WolfeNotes.com

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.

Billionaire’s Foundation Abuses Now Threaten All State Parks Due To New Law Gov. Murphy Just Signed

State Parks Have A $720 Million Unfunded Maintenance Deficit

DEP Desperation For Funds Opens The Door To Abuses By Private Foundation

A quick note today to clarify DEP Commissioner LaTourette’s remarks and media coverage of Saturday’s public hearing on DEP’s Liberty State Park development plans.

NJ Spotlight praised DEP Commissioner LaTourette and reported that LaTourette:

“called out the [Fireman] task force for purposely misleading the public” (at time: 0:40)

But here is what LaTourette actually said:

“I regret that there is misinformation on this point.” (at time 3:23)

Apparently, NJ Spotlight does not know the difference between misinformation and disinformation – and this is not a minor semantic point. It goes to whether LaTourette is being strong or weak. He is being portrayed by Spotlight as strong when in fact just the opposite is true. He is being weak. 

The Spotlight praise is false. LaTourette did not “call out” Fireman’s false information campaign, which is disinformation, not misinformation:

“Misinformation is false or inaccurate information—getting the facts wrong. Disinformation is false information which is deliberately intended to mislead—intentionally misstating the facts.” (American Psychological Association)

If someone is “purposely misleading the public”, they are engaged in disinformation, not misinformation.

LaTourette is a trained and licensed lawyer. He traffics in words and uses them with precision. He knows this. If he mis-spoke, he should issue a public statement clarifying the issue and correcting his error.

But I don’t think he misspoke. I think he is afraid to “call out” Fireman. I think misled the public intentionally. The Commissioner not only gaslighted on the word he used, but he used the passive voice and did not name names. Pathetic.

The public is being duped and gaslighted once again.

Because if DEP can’t call out billionaire Fireman on this kind of blatant abuse, it means that they are in a weak political position.

And if that is the case, the final plans for the Park will be influenced by Fireman’s power.

Which takes me to the Statewide issues that Fireman’s “People’s Park Foundation” has exposed so clearly.

Gov. Murphy just signed a Democratically sponsored bill into law that creates a statewide private “State Parks And Open Space Foundation”, see: P.L.2023, c.256. It is modeled on the Fireman Foundation and is subject to exactly the same  corruption and abuses the Fireman Foundation has engaged in, see:

• Billionaire Paul Fireman’s AstroTurf Sham “Foundation” To “Develop” Liberty State Park Now Threatens All State Park

DEP Commissioner LaTourette testified to the Legislature that State Parks have a $720 million unfunded deficit in State Parks maintenance. DEP is desperate for money. The Legislature is not appropriating any and the previously Constitutionally dedicated $48 million per year was stolen by the “Keep It Green” Open Space campaign by greedy conservation groups, see: the Bergen Record:

• Budget cuts doom state parks to disrepair

Some environmental groups blame a voter-approved 2014 constitutional amendment. It shifted revenues from the state’s Corporation Business Tax away from capital improvements. Instead, they bolster Green Acres, a taxpayer-financed program that has preserved more than 650,000 acres of open space in its 55 years. …

Mark Texel, head of the New Jersey Division of Parks and Forestry, called it a “massive blow” and said in a Facebook post soon after the vote that it was “the darkest day I have faced in my professional career.” …

“We had a plan to really tackle some of these major capital projects that had been deferred for many, many years,” Texel said. “And we were making progress. Suddenly now our capital budget is having the legs cut out from underneath it. … It was disappointing, I admit. I was very disappointed.”…

Bill Wolfe, director of the non-profit Public Employees for Environmental Responsibility, said he didn’t believe that voters in 2014 knew this would happen.

He accused NJ Keep It Green of “intentionally, knowingly” stripping state parks of capital funding to finance Green Acres so they wouldn’t have to ask voters to approve a bond. That, he said, let open space groups avoid a public brawl with Governor Christie, who has demanded no new debt be placed on taxpayers. The coalition, he said, “didn’t have the spine to fight for the money.”

That financial desperation means that DEP will approve virtually anything the new private Foundation proposes for parks development (especially when their is no organized advocacy group like Friends of Liberty State Park turning out hundreds of people to public hearings and no media coverage. And there are no public hearings required by the new State Parks Foundation law anyway.)

I gave Commissioner LaTourette an opportunity to correct his error (if he misspoke) and explain the new Parks Foundation law, see:

NJ Senate To Hear Proposed Constitutional Amendment To Establish Rights To A Healthy Environment

On Thursday March 7, the NJ Senate Environment Committee will hold a public hearing to take testimony on a proposed amendment to the NJ Constitution to establish certain environmental rights. The hearing is “For Discussion Only”, meaning that the Committee will not take action on the Concurrent Resolution.

