Editor’s note: This issue is currently dormant. We will continue monitoring the situation and may take up the issue in the future.

Overview

The Mohican Lake Homeowners, which only represented a portion of the residents around Mohican Lake, used the presence of an invasive aquatic plant (Myriophyllum spicatum) to conduct broad herbicide treatments in the tannic-water lake over the objections of other lake residents, particularly the Mohican Lake Resort.  Despite multiple problems with the permit applications and objections from lake residents, NYDEC issued permits in two subsequent years to allow herbicide treatments.  Clearly this was not intended to be an invasive species control effort, but instead an overall aquatic plant reduction effort (primarily native aquatic plants) to make the lake recreation more compatible with high-intensity uses (motor boats, water skiing, jet skiing) compared to passive recreation (kayaking).

 

Overview

Radnor Township is in the process of updating its stormwater ordinance. The current ordinance continues to allow an increase in the volume of stormwater runoff that results from new development and fails to require use of new and innovative stormwater designs to reduce runoff from redevelopment projects. The Commissioners have a great opportunity to fix these inadequacies of the past when they update their ordinance. 

Radnor has recently started to circulate a set of sample edits for review and input from township committees, the Delaware Riverkeeper Network has obtained a copy and below you will find our comments on the proposal.  The suggested edits are a good step forward, but miss some key opportunities, and the key focus of volume reduction.  To see DRN’s comments and expert report:  http://bit.ly/DRNRadnorSWComment
 
If you want to write a comment to urge a stronger ordinance that better protect Radnor’s communities and environments see our action alert.

Since new development can increase the volume of stormwater, scientific experts and both federal and state agencies support preventing and reducing the volume of stormwater runoff as among the most effective strategies for protecting communities from flooding. By reducing runoff volume, these strategies prevent the stormwater that otherwise causes or contributes to flooding. Stormwater strategies that reduce runoff volume also reduce runoff velocity and pollution. As a result, they provide protection to our properties, bridges and roadways from erosion; protect our creeks from pollution which helps reduce the cost of complying with state and federal laws, and make our creeks safer places for kids to visit, fish and play. 

By contrast, standard detention basins, the method of stormwater management largely used today, are merely designed to collect runoff and not reduce it. This out-dated engineering only ensures that nearly every drop collected in those basins flows to the creek where it continues to cause or exacerbate flood damages. It is important that the new stormwater ordinance in Radnor secure best practices based on current science and experience and not allow continued use of past practices known to increase the harms of flooding, pollution and erosion.

In addition, the Delaware Riverkeeper Network is active in watchdogging the stormwater advisory committee operating in Radnor and charged with making recommendations for how to invest the stormwater fee collective.  Our most recent comment can also be found below.

Overview

March 2012, the Delaware Riverkeeper Network, Maya van Rossum the Delaware Riverkeeper, seven municipalities, and Dr. Mehernosh Khan filed legal action challenging Act 13, which was signed into law by Governor Corbett on February 14, 2012.  Act 13 amended the Pennsylvania Oil and Gas Act, and was, without a doubt, an incredible overreach and giveaway to the gas drilling industry. Supportive legislators are quick to acknowledge that the industry helped them write the legislation displacing local zoning and providing automatic waivers for the minimal environmental protections, are among the many giveaways the law provided.

The plaintiffs challenged the new law on the grounds that, amongst other things, violated Article 1, Section 27 of the Pennsylvania Constitution and endangered public health, natural resources, communities and the environment.

On December 19, 2013, the Pennsylvania Supreme Court issued a final in the case Robinson Township, Delaware Riverkeeper Network, et al.  v. Commonwealth, 83 A.3d 901 (2013).  In the plurality opinion written by the Chief Justice of the Court, the justices vindicated the importance and power of the Environmental Rights Amendment of the Pennsylvania Constitution; it promised all generations of Pennsylvanians that they will benefit from pure water, clean air and a healthy environment, giving them the ability to defend that right in the courts if it is violated. While the amendment had been proposed by Senator Kury and added to the PA constitution in 1971, it was not until this legal challenge that the amendment was seriously considered by the PA Supreme Court.

In the wake of this victory, van Rossum researched constitutions across the nation and found only one other state had an amendment of this kind — what she has dubbed a Green Amendment.  Based on this victory and that realization, van Rossum founded the national Green Amendment movement.

The battle to fully define and defend the environmental rights of the People of Pennsylvania continues with important and incremental successes advancing each year.

