Instead of writing of the many negative things going on in NJ, I wanted to write about something positive.  My inspiration for this post literally flew into mind.  For Earth Day, I want to write about two things.  First, below is a picture of a raptor that was eating its dinner on my kid’s swing set last night.  It was amazing.  It was the first time I had seen something like that so up close and so close to home.  It fascinated my kids.  I want my children to have many experiences like this.  I want my children to be able to have free access to a healthy environment.  It is moments like this that drive me to continue to lobby for the environment and to be part of the solution.

Bird eating its dinner

The second thing I wanted to write about was more of a challenge.  What is one thing that you can do today that will make the environment better?  It does not have to be a major item.  It could be something little.  It could be picking up a piece of litter you see on the ground. It could be taking a short shower instead of a long one.  You could choose to drink tap water instead of bottled water.   What will you do to do today?

There were two very significant bills.  The first modifies NJ land use laws.  P.L. 2009 C. 146 adds the definition of inherently beneficial to the land use statutes.  Up to now what was inherently beneficial was determined on a case by case basis and only after litigation.  The recently enacted law defines inherently beneficial (for the first time) to include “wind, solar or photovoltaic energy facility or structure.”  Being inherently beneficial is very useful for land use applicants who are seeking a D variance from their local land use board.  D variances are the toughest to get and require the applicant to show that the positive aspects of the project outweigh the negatives.  If your proposed project is inherently beneficial you automatically meet the positive requirements of a D variance.  What is left is showing that the proposal does not create a substantial detriment to the public good and will not substantially impact the zone plan and township ordinances.

Another law that will have far ranging implications is P.L. 2009 c. 244.  This law goes even farther than P.L. 2009 c. 146.  In essence this bill requires municipalities to allow small wind turbines within their borders.  The bill provides that municipalities “shall not unreasonably limit such limitations or unreasonably hinder the performance of such installations.”  Under the bill municipalities cannot enact ordinances that unduly restrict the installation of renewable energy.  A small wind energy system or turbine is one which is primarily for onsite consumption of electricity.  It is considered an unreasonable for a municipality to:

• Prohibit small energy systems in all districts within the municipality
• Restricting tower height by applying generic height ordinances that does not make allowance for tower heights.
• Requiring setbacks more than 150 percent of the system height.
• Setting noise level lower than 55 decibels.
• Setting electrical or structural criteria that exceed the applicable UCC standards

This is a very important step forward for wind turbines in NJ.  It will not remove all barriers to the installation of wind turbines as a town could require a setback of 150% which many property owners may not meet.  Given that the towers for small wind energy systems are rated for hurricane winds, the setbacks really are overly restrictive.

P.L. 2009 c. 35 provides that on industrial property of 20 or more acres solar and wind systems are permitted uses.  This would prevent municipalities from requiring variances for the installation of these systems.  An applicant would only need a construction permit to install these kinds of systems.

P.L. 2009 c. 33 requires developers of new residential housing to offer as an option to their purchaser’s solar energy systems.  This requirement applies developments of 25 units or more.  The systems also must be covered under the New Home Warranty and Builder’s Registration Act.  Interesting the Legislature set out a section of findings prefacing this law.  The State has declared that, “[t]hat the installation of even small scale solar energy systems will combat global warming and reduce the nation’s dependence on foreign energy sources, resulting in a significant environment benefit.”  I would suggest a similar finding can be found for wind in the State of NJ.

P.L. 2009 c. 289 revises our electricity generation laws.  In particular it increases the amount of electricity that utilities selling power in NJ have to get from solar sources.  The law also changes the requirement from a percentage of total electricity generation to absolute numbers.  Under this law the State of NJ is requiring that utilities supply either directly or purchase from other generators the following gigawatt hours of electricity generated from solar systems:

After 2026 the State will still require at least 5,316 Gwhrs of electricity from solar sources.  The law allows for the number of Gwhrs to be increased.