Senate Concurrent Resolution 43:

SYNOPSIS

Proposes constitutional amendment to make State trustee of public natural resources and guarantee to the people other environmental rights.

I have not been involved in the almost decade long effort to advocate for this Resolution and I have not researched and written about the issue. Frankly, I viewed it largely as a waste of time, an expensive legalistic diversion, and a symbolic gesture – thus the question I posed in the headline to this post.

But a NJ environmentalist reached out to me to solicit my thoughts. So here is my reply to that request and cursory review (I did no research):

The Concurrent Resolution was originally introduced 8 years ago (2016), see:

https://www.njleg.state.nj.us/bill-search/2016/ACR259

I think the current version is being pushed by Maya Van Rossum (a lawyer) and head of Delaware Riverkeeper.

Politically, it’s used as a tool to hold out a carrot before the Trenton environmental groups to squelch criticism and engender political support. If they’re good boys and girls, they might get the measure on the ballot!

Substantively, I make the following observations:

1) the State of NJ already legally is the trustee for natural resources under the common law Public Trust Doctrine (well established and encoded in NJ law by the Courts), under NJ statutory law (again, upheld by the NJ Courts) and some federal laws, like Superfund, where injuries to natural resources must be compensated for and States serve this Trustee role.

More important is the fact that DEP has failed to enforce these rights in virtually all permit programs, remedial action programs, and natural resource management programs and with virtually no legislative oversight.

So SCR43 would do little more than codify current law in this respect, but with some expansion in scope.

2) The SCR applies only to the State and actions (and inaction) by the State, not the private sector. It’s the private sector that is doing the damage. So why isn’t the private sector prohibited from violating these rights?

3) The elevation of natural resources as “common property” and consideration of “future generations” are expansions of current law and good ideas.

4) I don’t see anything specific to the climate, the most serious threat. Don’t we have a right to an atmosphere of 350 ppm carbon dioxide? That’s what the science says is the maximum concentration to support a stable climate. Why isn’t that numeric standard written into the concurrent resolution?

[Update: I also don’t see any specific new rights about “public health”. Does a healthy environment apply to human health? If not, this could actually undermine the current regulatory approach to health based standards.  ~~~ end update]

5) The “self executing” provision is good:

https://www.law.cornell.edu/wex/self-executing

[Update: Based on the comments from my lawyer friend (below), I need to rethink this and how it would actually work. I initially thought it a good idea that the rights could be enforced before years of delays for implementing legislation and DEP regulations. But, this has downsides, including making the Courts the venue for science, policy, regulatory and political  decisions regarding what a healthy environment is. This also could have the effect of giving DEP an excuse and a huge pass on the need to adopt stricter new regulatory standards to preserve and protect these rights. So, the existence of these new “rights” would be even worse than reliance on case by case site specific battles (as opposed to uniform statewide regulations I support) – it could actually set back any future progress on DEP adopting much needed stricter standards. The same dynamics would apply to the Legislature: why pass stronger laws when the Constitution now protects the environment?

So, if the Courts do the job, why not eliminate DEP entirely? This could drive the creation of a sort of private litigation approach to environmental protection: those with the money to lawyer up get protections, the rest of us get screwed. ~~~ end update]

6) I don’t understand how creation of this right improves anything. It will take many years for people and environmental groups to bring lawsuits to have these rights defined and enforced.

For example, it took over two hundred years to flesh out the US Constitution’s First Amendment rights, and that law is still not settled.

There are no current standards (scientifically and legally) as far as I know that define what these rights are substantively: will the right to clean air and water be limited to the current air and water quality standards? I don’t even know what an “ecologically healthy habitat” is; or what the criteria are for judging the “esthetic qualities of the environment”

It will take decades of expensive litigation to even begin to flesh out what these rights mean in the real world and establish how they are enforced.

7) The enforcement relies on expensive lawyers and litigation and the courts.

The Courts are the least democratic branch of government.

Money spent on lawyers (and scientific experts required to file briefs and testify in court) could be spent on much more effective strategies.

Litigation is a case by case approach and the outcomes are usually crafted by the courts to be very narrow and applicable only to the case and controversy before the court. Fighting individual site specific battles are a huge waste of money and time and divert from far more effective strategies and tactics. Economists call these “opportunity costs”.

8) The Trenton Democrats use largely symbolic gestures like this to cover for their failures and corruption. In the end, they won’t even fight politically for it and it is unlikely to pass both houses and be placed on the ballot. But NJ Spotlight will write a glowing story praising their leadership and vision. That’s exactly the headline they are looking for.