Important court opinions that continue to advance the right in PA  include:

• Robinson Township, Delaware Riverkeeper Network, et al v. Commonwealth of Pennsylvania., Dec. 19, 2013 – Plurality Opinion
• Robinson Township, Delaware Riverkeeper Network, et al v. Commonwealth of Pennsylvania., Sept 28, 2016
• PEDF v. Commonwealth, June 20, 2017 — Opinion

In addition, we are starting to see government officials rely upon the Pennsylvania Green Amendment, Art 1, Sect 27, in decision making.  A great case in point is the decision by Governor Wolf to veto a bill that would have curbed the right of towns and cities to regulate use of plastic shopping bags – when announcing the veto the Governor said that its passage would have violated the Environmental Rights Amendment of the PA Constitution.

Article 1 Section 27 Campaign:

 In January 2019, a coalition of organizations and individuals called the Better Path Coalition organized a campaign to claim this right and tell Harrisburg that it’s time to uphold PA’s Green Amendment and be the climate and environmental champions we need. The Delaware Riverkeeper Network, as a proud member of the newly formed Better Path Coalition, worked with our partners to organize events celebrating Article 1, Section 27 of the PA Constitution—a day of action on Sunday, 1/27 and a delivery of this petition to every office in the capitol on Monday, 1/28 with the help of the children whose futures are on the line.

NEW UPDATE* December, 2020

The Board of Commissioners of Marple Township, PA voted unanimously to reject a proposed residential development plan that would clear-cut 89 acres of forest of the Don Guanella woods. The Don Guanella woods is a 178-acre forest that has provided many environmental, health and recreational benefits to Delaware County for years. The township Board of Commissioners knew they had an obligation to uphold Article 1 Section 27 of the Pennsylvania Constitution and the environmental rights of the people of Pennsylvania.

In presenting his argument to reject the proposal, Board Member Michael Molinaro said:

     I look at this as a fiduciary duty because as township officials, we’re elected to do what’s best for our township. And I’ve listened to people, and I’ve heard what they said, and I’m not going to say anything different because we have a duty under I believe under Article 1 Section 27 of PA constitution to protect and preserve the Commonwealth’s natural resources…I personally believe this [Article 1 Section 27] trumps everything else, any code you may have, any by right you say you may have, anything else. This is the role of us as municipal government is to protect our natural resources as best we can, especially when there’s not that many left. I mean if you look at Delaware County, and you look at this area, this is it. This is the last little piece that we have, and we’re not, and I’m not, going to let houses be built on it. So I believe this is our duty to protect these woodlands for not only us, not only Delaware County, PA, but also for future generations, so they can look back and say, ‘You know, this board stood up to this builder, and they did what was right.’

LEARN ABOUT PENNSYLVANIA’S GREEN AMENDMENT WITH THESE INFORMATIVE VIDEOS:

• Webinar: The Impact of Pennsylvania Green Amendments on Decisionmaking in Pennsylvania.
  Webinar by the Delaware Riverkeeper Network. Hear Jordan Yeager, the attorney who argued the first successful environmental rights case before the Pennsylvania Supreme Court talk about how recent court decisions, and the language of the Pennsylvania Green Amendment is impacted government decisions and actions.
• Webinar: Pennsylvania’s Environmental Rights Amendment in Practice
  Webinar by the Delaware Riverkeeper Network. Attorney Jordan Yeager covers how Pennsylvania’s Green Amendment has been applied in several case studies.
• Video: Pennsylvania: A Fractured State
  Learn more about Pennsylvania’s Green Amendment in the context of hydraulic fracturing.

SHAREABLE REVIEWS OF HOW THE PENNSYLVANIA GREEN AMENDMENT IS PROTECTING ENVIRONMENTS AND COMMUNITIES CAN BE FOUND HERE:

• Robinson Twp, Delaware Riverkeeper Network v. Commonwealth – pro-fracking law defeated as unconstitutional
• PEDF v. Commonwealth – misappropriation of environmental funds secured through fracking leases on public lands a constitutional concern
• Delaware Riverkeeper Network v. PADEP — failure of state to act to address decades of high level site contamination is a constitutional concern
• Marple Township Commissioners rely on Article 1 Section 27 to reject damaging development that would have devastated treasured woodland, the Don Guanella Woods
• Center Coalfield Justice v. PADEP – longwall coal mining permit revision unlawful as constitutional violation
• Friends of Lackawanna v. PADEP – landfill renewal permit ordered modified to address historic groundwater contamination
• PA Attorney General Empanels Grand Jury to investigate systemic failures of government regards to the environmental and community impacts fracking
• Gov Wolf Vetoes law that prohibited communities from instituting plastic ban protections 

