Introduction:
Dear Citizens and Elected Officials:
On the morning of Wednesday, January 2, 2019, before many New Year hangovers had been cleared away, the Maryland Board of Public Works voted 3-0 in Annapolis to deny an easement to Columbia Gas Transmission, one of many subsidiaries of the powerful energy company, TransCanada Corporation. The easement would have allowed them to bury their 8 inch, 3.37 mile long (the Maryland portion of two other segments, one in PA and one in WVA) gas pipeline under the Western Maryland Rail/Trail near Hancock, Washington County, and under the Potomac River.
This vote came as a great surprise to many activists, those who had hung tough over two seemingly very long years of public hearings, picketings, protests, letter writing — but never a meeting with the Governor himself, despite one gathering which encircled his official Annapolis home with a ring of candle-lit protesters on the evening of February 15, 2018. Indeed, the word most often appearing on green lips in the press accounts of the vote was “stunned” — and happy, of course.
Before I take a closer look at the proceedings, the arguments and the very complex jurisdictional process — American “Federalism” at its best or worst — let me frame up the big questions that have gone unanswered now even two weeks after the decision was announced. First, Republican Governor Larry Hogan once again surprised nearly everyone, but most of all the environmental community, by voting with the two Democrats on the Maryland Board of Public works to deny the easement: the Legislature’s representative, Treasurer Nancy Kopp, and Maryland’s elected Comptroller, Peter Franchot. This follows upon Governor Hogan’s surprise support to ban fracking in Maryland in March of 2017. Are the two decisions connected? Does this represent a shift of Governor Hogan to the “left” on climate issues, putting him more in tune with the growing national pressures from 2018’s dramatic, inescapable weather calamities and increasingly dire official “forecasts” (one from the U.N. and one from our own Congressionally mandated study. See here for more details on the growing seriousness of the crisis: www.dailykos.com/… and here: www.dailykos.com/…) Is the Governor reconsidering his support, especially behind the scenes, to bring more natural gas to Maryland? Do the two Democratic votes on the Board signal any shift of the party away from natural gas?
The supporters of the Clean Energy Jobs Act, which would push the state to 50% Renewable Energy sources (rather loosely defined, unfortunately) by 2030, assert that they have veto proof majorities in both Houses in Annapolis, and they probably do. But the provisions of that bill are only an indirect clash, if that, with the state’s dependence on natural gas, which is the principle heating source for 44% of the state’s households. It’s not clear to me that the Democratic Party is ready to take on the natural gas industry in a head-on clash, (in a state known for avoiding head-on clashes, dating back at least to its conflicted legacy with slavery, powerful slave owners, and our Civil War) not yet, even as we await the first draft of a bill to toughen the state standards for approving gas pipelines via The Pipeline and Water Protection Act of 2019. I write here with caution, with the dynamics of the 2018 Maryland Gubernatorial election fresh in my mind, with Democrats, including many prominent ones, refusing to support their candidate Ben Jealous, a climate hawk, and voting for Larry Hogan instead. I broke with Ben Jealous as well, after being a strong supporter in the primary, but not on environmental grounds.
Now I’ve been cautioned by one political observer, who has lots of election experience as a consultant in the tough world of Florida politics, to go easy on Governor Hogan, don’t speculate about his motives, that the way to move him to be a better green Governor is to applaud loudly when he does the right thing. That’s often good advice, but I’m not sure it fits with what I’ve seen before us in this complex, convoluted matter. And I’ll explain in more detail below why that is. For now, however, Governor, Treasurer Kopp and Comptroller Franchot, indeed, thank you for that vote against the pipeline.