9) Meantime, despite all the rhetoric on “environmental justice”, the current legal framework which actually does have teeth and can be enforced (e.g. Title VI of the Civil Rights Act, which was litigated in Camden) is being eviscerated – as is the Public Trust doctrine, which DEP routinely violates and with no oversight or criticism by the Legislature or environmental groups.

Similarly, far more pragmatic, realistic, democratic, and effective legislative reforms, like: a) expanding the right to “standing” in administrative challenges to DEP permits, or b) broadening the scope of the Clean Water Enforcement Act to all DEP permits, or c) establishing standards and burdens of proof for natural resource damage recovery, or d) mandating environmental and climate impact statements (a State NEPA) or e) using budget and oversight powers to force DEP to resume issuing annual reports on enforcement of environmental laws, or f) establishing the  “precautionary principle” to guide DEP decisions under scientific uncertainty, or g) establishing enforceable numeric standards and methods required to enforce current law on “cumulative impacts” and “disproportionate burden”, h) or mandating that DEP regulate hundreds of currently unregulated chemicals known to be emitted, discharged and present in air, water, and drinking water, i) or revoking laws that privatize energy, toxic site cleanup, drinking water and wastewater treatment systems, and State parks management, or j) or banning logging and improving protections of the last remaining forests and farms, or k) restoring the Pollution Prevention Act, which was gutted by the chemical industry, or l) closing massive loopholes in the Open Public Records Act, Whistleblower “protection” laws, and many current environmental laws based on decades of experience – all of these go completely ignored by Legislators and environmental groups and the media.

10) Politically, the Trenton environmental groups will show up to praise it and then use the press clips as indicators of success and go back to the Foundation community for more funding.

But it will be interesting to see how the business community responds.

My sense is that they will be smart enough to allow the motherhood  and apple pie moment to pass with little fanfare – they know it’s not a good look to oppose the right to a clean and healthy environment!

But behind the scenes they will lobby legislators to oppose it, if only due to potential litigation risks and the delays and uncertainties this could inject into the DEP permitting process. They will downplay this concern in public testimony, of course.

In conclusion, given all the above, I think the SCR is a misguided strategy and more of a symbolic gesture and Kabuki dog and pony show than a sincere effort. Hate to appear cynical, but I’ve seen too much of how Trenton operates.

[Update: Here is what a prominent leading veteran NJ environment lawyer has to say:

The proposed amendment hasn’t been on my radar screen for several years.

Your email reminded me that the proposal has resurfaced “for discussion purposes only”.

I think the primary problem with the proposal is that it potentially assigns responsibility to the judiciary to determine in the first instance what constitutes “a clean and healthy environment” and what constitutes “the preservation of the natural, scenic, historic, and esthetic qualities of the environment”.

The judiciary is not the appropriate venue to determine on a case-by-case basis how clean is clean; how healthy is healthy; what level of preservation is acceptable; and make aesthetic determinations [isn’t beauty supposed to be in the eye of the beholder?]

Those sound like policy issues that should be made by an executive branch agency in accordance with enabling legislation and be subject to judicial review.

I also view the first sentence of 24(a) as broader than you do. It could be misused by disgruntled neighbors, competitors, and objectors.

The proposal may have a feel-good quality for its proponents but has the potential to result in serious and negative unintended consequences.

Regards,

XXX

Gov. Murphy Quietly Signs Law Creating Statewide “Parks Foundation”

Law Provides An Institution To Solicit Dark Money And Inject Private Influence Over The Management Of State Parks

Corrupt Pay-To-Play Now Infects All NJ State Parks

AstroTurf – falsely made to appear grassroots

an astroturf campaign/group

When successful, Astroturf efforts resemble actual community mobilization efforts. They create the impression that local people are engaged in the effort and doing the things that traditional community organizations do.

NJ media have properly exposed, editorialized, and condemned the scheme by billionaire Paul Fireman to create a sham astroturf “Foundation” to develop and commercialize Liberty State Park.

Fireman created and funded a sham “Foundation” and used that Foundation as the vehicle to dupe the public and inject his private financial interests into Legislative and DEP policy decisions concerning the management of Liberty State Park.

The Fireman “Foundation” was a classic dark money pay-to-play scheme.

As a result of the media coverage, that scheme is now common public knowledge and the media exposure has effectively shamed and derailed Fireman’s project, at least for now and until the heat dies down.

This is exactly what good journalism can and should do: protect the public interest and expose the self-serving schemes of private special interests.