For the most up to date information, please visit the Green Amendments For The Generations

October 12, 2022
The Environmental Rights Amendment: By and For New Yorkers

The passage of the Environmental Rights Amendment (New York’s “Green Amendment”) is great news for all New Yorkers, especially environmental justice communities and the wider climate justice movement. This presentation discusses the ERA and how we can collectively advance and strengthen its protections, focusing on the role of community and advocacy in this work.

Speakers:

• Prof Rebecca Bratspies, CUNY SChool of Law
• Anthony Rogers-Wright, New York Lawers for the Public Interest
• Maya van Rossum, Green Amendment For The Generations
• Michael Youhana, EarthJustice
• Moderator: Kate Kurera, Environmental Advocates NY

September 2020
A New York Green Amendment: Balancing Power and Equity in EJ Communities:

A panel discussion moderated by Mike Harrington, Assistant Director, Tishman Environment and Design Center. Panelists Include:

• Maya K. van Rossum, Founder, Green Amendments for the Generations
• Eddie Bautista, Executive Director, New York City Environmental Justice Alliance
• Kate Kurera, Deputy Director, Environmental Advocates NY
• Christine Appah, Senior Staff Attorney, New York Lawyers for the Public Interest Environmental Justice Program

What is a Green Amendment?

Green Amendments are self executing provisions added to the Bill of Rights section of a constitution that recognize and protect the rights of all people – regardless of race, ethnicity, religion or income, including future generations – to pure water, clean air, a stable climate, and healthy environments.

What’s Happening in New York?

In 2017, Assemblyman Steve Englebright first proposed bill A6279, New York’s Green Amendment. A parallel provision has been proposed in the NY Senate by Senator David Carlucci. While the bill was solidly supported in the Assembly the Senate fell short. But two years later, in 2019, the bill was repurposed and began to advance.

On April 9, 2019, Green Amendments For the Generations, key New York lawmakers and a coalition of groups announced plans to push for approval of a Green Amendment Bill by the New York legislature. Watch the press conference here.

As of April 30, 2019 the New York legislators, in both the state Assembly and Senate, voted for first passage of a proposed amendment to the NY State Constitution (A2064/S2072) that would recognize and protect the inalienable right to clean water, clean air and a healthful environment. The vote count was overwhelmingly in support of passage with senators voting for passage 45 to 17 and the Assembly members voting 110-34.  90 organizations have signed on to a letter in support of the first passage.

As of February 9, 2021 both the New York State Senate and Assembly voted to add a Green Amendment (A1368/S528) to the state constitution. The NYS Senate voted 48-14 for second passage and the NYS Assembly voted 124-25 for second passage. The bill will be placed on the New York state ballot for the people to vote upon in November.

While for years there have been provisions discussing various environmental issues in Article XIV, the provisions do not have the high level strength needed to recognize the inherent and indefeasible rights of people to a healthy environment and to provide those rights the same level of protection given to the right to free speech, to freedom of religion and other fundamental rights the people of New York hold dear. But New York is poised to remedy that with its Green Amendment proposal.

Who Are Our NY Partners?

Green Amendments For The Generations has been working with the Delaware Riverkeeper Network, Environmental Advocates NY, and the NY Chapter of the Adirondack Mountain Club to support constitutional level protection for environmental rights in New York’s constitution.

Catch up on our New York Green Amendment Virtual Events

Our Three Part Webinar Series:

• Part 1: Overview – Watch here!
• Part 2: A Legal Perspective – Watch here!
• Part 3: Taking Action – Watch here!

Resources to help you learn more and spread the word.

Find lots of fact sheets, webinars, and more at our Green Amendments For The Generations resources page.

MUNICIPAL RESOLUTIONS

• Town of Brighton (Monroe County)
• Town of DeWitt (Onondaga County) (2020-12-7)
• Town of Ulysses (Tompkins County) (2019-04-24)
• Village of Interlaken (Seneca County) (2019-03-21)
• City of Kingston (Ulster County)
• City of Newburgh (Orange County)
• Tompkins County
• Warren County (2020-10-14)

What is a Green Amendment?