Part One: Two Years of “Accommodating” Maryland Signals
We also must ask ourselves, we greens, and citizens less committed, with our eyes wide open: how does the gas industry itself view this decision, not just TransCanada but the broader industry? How do they view the stakes here? There are two conflicting parts to that question. The actions against pipelines have gained international attention as the green opposition tactics have escalated to famous sit-ins and “occupations.” One of President Trump’s confirmed appointees for the crucial Federal Energy Regulatory Commission (FERC), which has jurisdiction over the siting and permitting of interstate gas pipelines, Robert Powelson, from Pennsylvania (from their Public Utilities Commission), has been quoted as declaring that “’pipeline fighters were engaged in jihad.’” (Here at stateimpact.npr.org/… ) He also, in March of 2017, criticized Governor Hogan for banning fracking in Maryland: here at stateimpact.npr.org/… Do I have to add that he voted in a 3-1-1 vote with FERC on July 19, 2018, to approve the Potomac Pipeline, to grant it a “Certificate of Public Convenience and Necessity?”
And let us not forget the rising American chorus, since November, for a Green New Deal, pushed by the Justice Democrats and the increasingly visible Sunrise Movement. Forty-five Congressional representatives, all Democrats, including Maryland’s Jamie Raskin (D-8) and Dutch Ruppersberger (D-2) have signed on in less than two months. National press coverage is growing, and two Democratic Presidential hopefuls, Senators Elizabeth Warren and Cory Booker have signaled their support. So when a “moderate” Republican governor, self-described, votes to stop even a small pipeline to serve a limited service area, the eastern “Panhandle” portion of West Virginia, and perhaps just a few companies, including Rockwool (a manufacturer of insulation) will the national gas powers view this as a “tradeable” decision, as they may have done with the loss of fracking of the limited gas shale in Maryland’s two Western counties, Allegany and Garrett (although Commissioner Robert Powelson didn’t seem to share that view back in the spring of 2017)?
That’s a tough call from where I sit, so let me be clear, this a speculative line of questioning, as is the possibility that Governor Hogan and the gas powers have engaged in an informal trading process removed from everyone’s scrutiny: horse-trading about the ecological political economy. This is not to paint Governor Hogan as a devil, far from it. Let’s recall that good green writers like Bill McKibben have put California Governor Jerry Brown under the same analytical glare for the policy inconsistencies of his concessions to the oil and gas industry for new drilling leases, even as his state is one of the country’s leaders in renewables (they haven’t solved the natural gas “dependency” questions either...).
Before I try to illuminate the important jurisdictional problems involved with this pipeline decision, in other words, just which governmental entity is “sovereign” — the Federal Energy Regulatory Commission, the infamous FERC, which has never turned down a gas pipeline over the last thirty years of votes, posing as the champion of the rights of Interstate Commerce, very powerful rights, or Maryland’s also powerful Board of Public Works, defender of Maryland’s fiscal and physical integrity, which allegedly has never had a major decision overturned in Court, (I could not uncover one) let me issue my own jurisdictional clarifications.
I’m writing as a sympathetic green journalist, who nonetheless has his own code of writing, that demands trying to see the whole playing field without illusions; meaning I try to put myself in the mindsets of all the various interests before us: local citizens, politicians, regulators, professional environmentalists. Therefore I’d better state that I was very active, on the ground and in writing about the successful campaign to ban fracking in Maryland, my home group being Frack Free Frostburg. On the Potomac Pipeline, I was a happy participant on a glorious fall day, October 14, 2017, in the Hands Across the Potomac protest, with hundreds of participants linking the green interests of two states, Maryland and West Virginia, literally on the MD- Route 34 (the Shepherdstown Pike) bridge, aka the James Ramsay Bridge, across the Potomac between Sharpsburg, MD and Shepherdstown, WVA. It’s been hard to forget that day: the college town around Shepherd University, with its many late 18th century buildings still intact, a thriving business district, and the slow approach journey through the doors of national memory, haunted by what happened at the Antietam battlefield in September of 1862. And seeing many solar panels glistening in nearby fields.
