Murphy vetoes minutes of board allied with Sweeney

New Jersey Senate President Steve Sweeney is pictured. | AP Photo
New Jersey Senate President Steve Sweeney Ryan Hutchins reports for Politico:

Gov. Phil Murphy this week vetoed the minutes of a South Jersey board stacked with allies of Senate President Steve Sweeney after the directors refused Murphy‘s request to cut ties with the agency’s general counsel.

Murphy rejected all actions the board of the South Jersey Port Corporation — a 50-year-old agency that operates marine shipping terminals across seven counties — took at its July 31 meeting. It was the first time Murphy has exercised his power to block actions by a state board since he took office in January.

In a letter sent Monday to the corporation’s acting executive director, the governor cited numerous issues, including finding “absolutely no evidence that the corporation conducted a fair and objective procurement process.”

“The lack of attention to governance procedures is inexcusable,” Murphy wrote in the letter, which was obtained by POLITICO.

The governor, who has clashed with Sweeney over a number of policy issues, was primarily concerned with the decision to renew a contract with General Counsel Raymond Zane, a former state lawmaker, according to three sources familiar with the issues that led to the veto.

Sweeney ousted Zane from the Senate in 2001, but the two men later became allies.


The sources, all of whom spoke on condition of anonymity to characterize the behind-the-scenes squabble, said the governor’s office had made it clear to the corporation’s board members that they believed Zane was not serving the agency’s interests. In particular, the governor’s staff cited Zane’s handling of what the front office considered “credible accusations of sexual harassment in the work place,” the sources said.

While the employee who faced the accusation ultimately retired, Zane had indicated “that some comparatively minor level of reprimand would be sufficient despite the intensity of the sexual harassment,” one of the sources said, declining to discuss details of the case.

The governor’s staff told the board that Murphy would veto the minutes if Zane was given a new agreement, the sources said. But the board voted anyway, approving his firm and six other incumbent law firms for new professional services agreements. Just one member, a designee of the state treasury, voted “no.”

“The board basically responded that this is essentially Steve Sweeney’s pick,” one of the sources said.

Sweeney said Tuesday evening that he wasn’t familiar with the issues surrounding the governor’s veto and that he was not involved with Zane’s appointment as general counsel.


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NJ Supreme Court upholds ‘extreme violation’ of preserved farmland law but raps state on guidelines

Farmland


New Jersey Supreme Court rules that alterations to field destroyed it for other agricultural uses, criticizes state for failing to give clear guidelines on what’s allowed on preserved agricultural land


Tom Johnson reports for NJ Spotlight:

The owner of preserved farmland in Franklin Township violated the law when it excavated and leveled 20 acres in building temporary greenhouses, the New Jersey Supreme Court ruled yesterday.
In a 38-page decision, the court found the resulting destruction of “prime’’ soil constituted a violation of deed restrictions on the preserved land even though new buildings for agricultural purposes are a permitted use.
To farmland advocates, the case is significant because it upholds one of the prime purposes of farmland preservation: retaining those lands permanently for a variety of agricultural uses by future generations.
“The preservation of high quality soil and open space for future generations is one of the chief aims of the Farmland Preservation Program,’’ Justice Barry Albin wrote for the court. “Although Quaker Valley had the right to erect hoop houses, it did not have the authority to permanently damage a wide swath of premier quality soil in doing so.’’

It all started with a hailstorm in 2007

The case involved a family farm of 120 acres that became part of the farmland preservation program in 1993. The Matthews family had owned the farm for over a hundred years, harvesting corn, wheat, oats, soybeans and hay on the land.
The dispute arose a decade after Quaker Valley Farms LLC, a wholesale horticultural business, purchased the deed-restricted land in 1997. In September 2007, a hailstorm damaged a crop of chrysanthemums on a 20-acre field, saddling the owner with a million-dollar-plus crop loss.

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The EPA is seeking to “veto” its own veto authority?



K&L Gates attorneys Ankur K. Tohan, Cliff L. Rothenstein, 
Endre M. Szala and Tad J. Macfarlan report:

On June 26, 2018, in one of his final acts as Administrator of the U. S. Environmental Protection Agency (“EPA”), Scott Pruitt issued a memorandum [1] that has set in motion a process to amend the regulations that govern the agency’s exercise of its “veto” authority under Section 404(c) of the Clean Water Act. [2] The memo directs EPA staff to prepare a proposal, within six months, that would potentially curtail EPA’s authority to effectively bar development projects that require a Section 404 dredge-and-fill permit from the U.S. Army Corps of Engineers.
As background, Section 404 of the Clean Water Act authorizes the Corps (and state agencies with delegated permitting authority) to issue permits authorizing the discharge of dredged or fill material into regulated waters at “specified disposal sites.” [3] However, the statute provides EPA the authority to “prohibit” or “withdrawal” the specification of any area as a disposal site when it determines that a proposed discharge will have an unacceptable adverse effect on water supplies, fisheries, wildlife, or recreational areas. [4] This is commonly known as EPA’s “veto” authority because the EPA can effectively veto a project that would otherwise be authorized under Clean Water Act permits issued by the Corps by prohibiting construction in areas for which there is no reasonably available alternative disposal site. EPA currently administers its veto authority through regulations that were last amended nearly four decades ago, in 1979. [5] To date, EPA has used its final veto authority only 13 times. [6] 
The new memo grows out of concerns surrounding EPA’s prior use of its veto authority before a Section 404 permit application had been filed—i.e., a “preemptive” veto—or after a permit had already been issued—i.e., a “retroactive” veto—rather than in the midst of the permitting process. [7] Recent examples include EPA’s proposed preemptive veto of a high-profile copper and gold mining project near Bristol Bay, Alaska in 2014 (which remains pending), [8] and its 2011 retroactive veto of a coal mining project in Logan County, West Virginia. [9] Both of these cases spawned substantial litigation [10] and caused many observers (including former Administrator Pruitt) to question whether in the future “the mere potential of the EPA’s use of its section 404(c) authority before or after the permitting process could influence investment decisions and chill economic growth by short-circuiting the permitting process.” [11]
In response to these concerns, former Administrator Pruitt’s Memo directs EPA staff to prepare and provide to the White House Office of Management and Budget a proposal within six months (before the end of 2018) that would consider and seek public comment on the following changes: 
  • Eliminating EPA’s authority to veto a project before a permit application has been filed. 
  • Eliminating EPA’s authority to veto a project after a Section 404 permit has been issued. 
  • Requiring EPA regional administrators to obtain approval from EPA headquarters before initiating the Section 404(c) veto process. 
  • Requiring the completion of environmental review under the National Environmental Policy Act before preparing and publishing a proposed veto determination. 
  • Requiring EPA to publish and seek public comment on final veto determinations before those determinations take effect.
While former Administrator Pruitt is no longer in office following his July 5 resignation, all indications are that the new Acting Administrator, Andrew Wheeler, will forge ahead with the rulemaking process initiated by his predecessor. Administrator Wheeler has publicly expressed his commitment to the regulatory agenda pursued by Pruitt prior to his departure and he has strong ties to the mining industries which, of all industries, were most negatively impacted by EPA’s application of the agency’s veto power under the Obama administration.


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Edward A. Hogan of Norris McLaughlin & Marcus elected as Fellow of American College of Environmental Lawyers

Edward A. Hogan, Esq.
The American College of Environmental Lawyers recently announced the election of 24 new Fellows and two Honorary Fellows.
Included in this group of attorneys from throughout the nation is Edward A. Hogan, a Member of law firm Norris McLaughlin & Marcus, P.A., and Co-Chair of its Environmental Law Group.  
ACOEL President, John C. Cruden, stated that the lawyers elected as Fellows to the College “include the top environmental lawyers in government service, public interest, academia, and private practice drawn from across the country. These individuals, chosen by their peers, have earned this recognition based on achievements over a minimum 15-year period, during which they have led the field in diverse areas of environmental law and policy.”
ACOEL is an association of distinguished environmental lawyers whose members are admitted by invitation only. ACOEL members are dedicated to maintaining and improving the ethical practice of environmental law, the administration of justice, and the development of environmental law at both the state and federal level.
Hogan represents and counsels developers, redevelopers, manufacturers, commercial entities, and highly-regulated service businesses in all aspects of environmental law and litigation.
He earned his J.D. from Georgetown University, his M.F.S. from Yale University School of Forestry and Environmental Studies, and his B.S. from Saint Peter’s University.

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Map zeroes in on Delaware River watershed pollution

A new interactive map shows threats, old and new, to the vital water source. It underlines challenges that remain for a river that ‘has come back from the brink’

Tom Johnson reports for NJ Spotlight:

Delaware River

Credit: Steve Guttman/Flickr CC
Delaware River
It is the longest free-flowing river east of the Mississippi, the source of drinking water for more than 15 million people and a dynamic natural resource providing billions of dollars in economic activity.
But the Delaware River Watershed faces numerous threats from both longstanding and persistent pollution. A new interactive map developed by Environment New Jersey Research & Policy Center aims to pinpoint those challenges and help identify ways to address them.
“The Delaware River is a vital source of water for drinking, wildlife, and recreation,’’ said John Rumpier, clean-water program director at Environment America Research & Policy Center. “But as our map shows, we still have work to do to ensure that the watershed is — and remains — as clean as we want it to be.’’

Map of Delaware River Basin showing sites of industrial pollution and hazardous waste: Click to expand/collapse
The challenges, identified in the interactive map, are fourfold, perhaps the most troublesome involving urban runoff fouling the Delaware River and its 216 tributaries. The map also looks at the pollution threats from hundreds of industrial facilities discharging wastewater into the basin, and thousands of hazardous-waste sites in the region, including more than 100 Superfund sites.
While investments have led to improvements in water quality, more than 250 sewage-treatment plants remain to discharge effluent in the watershed. Many are antiquated, still putting much pollution into the river and other waters, according to Rumpier. At another 350 locations, combined sewer-overflow systems carry stormwater and raw sewage into waterways during times of heavy rain.
Finally, the map identifies the legacy of the region’s reliance on fossil fuels — more than 150 active and abandoned coal mines in eastern Pennsylvania and the millions of barrels of oil shipped on the Delaware each year.

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Striking workers in New Jersey assured jobless benefits

Daniel J. Munoz reports for NJBIZ:

Gov. Phil Murphy inked a law Friday that extends jobless benefits to striking works.
The measure, Assembly Bill 3861, was among 19 bills signed by the governor. It had passed out of the Assembly by a 48-25 vote and a 23-14 vote in the Senate.
Under the new law, workers will be allowed to access unemployment compensation during a strike if the labor dispute was caused by the employer’s noncompliance with an agreement or existing labor laws, according to the legislation.
The workers would be subject to a 30-day waiting period unless the employer hires a permanent replacement worker. If not permitted to return to work, the former employer would have to provide back pay lost during the 30-day waiting period.
Friday’s law takes effect immediately and applies to any unemployment claims made after July 1.
Former Gov. Chris Christie vetoed a similar measure in 2016.

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