – Bill Wolfe)

We are now witnessing the effects of decades of privatization and deregulation, as Boeing planes crash, toxic bomb trains derail and burn, oil and gas wells blowout, and cargo ships take out bridges.

The coming years are likely to add various building failures to that list. ~~~ Wolfenotes.

A section of Interstate 80 in New Jersey has been closed since February 10 as a result of the roadway collapsing into a sinkhole.

The sinkhole was caused by an abandoned mine.

Fourteen years ago, we warned about abandoned mines:

During the investigation and repair of the February 10 sinkhole collapse, another road closure was caused by what NJ Spotlight called a “void”:

A sinkhole and a newly-discovered void along I-80 in Morris County has led to the closure of parts of the highway for a month, snarling traffic and enraging drivers. 

Drivers are getting pissed off by the delays.

But this is only the beginning, as the shoes continue to drop on the last 40 years of attack on government planning and regulation and disinvestment in public infrastructure.

There’s a very big story here. The dots must be connected.

But instead of connecting these dots, in a textbook case of “burying the lede” – literally buried in the closing sentence – NJ Spotlight casually suggested today that there’s a much larger problem lurking:

New Jersey has about 600 abandoned mines statewide. While many abandoned mineshafts are located in fields and forests, some are located directly underneath buildings and highways.

They left out the pipelines, as we warned 12 years ago:

Tennessee Gas Pipeline Drilling Causes Sinkhole Road Collapse – Pipeline Route and Drilling Hit Known Vulnerable Limestone Geology

How Many Other Places Along Pipeline Are Prone to Collapse?

(caption: sinkhole collapse on River Road, Montague, NJ (7/9/13)

The sinkhole collapse is part of a pattern of seriously negligent, reckless, and illegal pipeline construction practices that have caused tremendous environmental damage in NJ (for warnings and photos of pipeline violations we’ve previously published, see this and this and this).

The latest sinkhole collapse raises important questions of how this could have been allowed to happen and whether there are other places along the pipeline route where sinkholes could cause the catastrophic collapse and rupture of the gas pipeline – there could be numerous literally ticking time bombs.

The collapse also raises questions about the adequacy of the environmental review,  permitting, and construction compliance monitoring of the project by federal and state regulators, and whether the proposal to route the pipeline under the *Monksville Reservoir should be abandoned.

The limestone and karst geology in the northwestern portion of NJ and the risks of sinkholes have long been known to federal, state and local officials – and in exactly the location site where the sinkhole emerged.

How did Tennessee engineers and government regulators apparently miss that?

We urge the following immediate actions:

• We urge federal and state officials to issue an immediate stop work order and conduct an investigation along the entire pipeline route where there are risks from sinkhole collapse.

• We urge federal and state regulators to take aggressive enforcement action against Tennessee Gas Pipeline for this negligence and major violation of drilling permits, including penalties to assure that all damage is restored.

• In light of these kind of risks – created by known and unknown geological conditions – to reconsider and reject pipeline routing under the *Monksville Reservoir.

• We urge state and federal regulations to beef up inspection and enforcement oversight of this pipeline construction to prevent any more accidents and damage.

All those recommendations were ignored.

And NJ Spotlight story today also left out the risks caused by illegal disposal of construction debris at development sites. These disposal operations often cause sinkholes and land subsidence. DEP has know about this for decades and done little or nothing.

And they left out new construction in hazardous locations.

Despite these serious risks revealed back during that pipeline sinkhole, NJ State legislators and regulators simply ignored all that and did NOTHING to strengthen land use planning laws and regulations to assess and avoid these problems and mitigate the risks and impacts.

In fact, they’ve done just the opposite: major new development (warehouses, housing, pipelines, etc) are still being built over high risk geology.

Worse, existing NJ laws and regulations and inspection practices are being weakened.

For example, last year, we criticized Gov. Murphy for signing a privatization bill into law. We wrote:

• Murphy Administration Just Privatized Construction Inspections – What Could Go Wrong?

NJ’s construction industry has a long history of corruption and dangerous practices – from shoddy construction, to sinkholes caused by burying construction debris on site, to illegal disposal of toxic fill (AKA “dirty dirt”), to building schools on hazardous waste sites – to name just a notorious few off the top of my head.