Green Amendments are self executing provisions added to the bill of rights section of a constitution that recognize and protect the rights of all people. regardless of race, ethnicity, religion or income, including future generations, to pure water, clean air, a stable climate, and healthy environments.

What’s Happening in New Jersey?

In 2020 the proposed Green Amendment bills ACR80/SCR30 (formerly ACR85/SCR134) were re-introduced to the New Jersey legislature.

As of October 2020, the proposed NJ Green Amendment has 43 sponsors in the Assembly and 12 sponsors in the Senate. Click here to see if your legislator is signed on! If they have not, consider reaching out to them and sharing your opinion on this powerful environmental protection idea.

As proposed the New Jersey environmental rights amendment would read as follows:

1. Every person has a right to a clean and healthy environment, including pure water, clean air, and ecologically healthy habitats, and to the preservation of the natural, scenic, historic, and esthetic qualities of the environment. The State shall not infringe upon these rights, by action or inaction.
2. The State’s public natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations. The State shall serve as trustee of these resources, and shall conserve and maintain them for the benefit of all people.
3. This paragraph and the rights stated herein are (1) self-executing, and (2) shall be in addition to any rights conferred by the public trust doctrine or common law.

On the Senate side there is bi-partisan support. Senator Linda Greenstein (D-14) has led the charge and been joined by Senator Kip Bateman (R-16) to advance SCR30. On October 15, 2018, a bipartisan super-majority of the Senate Environment Committee passed SCR134. If you are interested to learn more about the impact of the proposed NJ Green Amendment, you can view the hearing at this link – the testimony was interesting, insightful and educational.

On the Assembly side, Assemblywoman Nancy Pinkin is joined by Assemblyman John McKeon and Assemblyman Daniel Benson as the primary sponsors of ACR80.

View all the sponsors of the bill here.

How and When did this all start in the great state of New Jersey?

November 30, 2017, New Jersey Assemblyman Tim Eustace, joined by Maya van Rossum, the Delaware Riverkeeper, Assemblywoman Pinkin and Assemblywoman Sumpter, announced new legislation that, if passed, would amend Article 1 of the state constitution to recognize that “Every person has a right to a clean and healthy environment….”, that the State has a duty to serve as trustee of the state’s natural resources, and must conserve and maintain them for the benefit of all people. Since its original proposal there has been significant forward progress.

You can also help us demonstrate support for passage of a New Jersey Green Amendment by signing the petition today and be sure to share it with your friends. Read the petition and sign on here.

Overview

At our October 5, 2019 event, co-sponsored by our partners Sussex Health and Environmental Network (SHEN), Socially Responsible Agriculture Project (SRAP), and Green Amendments For The Generations, and where we were joined by our other active partner the Delaware Audubon Society, it became overwhelmingly clear that the people of Delaware see the value and importance of having a DE Green Amendment.

The Campaign

The campaign is beginning with the grassroots, informing communities about the benefits of a Green Amendment and collecting petition signatures to demonstrate to that a Green Amendment is widely supported by the public.  As our coalition, development and movement in the state grows there will be more opportunities to learn and get involved.

While our planned gathering for the spring got derailed by the pandemic, we are reassessing the best next step to keep folks informed and engaged.

New Webinar Available: Socially Responsible Agriculture Project’s virtual summit on Agriculture, Engagement & Solutions featured Maya van Rossum for a session on the Green Amendment where she discussed why the rights to clean air and water matter.

Read the petition and sign on here and be sure to share it with your family and friends.

Take action to support a Delaware Green Amendment here.

Overview

For the Generations: Ensuring Constitutional-level environmental protections for healthy people and quality lives; for today’s generation and tomorrow’s. Our right to pure water, clean air and a healthy environment are inherent fundamental rights retained by the people. There can be no life, liberty or happiness without a healthy environment.

The Groundwork has Been Laid for a New Era of Environmental Protection:

While for years the Pennsylvania environmental community has looked to the promise of Pennsylvania’s constitution and its promise of “pure water”, “clean air” and “preservation of the natural … environment”, the fulfillment of that promise had for a long time alluded them; consistently swept aside by the Pennsylvania legislature and its courts. So much so that when the Delaware Riverkeeper Network included the PA Constitution’s Environmental Rights Amendment as a cornerstone of our legal attack on the pro-drilling legislation known as Act 13 many in the community derided us as wasting our limited legal briefing space and resources. 