The law also permits that the above schedule can be increased by 20% if in the three preceding years there were enough or excess SRECs to meet the requirements and the average price of SRECs in the same three years decreased.

The State changed the system from requiring a percentage of energy to absolute numbers because of the intent in the Energy Master Plan to reduce overall all energy demand.  If the RPS requirements remained as a percentage the State would start generating less electricity from renewable energy sources the more successful the EMP was.

The next two are not renewable energy bills but also fairly significant for the energy usage of NJ.

P.L. 2009 c. 106 requires the Department of Community Affairs to develop new enhanced energy codes.  These codes are based upon the projected energy costs for the next tens years.  The enhanced energy codes shall be designed to increase energy conservation for buildings.  In 2006 buildings accounted for 39% of the energy use in the United States.  So by enhancing the energy efficiency of new or renovated buildings will go a long way to reducing greenhouse gas emissions and overall energy usage.  The new codes are to be set so any increased in cost to meet the new codes will be paid back within seven years from the reduced energy usage.

Lastly, P.L. 2009 c. 33 allows BPU to give grant money to install energy efficiency, renewable energy, reduction in peak demand, and reduction in energy usage for commercial and industrial business with high peak demand.  As industry is one of the largest users of energy in NJ some have argued that more money should be spent to help them reduce their energy demands and thus help NJ reduce its consumption of fossil fuels.  I am frankly not that convinced that industry should be given this kind of hand out given that many of these energy efficiency, renewable energy systems will pay the company back in a relatively short time frame.

All of these new laws move renewable energy in NJ forward. They make it less expensive to buy, obtain permits and install.  The laws improve the market for renewable energy by creating a greater demand.  While NJ has moved forward we still have some road to travel.  There are several bills being considered for the 2010-2011 legislative session that will again impact NJ’s energy and environmental future.  I will look at these bills in a future post.

Other related posts:

My children are not so lucky.  And that is a shame.   Over the Labor Day weekend, my kids picked up several pieces of garbage that had either been left on the beach by thoughtless people or had washed upon from the ocean.  To my pride they put the garbage in the garbage where it belonged.  This is what they and I saw as we took a short walk one evening (excuse the photography).

Around the same time I was looking at the garbage on the beach, 24 syringes washed up on the beaches of Long Beach Island over a few days period.  A news article ,written by Michelle Lee of the Press of Atlantic City, reported that LBI’s health officer believed that the syringes were because of combined sewer overflows and bad surf.

People need to stop littering at the beach and off their boats.  Government needs to upgrade combined sewer overflows that that garbage cannot be washed out to see.  Government needs to enforce the litter laws and anti-dumping laws.

Our coastal environment is too important to treat it as a place to dump our garbage.  It is too important to our economy.  It is too important to a tradition that my and many families in New Jersey have.  I do not want to ever have to explain to my child why a condom is floating past them in the ocean or that they have to watch were they walk on the beach so that they do not step on glass or syringes.  I want them to see and enjoy the beauty of New Jersey’s shore.

None of the Site Remediation Program’s bureaus interviewed do any project assessment and/or process improvement beyond data validation, (i.e. no field audits, no split samples, no internal assessment, etc.)  The EPA assessment team was told that Responsible Party contractors and/or NJDEP contractors are “certified professionals and taken at their word.

It is kinda scary to think that DEP has a culture that allows for a complete disregard for the statutory and regulatory requirements.  We have seen over the last several years the impacts of DEP not confirming the information they have received from outside contractors.  I.e. W.R. Grace, Edison Ford plant, etc.

This audit report should be viewed in light of the recently enacted Licensed Site Professionals Law.  The LSP law deputizes outside contractors to decide how contaminated a site is, how best to clean the site and to determine the site is now clean and to issue the equlivant of No Further Action letters.   Once the LSP program is up and running will DEP continue to be so trusting?