Now, builders and developers can hire their own private inspection crews to cover all that up.

We are now witnessing the effects of decades of privatization and deregulation, as Boeing planes crash, toxic bomb trains derail and burn, oil and gas wells blowout, and cargo ships take out bridges.

The coming years are likely to add various building failures to that list.

Add to that list: along interstate highways too.

“evaluating greenhouse gas impacts is outside of the scope of the Ozone SIP.” (NJ DEP – response to my public comment #44)

“Half of all Americans, 158 million people, live in counties where air pollution exceeds national health standards. Where attainment of the NAAQS is especially difficult, leading to delays in meeting attainment deadlines, the health effects of increased ozone due to climate change may be substantial. ~~~ US EPA “Endangerment Finding” (12/15/09)

NJ residents will be breathing unhealthy air until at least 2033, according to a Murphy Clean Air Act final “Ozone Attainment” plan adopted by the DEP yesterday (read the DEP’s Ozone State Implementation Plan.)

Another decade is far too long to wait for clean air.

The Murphy DEP’s failure to crack down on polluters and plan to extend the clean air compliance date by 9 years faced strong public criticism by environmental justice groups and residents. Critics included Earthjustice, IronBound Community Corp., South Ward Environmental Alliance, Clean Water Action, and Don’t Gas the Meadowlands Coalition.

Notably absent were Sierra Club and Environment NJ, groups that historically have provided leadership on clean air issues but now cheerlead for the Murphy DEP. That’s a disgrace, given that current NJ Sierra Executive Director Anjuli Ramos Busot is a former DEP clean air technician.

DEP got absolutely hammered on a 9 year (not 6) extension of the date of compliance with clean air act ozone standards:

The people of Northern NJ should not have to wait an extra 6 years (a total of 9 years from today) before they breathe air that the U.S. Environmental Protection Agency (EPA) considers healthy, especially if NJDEP is not taking action to significantly reduce smog-forming emissions from transportation and goods movement. (Earthjustice)

DEP also faced strong criticism on many key clean air and public health issues, including climate change,  environmental justice, transportation (mobile source) impacts, turnpike expansion, port emissions, and lack of adequate monitoring.

Comment: …. NJDEP has also noted that ozone impacts are “particularly concerning in Environmental Justice areas that already experience a higher-than-average share of at-risk communities. During 2016, asthma affected 15.7% of African American children and 12.9% of children of Puerto Rican descent, while it affected only 7.1% of white children. African American children were burdened by 138,000 asthma attacks and 101,000 lost school days each year.” (Earthjustice)

19. Comment: There’s no ozone monitoring in Newark. My jaw dropped when I saw that. I reached out to the mayor of Newark, and I tried to make contact with environmental justice groups in Newark. Are they aware of the fact that their community’s air is not being monitored for ozone compliance? That’s incredible to me. Again, I’m not in the air program. I’ve been out of state for a number of years. I haven’t been on the ground with the environmental groups; I used to work with Sierra Club. I also used to work for the NJDEP. And I’m just astonished by that. What’s the explanation for why the Newark station was closed, and why hasn’t another station in Newark been established? (Bill Wolfe)

DEP’s repose to my comment about the failure to consider the impacts of climate change on ozone air quality levels was shocking:

“evaluating greenhouse gas impacts is outside of the scope of the Ozone SIP.” (NJ DEP, response to my public comment #44)

That response contradicts climate science and US EPA policy, which elucidates how increasing temperatures exacerbate ozone formation and air quality impacts:

Climate researchers are learning that warming temperatures and heat waves resulting from greenhouse gas (GHG) emissions could adversely affect air quality in the United States and increase deaths from air pollution exposure. This effect is referred to as the “climate penalty.”

Higher levels of GHG emissions from vehicles, power plants, and other human-made sources are contributing to warming, which will increase ozone. Exposure to this pollutant can aggravate asthma, cause heart attacks, and exacerbate other respiratory and cardiovascular conditions. Air quality managers need to know how climate change will affect air quality and public health throughout the 21st century. New modeling approaches by EPA are providing this information for states as they work to implement the National Ambient Air Quality Standards. In one modeling simulation, researchers showed that full implementation of enacted air pollution regulations could reduce the increase of ozone despite warmer temperatures, thus reducing potential deaths from exposure. (US EPA, 2022)(better download that document before the Trump EPA takes it down!)