IMG_0640.JPGBut, the Pennsylvania Supreme Court, in Robinson Township, Delaware Riverkeeper Network, et.al. v. Commonwealth (Dec. 19, 2013), vindicated the importance and power of the Environmental Rights Amendment of the Pennsylvania Constitution; it promised all generations of Pennsylvanians that they will benefit from pure water, clean air and a healthy environment, giving them the ability to defend that right in the courts if it is violated.

The Pennsylvania Supreme Court decision should inspire a new generation of environmental protection in Pennsylvania – inspiring strong, environmentally protective legislation by newly emboldened and empowered legislators, and supporting strong litigation when industry dollars are used to drive bad legislation and bad political acts. The decision should also inspire other states, and even the federal government, to construct their own social contracts promising pure water, clean air and healthy environments for present and future generations.

A New Initiative

The Delaware Riverkeeper Network is establishing a new initiative, For the Generations, to: 

• to ensure that the Pennsylvania Environmental Rights Amendment is further strengthened in the wake of the PA Supreme Court Decision; 
•     to pursue and secure constitutional protection of environmental rights in states across the nation; 
•     to pursue and secure recognition of environmental rights at the federal level through constitutional amendment; and 
•     to ensure governments at the local level, state level, and federal level honor the rights of all people to pure water, clean air and healthy environments in the laws they enact, the decisions they make, and the actions they pursue.

If you would like to talk about how you can begin a movement in your state to secure meaningful constitutional environmental protections for present and future generations check out our resources on this page and reach out to the Delaware Riverkeeper Maya van Rossum (email at keepermaya@delawareriverkeeper.org) to talk about the situation in your state and how you can help make a change.

A copy of the Supreme Court decision Robinson Township, Delaware Riverkeeper Network, et.al. v. Commonwealth can be found here.

How Your Organization Can Partner Up:

Our win in the historic case of Robinson Twp, Delaware Riverkeeper Network vs. Commonwealth of PA not only secured substantive authority for the PA Environmental Rights Amendment, but it secured a declaration of the inherent and indefeasible nature of the rights to pure water, clean air and a healthy environment that should provide better protections for Pennsylvanians and Inspiration for other states to pursue these rights. 

How can we join forces to make it happen?

If you are an organization in Pennsylvania: We are at a critical stage now with this Supreme Court decision — it is important we are working together to advance advocacy and litigation that will strengthen the PA Supreme Court ruling and that will prevent the industry and the state from undermining it. Because future interpretations and applications of the PA Supreme Court decision Robinson Twp, Delaware Riverkeeper Network vs. Commonwealth will have statewide implications, including for the Delaware River watershed, and because the Delaware Riverkeeper Network played such a key role in securing this historic environmental win, we have created the Generations Project and are working with individuals and organizations throughout Pennsylvania to advance it through both advocacy and when appropriate through litigation. 

The Delaware Riverkeeper Network has a legal program that allows us to pursue these kinds of cases. But as with any legal action it is important we have strong local partners to help ensure we have participated in the process from early on, and we need members that are affected so as to support our legal standing in the courtroom. So if you are interested in joining forces with the Delaware Riverkeeper Network to advance the findings of Robinson Twp, Delaware Riverkeeper Network vs. Commonwealth consider signing your organization up as a member, and encourage your individual members to do so as well. 

As with all litigation where the Delaware Riverkeeper Network is a part and provides the legal resources, our organization will be a lead plaintiff in the case providing resources, experienced decision making, and a collaborative spirit. 

If your organization would like to join sign up here.

Be sure to sign up your local organization, and also to encourage your individual members to join, so we have all the representation we need to withstand the inevitable challenge by the industry to get the case dismissed attempting to assert we are not adversely impacted by the actions we are challenging. 

If you are an organization outside Pennsylvania:

If you are an organization outside Pennsylvania who would like to learn more about how to pursue and secure a successful Environmental Rights Amendment, to discuss legal strategy for advancing or replacing an existing constitutional provision, to be on the cutting edge of what we hope will be a growing nationwide movement to advance the cause of securing constitutional environmental rights for everyone in the nation and in so doing advancing the message that thesis a right for everyone in the world, then please contact Maya van Rossum, the Delaware Riverkeeper (keepermaya@delawareriverkeeper.org) to joining the For the Generations movement. 