It’s also hard to forget what I said in testimony just a few months later, in the Hancock, Maryland public hearing (the Maryland Department of the Environment hearing) on December 19, following the protest outside the Hancock Middle School: that the driving force (not the only one, though) behind the protest against the pipeline came from the latest science, that we had to keep most of the remaining fossil fuel minerals in the ground, not burn them, a finding that surely Ben Grumbles, the Secretary of the Maryland Department of the Environment had heard of, but perhaps did not agree with; and surely had yet not translated into laws and regulations, leaving opponents of the pipeline and the regulators themselves dependent on legal structures enacted entirely prior to the Age of Climate Disruption and the realities of Global Warming, which I will, for shorthand convenience, date from James Hansen’s Congressional testimony from 1988 (but we now know scientists at Exxon had understood them, correctly, earlier).
I had my grave doubts that a Republican governor, and an anti-regulatory one at that, who had been promoting gas deals behind the scenes, would ever take a stand which, symbolically at least, threatened the interstate prerogatives of powerful national gas interests. And which left him, and Maryland “politicians” so open to the charge of hypocrisy, which the designated “Dean” of West Virginia radio broadcasters, Hoppy Kercheval reminded them of on January 4, just two days after the Board of Public Works’ decision: “According to the U.S. energy Information Administration, Maryland imports four-fifths of its energy — mostly coal and natural gas — from other states...it also signifies rank hypocrisy of policy makers from a state that must rely on rights-of-way in other states for a portion of its energy, while denying that same access to a neighbor.” (Here at wvmetronews.com/… )
And so I plead guilty to having been a pessimist on this issue after that December testimony, and now pay due deference to those who did not give up, kept the pressure on FERC, the Governor, the MD Department of the Environment, and yes, even the National Park Service which has yet to declare its opinion about issuing a easement to go under the Chesapeake and Ohio Canal National Historic Park. Without the perseverance of the Eastern Panhandle Protectors, Frack-Free Frostburg, the Potomac River Keeper Network, the Chesapeake Climate Action Network, the MD chapter of the Sierra Club and the Waterkeeper Alliance, the Governor and the Board of Public Works probably would not have voted the way they did. Granting that, does the Board know something we don’t, have legal guidance we haven’t seen, and have they been privy to discussions of grand bargaining that constitute insider’s political knowledge?
Well, shortly after the surprising decision was announced, and after watching the live video of the meeting on January 2, I was on the phone with Sheila McDonald, the Executive Secretary of the Board of Public Works, who also is a very experienced attorney, asking about the “legal basis” of the decision. After all, we didn’t learn much from the comments of the three board members who voted against the easement. Comptroller Peter Franchot was perhaps the most direct with a reason: there were considerable environmental risks and no economic benefits for Maryland for a pipeline which was delivering gas to another state. That common sense reasoning, often advanced by the green advocates and general public in their testimonies, might just have some legal reasoning in it too, after reading the Constitutional language, from 1864, which set up the Maryland Board of Public Works to guard the state’s fiscal and physical integrity. The Governor was not much help on the reasoning behind his decision, choosing instead to take a slap at the 64 legislators, some not yet seated, who sent him a letter drafted by Delegate David Moon of Montgomery County, which was explicit in wondering how a state which had banned fracking could sanction a pipeline sending fracked gas from Pennsylvania, through and under Maryland, and on to West Virginia. The Governor chose to shed no light on policy consistency, despite most of his administrations earlier signals flashing green, not red, however, and noted rather sharply that those 64 Delegates (a substantial number of the 141 in the Chamber) had no influence on his laudable decision.
That’s why I called the Board and asked Ms. McDonald if there were documents available to the public which might shed further light on the decision making; she said no, even when I chided her that “surely on a decision like this, with major corporations directly involved, there must at least a 55 page advisory opinion from the Attorney General’s office to guide the Governor.” She demurred and said I would have to ask the offices of each of the three members about that. Which I did in follow-up phone calls on January 3rd, but to no avail. I learned nothing about the background or legal turning points, and have discovered nothing since then. Now that’s power: power that’s sure of its standing to say so little on such an important matter. But then again, if it’s a trade, or perhaps the “certainty” runs in the opposite direction: they are certain that the decision will be overturned legally in forums far outside their reach, as FERC and/or the gas companies perhaps know this is too important, symbolically, or substantively, not to challenge it.