More recently, EPA reiterated that science: (updated March 3, 2025)

The effects of climate change on air quality will continue to vary by region. In many areas of the United States, climate change is expected to worsen harmful ground-level ozone, increase people’s exposure to allergens like pollen, and contribute to worsening air quality.² It can also decrease visibility so that it is harder to see into the distance.³ Changes in the amount of outdoor air pollutants can also affect indoor air quality.

Not surprisingly, the DEP tried to bury these critical public comments and DEP’s lame response in to them in “Appendix 10.1”, at the end of a long and extremely complex planning document. (read the public comments and DEP responses).

DEP also ignored the known significant adverse health effects of fine particulates wood burning, DEP prescribed burns in NJ forests, and wildfires. Despite the fact that science shows significant adverse public health effects from smoke, the DEP limited responses to the ozone issue and ignored everything else!

On top of ll that, DEP buried my criticisms at the end of the buried response document. Here’s just a few:

21. Comment: And then there’s the other questions of the extent of the monitoring network.

Is it geographically and spatially representative? Is it — from the elevation standpoint does it measure street level or does it — are these stations up 60, 70 feet in the air? They should be located in places where people actually breathe the air and are exposed. Is that the case? None of the information is provided, as far as I known, as to where to find the technical details of the monitoring network, as to whether it’s reliable, representative and valid. (BW)

25. Comment: The NJDEP is seeking compliance relief based on an exceptional event demonstration that alleges that wildfires constitute an exceptional event. … All climate models project future warming and, among other things, increasing frequency and severity of wildfires in the locations involved. Thus, wildfires are likely to recur at the particular locations in question.

Wildfires also are not “natural events”, due to causes related to anthropogenic climate change and, among others, logging and forest mismanagement. Accordingly, the wildfires in the demonstration are likely to recur and are not “natural events”; thus, the demonstration does not comply with the EPA regulatory requirements and should be rejected by EPA….

One of the fires, or a series of the fires from the Midwest that impacted NJ and you’re relying on for your demonstration, was created by a prescribed burn that got out of control. So, the NJDEP is promoting a program of prescribed burn that creates emissions, has the risk of getting out of control, and has been known to create air impacts in NJ that you’re now seeking relief from.(BW)

28. Comment: Even if the wildfires constitute valid exceptional events, they involved only 4 days of non-compliance. The data in the SIP indicates that there were 17 days on non- attainment in 2023. Eliminating the 4 wildfire day exceptional events still leaves 13 days of non-attainment. (BW)

29. Comment: …

Number three, the U.S. Air Force, in their own REPI program documents admits they create a wildfire in the pines every ten to 14 days. That’s by the U.S. Air Force data; they’re growing out, I think the Warren Grove range.

You’re working cross purposes here, and I think you need to walk away from the prescribed burn program because it’s just for emissions alone, if you don’t have to deal with all the other forestry issues that are relevant to that program. So, I would urge that you don’t get that exemption from EPA and abandon the prescribed burn program. (BW)

33. Comment: In one of the appendices, there’s growth projection assumptions by source category, and some of your economic growth assumptions and your emissions assumptions were running at I think 1.4% per year for natural gas. That can only increase greenhouse gas emissions. Yet everything in it, governor’s executive orders and the Global Warming Response Act and all those programs you summarized in your introductory remarks, all create the appearance that emissions are being reduced. (BW)

44. Comment: And there was no kind of global warming assessment of those natural gas emissions projection increases, right? And I think you’re required by NJ law to do the 20-year time horizon on your warming potential emissions, which would then create even additional warming potential from those emissions in terms of your greenhouse gas inventory. (BW)

Apparently, the US EPA Region 2 Office signed off on DEP’s plan.

Another decade is far too long to wait for clean air.

Tear The Trump Fascists Down!

We’ve been flying the The Maple Leaf l’Unifolié since Trump made his insane “51st State” proposal.

Woodie Guthrie got it right a long time ago:

• Tear The Fascist Down! (listen)