Related

Delaware’s Green Amendment For The Generations

New Jersey’s Green Amendment For The Generations

New York’s Green Amendment For The Generations

Pennsylvania’s Green Amendment For the Generations

Overview

Act 13, also known as HB1950, was signed into law by Governor Corbett on February 14, 2012. 

Act 13 amended the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development. It also established an impact fee on natural gas. 

The  Delaware Riverkeeper Network, Maya van Rossum in her capacity as the Delaware Riverkeeper, Dr. Mehernosh Khan, and seven municipalities filed suit on March 29, 2012 challenging the law on the grounds it violates the Pennsylvania and United States Constitutions and endangers public health, natural resources, communities and the environment. The municipalities participating are: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley, Bucks County. 

The named Appellants are the Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission (“PUC”); Office of the Attorney General of Pennsylvania; and the Pennsylvania Department of Environmental Protection (“DEP”).

Oral argument was held before the PA supreme court on October 17, 2012.

The Pennsylvania Supreme Court

The Pennsylvania Supreme Court issued its decision on December 19, 2013. In that decision the Pennsylvania Supreme Court ruled that Act 13 violates the Pennsylvania Constitution on the grounds that it violates the Environmental Rights Amendment. In doing so, the Court held that the right to pure water, clean air and a healthy environment are fundamental rights that must be given high-priority consideration and protection by every level of Pennsylvania’s government. The Court’s decision also struck down the shale gas industry’s effort to force every municipality in the state to allow gas drilling and related industrial operations in every zoning district. The Court’s decision upheld the ability of local governments to protect their local communities and natural resources through zoning. Chief Justice Castille authored the historic majority opinion. Justices Todd, McCaffrey and Baer joined in the result. 

Justices Castille, Todd, and McCaffrey held that provisions of the law violate Article I, Section 27 of the Pennsylvania Constitution – the Environmental Rights Amendment. Justice Castille stated that “we agree with the citizens that, as an exercise of the police power, Sections 3215(b)(4) and (d), 3303, and 3304 are incompatible with the Commonwealth’s duty as trustee of Pennsylvania’s public natural resources.” In discussing Section 3304’s uniform zoning provisions, Justices Castille, Todd, and McCaffrey agreed that the provisions “sanctioned a direct and harmful degradation of the environmental quality of life in these communities and zoning districts.” They also concluded that the Act forced some citizens to bear “heavier environmental and habitability burdens than others,” in violation of Section 27’s mandate that public trust resources be managed for the benefit of all the people. 

Justice Baer concurred in finding Act 13 unconstitutional, agreeing with the Commonwealth Court’s reasoning. Justice Baer stated that the provisions “force municipalities to enact zoning ordinances, which violate the substantive due process rights of their citizenries.” He further noted “Pennsylvania’s extreme diversity” in municipality size and topography and that zoning ordinances must “give consideration to the character of the municipality,” among other factors, which Act 13 did not.

The State requested the court reconsider its opinion and the  Delaware Riverkeeper Network and the seven towns opposed the request.

Overview

For years PSE&G has been seeking approvals from the Nuclear Regulatory Commission to construct a new nuclear power plant on Artificial Island, right next to the two existing nuclear plants:

    Salem Nuclear Generating Station & 
    Hope Creek.

There are many dangers to constructing this new power plant.  It would be constructed on wetlands, in the floodplain, in a reach of river that will be subject to increasing flood risks with the onslaught of sea level rise and climate change.  

The Delaware Riverkeeper Network has proactively opposed NRC licensing.

The US Army Corps of Engineers has sought to enter into a land swap with PSE&G that would give them the lands they need for Salem 4, while giving the Army Corps a new area in Logan Township and Oldmans Township, NJ to construct a confined disposal facility for the dumping of dredge spoils. 

In This Proposed Land Swap:

 the Army Corps would be the recipient of 354 acres of land located in Oldmans Township, Salem County and Logan Township, Gloucester County, NJ; and 
    PSE&G would, in exchange, be the recipient of 631 acres (94 acres of CDF and 537 acres of coastal wetlands) on Artificial Island. 

July 15 the Army Corps issued an Environmental Assessment of the land swap that ignores the reality that it paves the way for construction of Salem 4, and does not well consider the implications of the CDF on New Jersey communities or the River.  See the Delaware Riverkeeper Networks’ comments listed below.