Part Two: Navigating the Complexity — without an Effective Global Warming Compass — or Braking System
I am therefore skeptical this is going to stand, or if it does without legal challenge, that it represents a grand turning point in Governor Hogan’s thinking on the role of natural gas, or the Democratic Party’s, for that matter. Here’s why. It’s time then, to get into the jurisdictional problems as to who has the power to make this decision, and the poor angles of legal attack that the Greens have, trying to stop Climate Disruption/Global Warming, represented by the methane releasing gas industry, traditional and fracked, and the huge Octopus of their infrastructure ambitions, which one private sector study said would generate 850 miles of interstate transmission lines and 13,850 gathering lines, “every year until 2035.” And by those poor angles of attack, I mean the lack of recent statutory/regulatory language which explicitly sets some type of limits on the amounts of Green House Gases that a given project can emit, individually or cumulatively for an industry or region, in a specified period of time. That’s because the scientific, if not the political hour, is very late: calling for calculations and studies which quantify the proposed project’s emissions without setting limits is whistling past our society’s , and nature’s, graveyard. There was deep tragedy, and symbolism, in Paradise Lost this fall.
First and foremost in terms of jurisdictional lines, and struggles over who has the final say, would be the Federal Energy Regulatory Commission, which was given the power in 1938 to regulate Interstate gas line projects, to site them and certify them, chief among other duties as well. According to one critic writing at the Huffington Post, over the last 20 years FERC has approved 450 pipeline projects, good for more than 23,000 additional miles, and going back a full thirty years, has turned down just one. Here at www.huffingtonpost.com/…
A Columbia Law School-Sabin Center for Climate Change Law paper from March of 2016 had this to say about the agency:
As noted in a recent law suit, FERC’s natural gas program budget is funded by fees imposed on the very companies it regulates, and perhaps because of this, FERC approved all of the pipeline applications it received during a thirty year period and never once concluded in an EA (Environmental Assessment) that a project would have significant environmental impacts.
The footnote attached to the above statement refers to a Complaint for Declaratory and Injunctive Relief filed by the Delaware River Keeper Network in 2016, and it documented the fact that “in the past thirty years, FERC has never granted a rehearing request to a non-industry party; the Commission has adopted biased policy objectives in favor of pipeline companies; and the Commission has left unfunded a Congressionally authorized office designed to assist non-industry parties in participating in the Commission’s administrative process.”
Given this abysmal track record of FERC’s in saying no to any pipelines, even as the case against that “pass through” grows with the mounting evidence of damage from Global Warming/Climate Disruption, environmentalists have been straining to employ another tool. And that tool is the grandmother of environmental laws, the National Environmental Policy Act, better known as NEPA which was pushed through Congress by the late Senator “Scoop” Jackson in 1969, and which became effective January 1, 1970, a “pioneer” statute. NEPA must be applied by federal agencies to evaluate the environmental effects of all significant projects before them for permitting, whether it’s the U.S. Air Force, the Forest Service or Bureau of Land Management - or FERC.
Greens assert that NEPA, properly understood, should be used to consider the full ramifications, including cumulative effects of previous similar approvals, of gas and oil pipeline projects, including their impacts upon air quality and global warming. Thus the full title of the Columbia Law School/Sabin Center article is “Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review” (by Michael Burger and Jessica Wentz, March, 2016). By upstream is meant the pollution and other environmental impacts of extracting the resource and getting it ready for transport, and by downstream is meant all the infrastructure stops that pipelines require, and the leaks generated, as well as the impact of the end use — usually combustion — of the product the lines are carrying. The authors note that courts have required this for the rail lines built to carry coal (under the jurisdiction of the Surface Transportation Board) but “by contrast, courts have not yet issued any decisions requiring analysis of upstream or downstream emissions in NEPA reviews for oil and gas pipelines.” But wait, it gets murkier:
Agencies almost never conclude that greenhouse gas emissions are significant, but they do frequently state that such emissions are insignificant because they represent only a small portion of U.S. or total emissions. In its revised draft guidance, CEQ (Council of Environmental Quality) has stated that such statements are not helpful, but CEQ has not specified a significant threshold for greenhouse gas emissions.