So, given how rightly appalled the media was about Fireman’s sham Liberty State Park “Foundation” and how this “Foundation” was so transparently an astro-turf vehicle to solicit dark money, dupe the public, and inject private influence over the management of State Parks, how is it possible that that same media has totally ignored legislation recently signed into law by Governor Murphy that is based on the Fireman’s Foundation model (and it expressly targets and includes Liberty State Park)? See:

• NJ Gov. Murphy Just Corporatized State Parks And Forests – Liberty State Park Targeted By Lame Duck Stealth Amendments

The new “State Parks Foundation” Gov. Murphy just created (with help from Democrats in the Legislature) is a blatant pay-to-play scheme (no pun intend).

The Foundation membership is composed of private interests.

The Foundation is given powers to solicit unlimited private funding, to design parks projects, and to dedicate funding to those projects it designed and raised funds for.

NJ State Parks have a $720 million unfunded maintenance backlog, so DEP’s desperation for money will mean that anything the Foundation wants it will get approved by DEP.

The Foundation is not subject to NJ Open Public Meetings Act, so the public can be shut out of Foundation deliberations and planning and Parks funding decisions.

The Foundation is not subject to NJ’s Open Public Records Act, so the public will not have access to documents, funding sources, park plans, and meeting deliberations and decisions.

The Foundation is not subject to NJ’s ethics laws so there will be gross conflicts of interest, a virtual invitation for pay to play schemes.

The Foundation is not subject to NJ’s campaign finance and disclosure laws, another invitation for the corrupt influence of dark money.

Yet the NJ media has not written one story about this law! (to my knowledge).

How can this be?

How can this kind of corruption go unreported?

DEP Uses Twisted Climate Logic To Justify Burning And Logging NJ Forests

DEP Has Declared PreEmptive War On NJ Forests

Despite a failed legislative initiative by Senate Environment Committee Chairman Smith to reform NJ DEP’s flawed forest management policies and practices based on credible forest ecological and climate science, DEP is plowing ahead with an expanded program to burn and log NJ’s forests and is using sham climate justifications, scare tactics, and slogans to do so: (NJ DEP press release today):

The New Jersey Department of Environmental Protection Forest Fire Service’s annual prescribed burning program is ramping up as part of a proactive strategy to mitigate the risk of more frequent and intense wildfires in a changing climate…

“Prescribed fire not only fosters resilience and diversity in the landscape, but also helps to safeguard our communities,” Commissioner LaTourette said. “By executing planned prescribed fires throughout New Jersey’s wooded areas, we are limiting the risk of a catastrophic release of carbon during a wildfire.”

In addition, DEP is launching an expanded public relations and propaganda effort to “educate” the public who oppose these destructive DEP projects – the arrogance is stunning:

As part of that plan, a new online information portal is designed to help the public understand and reduce fire risk, Commissioner Shawn M. LaTourette announced today.

This garbage comes from an Agency who has refused to act to truly prevent damaging wildfires by restricting new development and retrofitting existing development in DEP mapped high wildfire hazard areas, see:

• Murphy DEP Denies Climate Wildfire Risk Petition

DEP has produced no NJ based peer reviewed studies and data to support DEP’s alleged justification to “limiting the risk of a catastrophic release of carbon during a wildfire”.

DEP has no forest carbon storage and sequestration monitoring data or methodology to quantify carbon implications of either controlled burns or wildfires. Their analyses are purely theoretical and lack science and data support, see:

• DEP’s Carbon Analysis Of Their Pinelands Logging Scheme Is A Sham

DEP fails to consider the environmental impacts of – including on air quality – and the risks of accidental wildfires caused by their “prescribed burn” program. There is no environmental impact statement that analyzes the program or unintended ecological impacts, see:

• Burning Down The House

Its all speculative bullshit, see:

•  Murphy DEP Pinelands Logging Plan Is Totally Unnecessary, Ecologically Destructive, And Will Make Wildfires Worse

The DEP can act with impunity, because: 1) the Legislature eliminated liability for damages caused by a prescribed burn; 2) DEP does not have to comply with any permit requirements or environmental standards, including public participation (Facebook, Instagram and Twitter posts and web portals don’t cut legal mustard); and 3) the DEP has co-opted and has the support of some conservation groups, see:

• NJ Conservation Groups Trying To Silence Critics of DEP’s Wildfire Logging Plan

I again demand that Legislators conduct oversight, but given Senator Smith’s failed forestry reform effort, I don’t expect even the courtesy of a reply:

Dear Legislators – Please conduct oversight hearings on these DEP plans. Allow the public to participate in DEP decisions that are destroying our forest resources. Force DEP to justify their “management” with site specific (NJ) science, conduct an open planning process with formal public participation and judicial review, and respond to public comments.