The Delaware Riverkeeper Network wrote its first letter to the Army Corps opposing this idea way back in 2010 when it was still just an idea. Now we are leading the challenge to the idea as the Army Corps begins to work to press it to fruition.

Delaware Riverkeeper Network has remained in opposition to the landswap that would provide the property needed for this project to advance. To date, the land swap did not advance.

In 2020, New Jersey put forth a proposal to build a Windport project on the very same site.  If that project were to advance the landswap would not advance apparently displacing the opportunity for Salem 4.  The Delaware Riverkeeper Network is proud that our opposition to landswap helped to prevent it from advancing and bringing us to a point where the project may be unable to advance due to a lack of the needed proposed site.

The Salem Nuclear Generating Station is the Largest Predator in the Delaware Estuary.  Delaware Riverkeeper Network continues our multi-year legal challenge to defeat the permit that allows the unprecedented fish kills inflicted by Salem unnecessarily as there is an alternative technology that would reduce those kills by over 95%.

Overview

The Salem Nuclear Generating Station, located on Artificial Island in Salem County, NJ kills over 14 billion Delaware River fish, eggs and larvae every year impingement and entrainment including: 

• Over 59 million Blueback Herring 
• Over 77 million Weakfish 
• Over 134 million Atlantic Croaker 
• Over 412 million White Perch 
• Over 448 million Striped Bass 
• Over 2 billion Bay Anchovy 

(Source: correspondence from US Fish & Wildlife Service to NJDEP, June 30, 2000 relying on PSE&G permit application data)

By retrofitting the Salem plant with a closed cycle cooling system those fish kills could be reduced by over 95%.  

In the past, rather than require this existing, used and proven technology, the State of NJ has primarily allowed PSE&G, the owner and operator of Salem, to “mitigate” its fish kills by changing the ratios of vegetation in wetlands.  The problem is, this program does nothing to reduce the fish kills and according to PSE&G’s own data is not improving fish habitat or fish abundance in the Delaware River.  Court rulings, of which the Delaware Riverkeeper Network has been a part, have made clear that mitigation is not an appropriate path for fulfilling the requirements of the Clean Water Act to minimize these fish kills.  

Salem’s permit expired in July, 2006.  February 2006 PSE&G submitted a permit renewal application. As a result the facility has been allowed to continue to operate under its expired permit.  

DRN Work

In October 2013, the Delaware Riverkeeper Network filed on behalf of the Delaware Riverkeeper Network, New Jersey Sierra Club and the New Jersey Environmental Federation initiating a legal action requesting an order demanding that the NJDEP take action on PSE&G’s permit renewal application for the Salem Nuclear Generating Station located in Lower Alloways Creek Township, New Jersey.  

On November 13, 2014, the Delaware Riverkeeper Network, New Jersey Sierra Club and Clean Water Action settled their legal action against the New Jersey Department of Environmental Protection (NJDEP) and in-so-doing have secured a commitment from NJDEP to issue a draft discharge permit to PSE&G’s Salem Nuclear Generating Station by June 30, 2015. Issuance of the draft permit will cause NJDEP to take a position on whether the facility’s cooling water intake structures, which kill more than three (3) billion fish per year, must be updated to significantly reduce these fish kills and the facility’s water usage. Once the draft permit is issued the public will have a chance to submit comments and thereafter challenge any final NJDEP decision if it believes NJDEP has not required the proper level of environmental protection at the facility.

June 30, 2015, complying with the settlement agreement, the New Jersey Department of Environmental Protection (NJDEP) issued a draft permit. The permit largely allows PSE&G to operate Salem business as usual – that means drawing in over 3 billion gallons of water a day to use in their cooling operations, killing over 3 billion (with a ‘B’) fish a year, discharging super heated water into sensitive estuarine waters, along with other pollutants. 