The CEQ was set up in the Executive Branch of the Federal government by NEPA so that federal environmental policies could acquire at least some degree of coordination. But even though the Obama Administration issued final CEQ guidance for GHG emissions in NEPA analyses, in August of 2016, so just before leaving office, I am unaware that any “significant threshold...for emissions” emerged.
That’s less than what was delivered by President Obama’s Clean Power Plan, announced in August of 2015. That Plan did come up with numerical standards for C02 emissions for power plants, chiefly threatening to older, coal burning ones, but the plan created great leeway in how and when these limits would be used, starting in 2022. All manner of off-sets and trading was allowed to the states, of course now jeopardized by the directions of the Trump Administration. But the point for my purposes here is that it is in the “climate” of our times to usually evade specific emission limits either for particular projects, or for categories of projects: to say to FERC that it can only approve 10-25% of the gas line projects which come before it after 2019 due to the historical impacts of previous projects and the dire state of Climate Disruption revealed by the weather events of 2018, and the two major climate reports, or that projects that generate over X number of metric tons of GHG’s per year can no longer be approved. And going a step further, especially in terms of approving only a percentage of gas line applications, or new gas power plants, it makes so much sense to get a clear regional picture, best suited to the current RTO’s - the Regional Transmission Authorities which control the electric grid - like the East’s/Midwest’s PJM, to coordinate those gas facilities which are most needed in terms of an overall climate defense plan. But these RTO’s are missing the formal Green and public participation requirements, and the new policy directives to guide them. And in the case of PJM, they have become major trading platforms for energy futures, derivatives, pure speculation, in addition to the more traditional players who generate or convey electricity physically into one part of the grid or another. Readers who want to know more about these matters can look here www.dailykos.com/...and here www.dailykos.com/…
The legal skirmishing over NEPA’s required scope and content on Greenhouse Gas emission analyses surfaced explicitly in FERC’s published decision, on July 19, 2018 to grant the Certificate of Public Convenience and Necessity for the Potomac Pipeline project. You can read the full 53 page decision here at www.ferc.gov/… and see how FERC responds to the criticism by the environmental groups, on these NEPA aspects, the unsatisfactory analysis of the Environmental Assessment on “upstream, downstream and cumulative” Greenhouse Gas impacts, climate change impacts. FERC Democratic Commissioner Richard Glick dissents on exactly these grounds, stating the Commission failed to carry out the proper analysis that he feels NEPA requires.
Let’s set this contested legal ground aside for now: so far it leaves FERC still in command of the playing field, with Greens grappling for legal leverage but failing to do so partly because of the institutional leanings of this federal agency, and partly because NEPA itself is being asked to carry more climate weight that it was intended to bear. There are, however, five cases contesting the unfulfilled NEPA aspects from recent rulings.
There is yet another dimension to American federalism, however, as it applies to this case, and others like it, and it’s that the Clean Water Act (CWA of 1972) left the final say on federally reviewed projects’ impacts on state waters and wetlands in the hands of the states, under Section 401. Let me translate this for you. A state can enact stronger protections for its wetlands and waters than the federal parent statute requires, and if in its careful consideration, a project’s impacts would violate those tougher standards, it can reject the project and has the clear authority to do so. However, the state of Maryland chose not to exercise this authority in its Department of the Environment announcement of March 16, 2018. And this despite the apparent impacts to 19 streams and wetlands in just the 3.37 miles the pipeline was slated to traverse in the state. Regional environmentalists had the precedents of New York state blocking gas pipelines using this 401 authority in mind, specifically the “Constitution Pipeline,” a 120 mile long project in that state (with a much smaller portion in Pennsylvania) which would have impacted 85 trout quality streams, 85 acres of wetlands and 500 acres of forests (clear cut) according to the Natural Resources Defense Council, which happily reported that the U.S. Supreme Court refused to hear a challenge of the pipeline company to the New York State Department of Environmental Conservation ‘s decision to deny a permit on 401 grounds. Here at www.nrdc.org/…
Here’s the irony of this: 401 CWA challenges to pipelines can be an effective tool provided state water and wetlands laws are clear and tough, but these levers have nothing to do with fighting Climate Disruption/Global Warming on its own polluting terms; instead the legal challenges rest on entirely different impacts.