When the LSP bill was racing through the legislature Environmental Organizations, including the NJEL, strenuously argued that DEP need to engage in aggressive oversight.  DEP fought enviros on this as well as enviros’ request that DEP maintain control over the worst sites.    The end result is that DEP cannot audit LSPs or even require the LSP board to audit an LSP.  DEP can merely recommend that an LSP receive an audit.  In fact the DEP’s ability to review or audit a site is mostly limited to document reviews and “shall review the performance of a remediation.”  §21b.  Another section of the law provides that DEP and LSP board can “investigat[e], sampl[e], inspect[], or copy[] any records, condition, equipment, practice, or property”  Even if DEP has the authority, will they overcome their culture of trusting the “professionals” and will they independently verify the information they receive from the professionals to ensure that sites are remediated and the environment and our health are protected.

The preliminary permit is the first step in a multistep process before permission is granted to install and operate the turbines.  The issuance of a preliminary permit only allows NCES to the study the environmental impacts of the proposed project and will provide priority for NCES’ application for permits to install and operate the project.   The preliminary permit does not allow NCES to actual install the turbines and operate them.  Once the studies are complete than an applicant to apply for a FERC license.

NCES is proposing to study the site’s geology, navigation and local marine ecology during the preliminary permit period.  The study will look at the proposed project’s impact on fish and marine animals between January to December 2009.  For example, NCES is proposing to study the impact of fish passing through the turbines between May and August 2009.   As part of the permit application process various Federal and State agency filed comments to the application.  According to the National Marine Fisheries Service, the proposed project location is habitat for eighteen federally managed species.  Some of these species are: winter flounder, windowpane, Atlantic butterfish, summer flounder, scup, black sea bass, alewife and blueback herring.  NMFS is concerned that the proposed studies are not designed to give adequate data on the impacts of the turbines on the fish populations as it is scheduled for times where some fish are not present.   Therefore, NMFS is suggesting the studies continue for a full year.

Now that the permit has been issued, NCES has 45 days to submit a schedule. They must also submit reports every six months on the project.  Hopefully, FERC and the other interested agencies insure that the applicant crafts the studies to be meaningful and not merely to minimize any possible negative results.  Once all the data is collected then during the licensing process it can be determined whether tidal turbines make sense for this location.

If the site is appropriate it will help NJ meet its class 1 renewable goals of 22.5%.  Wave and tidal generators are classified as Class 1 renewable energy.  It is interesting that while this permit had been filed during NJ’s energy master plan process, there is barely any mention of wave or tidal energy as part of the recently issued EMP.   What role should tidal power have or can have in NJ?  Also, should NJ encourage these kind of projects in the State and if so how?

The second change is that DEP has announced they are going to disband the Division of Science, Research and Technology.  In its stead will be an Office of Science and an advisory board. I believe that it is vitally important that there be a robust science component within DEP that is actively engaged in scientific research and review of others research.  Without this component than DEP is at the mercy of outside organizations for their information.  Information that forms the basis of regulations, permits, etc.  This has the potential of allowing bad science to become generally accepted and used for the basis of protecting our environment.  Industry funded research should not be the basis DEP uses to write regulations, technical guidance or issue permits.

As I re-create the blog and all of its features, I would like to take this opportunity to seek feedback.  Please let me know know what you like about the site and what you do not.  What do you want to see in future posts?  Why do you read the blog and how do you get it?  (rss feed, email, or old fashion go to the site).  Please email me at mike@fplegal.com with your comments and suggestions.

Thank you,

Mike Pisauro

While the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate changes . . . That is why I am taking administrative and regulatory action to make certain the ESA isn’t abused to make global warming policies.

The press release further made it very clear that this listing would not be used to prevent the exploitation of oil reserves in the arctic. This is clearly a miss on protecting the environment and on forward thinking on climate change. Unfortunately nothing better could have been expected from the current administration.

Once I have had a chance to read the actual proposal, I hope to provide more detail.  In the meantime the NRDC has some good information (click here).