The State

While the State took 9 years to craft and issue this draft, they only gave the public 60 days and 1 hearing in which to review and comment. And both the comment period and the hearing occured during the height of vacation season (July and August with the hearing on August 5). Nonetheless, the Delaware Riverkeeper Network submitted significant comments and expert reports on the draft permit issued by NJDEP for public comment.  Amongst the findings of our experts:

• Two major analyses show that stopping the killing of fish with closed cycle cooling could provide economic benefits worth up to $577 million….. ECONorthwest, p. vii
• 14.7 billion fish a year are impinged and/or entrained at Salem.  Closed cycle cooling at Salem would reduce this mortality by over 12.8 billion.  ECONorthwest, p. 4
• 14.7 billion fish impinged & entrained at Salem a year translates into 360 million fish killed in an average year that, but for Salem, would have survived to age one. ECONorthwest, p. 4
•  “The total installed cost of [closed cycle cooling at Salem] ($852 million) represents about 31 percent of the companies [PSEG & Exelon, Salem’s owners] combined annual capital expenditure, and the annual loan payment pf just two percent.”  ECONorthwest, p. 24
• Installing closed cycle cooling at Salem “would increase electricity rates by $0.0036 per kWh.”  ECONorthwest, p. 25

Copies of the Delaware Riverkeeper Network comment and expert reports can be found at:

• DRN Comment
• DRN Expert CEA 21527 Salem Generating Station Report
• DRN Expert EcoNW Final Report re Salem NGS

Despite the signficant expert, legal and factual challenges contained in our permit, on June 10, 2016, NJDEP issued a final permit that allowed PSEG to essentially continue business as usual when it came to their operations that result in the killing of over 14 Billion fish, eggs and larvae every year from our Delaware River.  In response, on July 8, 2016 the Delaware Riverkeeper Network filed a legal challenge with the Office of Legal Affairs in New Jersey’s Department of Environmental Protection seeking a new hearing to review the renewed permit issued by NJDEP to PSE&G’s Salem Nuclear Generating Station located on Artificial Island in Salem County, NJ. The permit, as issued, would extend the Salem facility’s use of once through cooling (OTC), a controversial technology that has been challenged as being outdated, unnecessary, and responsible for annually killing billions of fish, including the endangered Atlantic sturgeon. 

Throughout the legal battle NJDEP has sought to hide information from the public, forcing the Delaware Riverkeeper Network to have to engage in lengthy battles to gain access to text messages and emails sent by NJDEP staff regarding the issue and to secure the right to depose key NJDEP staffers who worked on the permit.  Finally, on October 28, 2019, the New Jersey Office of Administrative Law granted the Delaware Riverkeeper Network’s motion to compel the deposition of three New Jersey Department of Environmental Protection (NJDEP) employees regarding the Salem Nuclear Generating Station’s New Jersey Pollution Discharge Elimination System (NJPDES) permit and to secure access to emails that had so far been denied the organization.  While the Judge did not require NJDEP to produce unredacted pre-decisional drafts of the 2015 draft permit and the 2016 final permit, he overwhelmingly found in DRN’s favor on other requests. In a decision issued October 28, the judge granted DRN’s motion to compel the production of relevant emails.  In addition, finding DRN demonstrated good cause, the judge granted the Delaware Riverkeeper Network’s request to take the depositions of key NJDEP employees. The judge’s determination in part states, “I CONCLUDE that petitioner has demonstrated “good cause” – specifically there has been a showing that information requested is highly technical in nature and cannot be obtained in other ways.” 

To read the judge’s letter order, click here.

 NJDEP appealed the October ruling. In a remarkable twist, in this administrative proceeding, the arbiter to whom the NJDEP appealed was the head of the NJDEP, Commissioner Catherine McCabe. On December 16, 2019, Commissioner McCabe ruled against DRN’s right to take the depositions of three NJDEP employees.  In her ruling, Commissioner McCabe suggested that allowing the depositions would “set a precedent that makes depositions routine in all permitting matters and will cause an undue burden on the Department.” 

Despite this unsavory legal development, discovery in the case has continued to advance as has our legal challenge. It has been a slow slog but we continue to pursue this precedent setting legal challenge essential for protecting our Delaware Estuary and the fish and aquatic life essential ecologically, recreationally, and economically.

On a related note:  on August 13, 2019, once again, the Delaware Riverkeeper Network has reached out to the National Marine Fisheries Service (NMFS) to urge them to take action protect the endangered Atlantic Sturgeon of the Delaware River.  Time and again we have reached out about the excessive takes of sturgeon by both the Army Corps of Engineers and by PSEG’s Salem Nuclear Generating Station.  Every time they turn a blind eye. When will it stop? See the letter and horrific photos here.

Fact sheets discussing previous battles with Salem:

• Salem – Killing both marsh and fish
• Salem — A Report on NJPDES Special Conditions
• Salem — Killing both marsh and fish Fact Sheet #2
• Salem — Largest Predator in the Delaware Estuary
• Salem Nuclear Generation Station’s License to Kill