Maryland’s refusal in March of 2018 to fully utilize the 401 tool was upsetting to the Green objectors to the pipeline, and I put that piece of evidence about state attitudes, Governor Hogan’s, especially, right next to some comments that Maryland Secretary of the Environment Ben Grumbles made just a month before, in February of 2018, when he participated in a conference call with environmentalists. I was not on this call, nor had I read anything about it until I came across an article by Alex Mann of the Capital News Service, here at cnsmaryland.org/…
Grumbles is quoted as stating, in reaction to the Green participant views on the call, that ‘’ ‘ their basic viewpoint is that if you ban fracking you have to ban the use of natural gas infrastructure’...but he said ‘natural gas is a bridge fuel to clean energy.’” He then went on to further clarifications: “Maryland needs ‘an array of tools and strategies to reach its climate goals’...and natural gas infrastructure at ‘the right place and right time makes a lot of sense, with the appropriate protections...It’s irresponsible to say we should be banning (it).’”
I hope that readers can now better understand my cautions on what the 3-0 decision from the Maryland Board of Public Works means for future Climate Change considerations. If indeed the Governor has had a change of direction from his Secretary of the Environment’s views, he didn’t indicate that in his post decision comments on January 2nd.
Editor’s Note: I’ve barely mentioned one last dangling angle of American Federalism: The National Park Service has not yet signaled its intention, whether it will grant an easement under its linear park, the Chesapeake & Ohio Canal National Historic Park. My sense from my environmental career in NJ dealing with the Park Service, is that a decision like this, high profile, with legal ramifications affecting another major federal power — FERC — is that it won’t be made at the local superintendent’s level, but rather higher up the Park Service’s chain of command, into the Trump appointees’ domain. I would be very surprised if they issued a “no go,” and so I haven’t devoted a lot of attention to what I see as their constrained power.
Conclusion and a Look Ahead to the New Session in Annapolis
The events of 2018 - weather and official findings of the likely future damages - have changed the whole framework for evaluating our decisions on fossil fuel infrastructure. The climate left wants to dramatically reduce the role of natural gas, and it appears to me that Secretary Grumbles is not ready to go that far, and I’m sure that’s the position of a good part of the Democratic Party as well. Grumbles is at least partly right: I agree that there is a transition role for gas as solar and wind climb in their percentage of electricity generation, and coal and nuclear fade out, but I think he underestimates the power of the gas industry and the hold it has over the two parties. As I hope I have demonstrated, if we are to effectively bend our present institutions to stop Global Warming, the legal and regulatory tools we currently have are grossly inadequate, their fragmented and indirect nature ineffective in posting “No Crossing” and “Stop Signs” - and very confusing to the public.
In Maryland, we have a Commission on Climate Change, and I’ve testified before it and shared my views here at the Daily Kos — www.dailykos.com/… Let’s just say that the Commission is about as effective, and with about the same degree of urgency, as the late, first President Bush’s “Thousand Points of Light” program: dazzling at first to the eye, but failing to deliver institutional change on the scale needed.
I invite Daily Kos readers to consider where the climate left is today starting with the outline for the goals of the Select Standing Committee for a Green New Deal — that we didn’t get despite the support of 45 House members and two Presidential candidates, here at the Sunrise Movement’s site: www.sunrisemovement.org/…
It would be out of the very public process in putting together a national plan that the legal and legislative strategies would unfold that would supply us with the missing language to slow down and then stop, the continuation of the fossil fuel infrastructure juggernaut. The outline for the bill to authorize the Committee takes just six pages. And there is a longer version, 39 pages, perhaps not as sweeping, supplied by the Justice Democrats here at www.dataforprogress.org/… For those who want to take an even deeper plunge, into how not only new legislative language ought to be created, but new institutions to carry out the changes we need, then it is worth a visit to the The Climate Emergency’s Victory Plan, 110 pages but very readable, here at www.theclimatemobilization.org/…
It is from these bold and comprehensive national visions — especially the uniting of economic goals with environmental goals under the banner of a Green New Deal — that I shape my own criteria for judging what’s on the table for Maryland in the new Legislative Session in Annapolis, which began on January 9, 2019. The Clean Energy Jobs Act is on the table again from the 2018 legislative stall, and is heading in the right direction of more renewables, on a faster timetable, even as it has dodged the political challenges in cleaning up the polluting definitions of what qualifies as such. It does raise the question, however, given what it is dodging, of whether Maryland’s cautious political establishment — in both parties — is ready for where we have to go via a Green New Deal.
The Maryland Pipeline and Water Protection Act is clearly intended to build upon the powers that the state could utilize under the 401 Clean Water Act provisions, and indeed, it will require the state to conduct the full study under them when evaluating pipeline projects — and there are surely more to come.
There will also be a Highway-Climate Study Bill proposed, aimed at Governor Hogan’s massive lane expansion program for I-495 (the Beltway) and the North-South running I-270, as well as the Baltimore-Washington Parkway...hundreds of lane miles (400 hundred or so) and billions of dollars, which demand, given our Climate Disruption crisis, a full study of what will be emitted when they are built…
Remember, however, what we have uncovered in looking closely at the Potomac Pipeline “case study”: what is missing is the clear criteria for saying no in most of our current state and federal laws, on climate impact grounds. I have made a recommendation, too late probably for this session, that perhaps a more effective interim step for our state would be to develop a paragraph to be inserted into all major state statutes, which would give the Commissioners or Secretaries of the various agencies the power to deny the relevant project permits on climate impact grounds, with the broad discretion resting upon their final review administrative powers. I saw such language in the Commissioner’s hands of the New Jersey Department of Environmental Protection, for NJ’s coastal law, called “CAFRA,” where,
§ 13:19-11... if the commissioner finds that the proposed development would violate or tend to violate the purpose and intent of this act as specified in section 2 of P.L.1973, c.185 (C.13:19-2), or that the proposed development would materially contribute to an already serious and unacceptable level of environmental degradation or resource exhaustion, the commissioner may deny the permit application, or the commissioner may issue a permit subject to such conditions as the commissioner finds reasonably necessary to promote the public health, safety and welfare, to protect public and private property, wildlife and marine fisheries, and to preserve, protect and enhance the natural environment.
I now offer this to our green legal and legislative “eagles” for consideration, recognizing that it is an interim measure, and perhaps rests too arbitrarily on the powers of good appointees, greener ones than are now the holders of such positions. But the language does begin to directly grapple with the heart of a “cumulative impact” analysis, that, given our GHG levels today, because of all the “not so bad” projects approved in the decades preceding, we have reached a limit we cannot go beyond.
Good luck to us all in 2019
Bill of Rights
Frostburg, MD
PS I wanted to again, and publicly this time, thank April Keating and Kevin Campbell for being tour guides on October 26, 2018, for a day long tour of fracking sites, fracking infrastructure, and especially the gas pipelines which claw their way up and down the steep slopes which surround the many streams in the famous “hollers” and narrow valleys of West Virginia. It’s hard to imagine that the projects, given the remarkable terrain, could meet any state’s 401 tests, but I guess they do in WVA. We were on the unpaved back roads in Doddridge County, off State Highway 50, in the vicinity of West Union and Central Station. Our guides are with the Mountain Lakes Preservation Alliance and the Doddridge County Watershed Association. You can find them here at www.mountainlakespreservation.org and here at www.facebook.com/… It takes courage to do what they do, and they have demonstrated it time and time again.