NJ Gov. Murphy Just Effectively Privatized The Black Bear Population

September 18th, 2018 No comments

Executive Order Blocking Bear Hunt on Public Lands Contradicts Science and Law

Gov. Murphy’s Statement Contradicts “Ineluctable” NJ Supreme Court Ruling

Caveat: I have not been following the bear hunt issue and am not a legal or technical expert on bear management, but I just learned that back on August 20, 2018, Gov. Murphy issued Executive Order #34 that effectively blocked the bear hunt on State lands, but allows it on private lands.

Although I have not followed this issue closely, based on reading the documents, it seems pretty clear the Gov. got it wrong and is ducking the issue.

Under the misguided – and I argue illegal – Murphy policy, it is private landowners who will decide if there is a bear hunt. Private landowners will decide if, when, and where a hunt occurs. Private landowners will decide who hunts, effectively usurping State power to issue hunting licenses and regulate hunting. Wealthy private landowners also will extract a rent, by charging hunters access fees – a premium in addition to State license fees.

That makes bear hunting a private privilege – just like some billionaire’s and elite hunting clubs prefer.

None of this is legal and all of it is wrong.

Bears obviously do not live or migrate according to the ownership of lands that comprise their habitat. The Gov.’s distinction between public and private lands has no scientific basis, conflicts with science, and defies common sense.

Legally, the bear population is a natural resource that is held in trust by the State, not private land owners, just like fish. For example, a private land owner along a trout stream can limit public access to the stream, but they can not disregard State restrictions on trout. There can not be State fishery restrictions in streams flowing through public lands that are different from restrictions in streams flowing through private lands. The State management policy runs with the wildlife natural resource, not the ownership of the land.

Similarly, the rain that falls on private land can not be impounded and taken for private use without State approval, just like the groundwater under the land is not privately owned but held in trust and managed by the DEP.

At a fundamental level, Gov. Murphy’s distinction between public and private lands with respect to wildlife management contradicts all legal principles and traditions of wildlife management.

The Gov.’s Office is defending this blatantly political “compromise” on the basis that the Governor and the DEP Commissioner lack legal authority to ban the hunt statewide – claiming that the legislature must act. The Bergen Record reported:

Murphy couldn’t issue a complete ban on bear hunting because of a New Jersey Supreme Court decision in 2005 and other court decisions, which ruled that if the state Fish and Game Council recommends a bear hunt and properly adopts regulations implementing it, the governor does not have the ability to unilaterally cancel it, Murphy’s office said. In order for the hunt to be stopped, either the Legislature must act or the council must adopt new regulations that do not include provisions for the hunt. 

That legal position is reflected in the text of Murphy’s Ex. Order #34, which states:

WHEREAS, the authority over the black bear hunt rests with the Council and several court decisions have made it clear that neither the Governor nor the Commissioner have the authority to unilaterally alter or cancel the black bear hunt;

WHEREAS, while neither the Governor nor the Commissioner can unilaterally prevent a black bear hunt, the Commissioner has clear authority to direct and coordinate the use of all public lands under DEP’s jurisdiction, including instituting a ban on hunting on said lands

While the Gov. and DEP may not have the authority to “alter or cancel” the bear hunt, the statements are highly misleading.

In contrast to the Gov.’s claims, the DEP Commissioner clearly has the authority to block the hunt via the Commissioner’s powers pursuant to  N.J.S.A. 13:1B-28 which provides: (my emphasis):

In addition to its powers and duties otherwise hereinafter provided, the Fish and Game Council shall, subject to the approval of the commissioner, formulate comprehensive policies for the protection and propagation of fish, birds, and game animals and for the propagation and distribution of food fish and for the keeping up of the supply thereof in the waters of the State.

That specific power has been upheld by the NJ Supreme Court, in the case cited by the Governor.

The Supreme Court’s 2005 ruling was a comprehensive exposition on and resounding support of upholding the DEP Commissioner’s powers over the Fish and Game Council with respect to the bear hunt – the exact opposite of Gov. Murphy’s claims.

As NJ.Com reported:

Murphy’s office, in a statement accompanying his announcement Monday, offered an explanation.

The statement noted that the N.J. Fish and Game Council is separate from the governor’s office, is composed primarily by “sportsmen and farmers,” and has the sole authority to authorize a bear hunt.

“Pursuant to a New Jersey Supreme Court decision in 2005 and other related court decisions, if the council recommends a bear hunt and properly adopts regulations implementing a hunt, the governor does not have the ability to unilaterally cancel it,” read the statement.

“In order for the hunt to be stopped, either the Legislature must act or the council must adopt new regulations that do not include provisions for the hunt.”

The Murphy statement is highly misleading and outright false.

The Gov. ignores the powers of his DEP Commissioner.

DEP Commissioner can block the bear hunt by refusing to approve the “comprehensive policies” for black bear management recommended by the Fish and Game Council, which must be reviewed and approved by DEP and promulgated via regulation as the Comprehensive Black Bear Management Plan.

And, as the NJ Supreme Court’s 2005 decision clearly found, the Fish and Game Council clearly does not have “sole authority” to authorize a bear hunt.


In that case, the Supreme Court that ruled on the powers of the DEP Commissioner and the Fish and Game Council with respect to the bear hunt.

The decision went into great detail on the history of the formation of the DEP and the powers of the DEP Commissioner with respect to the Fish and Game Council.

The decision explicitly reversed a prior 2004 NJ Appellate Court decision that found that the DEP Commissioner lacked statutory authority to block the bear hunt.

Here is the procedural history the Supreme Court restated:

The complete facts and procedural history of this case are reported in U.S. Sportsmen’s Alliance Foundation v. New Jersey Department of Environmental Protection, 372 N.J.Super. 598, 860 A.2d 463 (App.Div.2004).   In a nutshell, in early 2004, the Fish and Game Council considered a proposal to hold a bear hunt similar to the hunt that had taken place in 2003.   The 2003 bear hunt was the first authorized in New Jersey since 1970.1  The Commissioner publicly supported the 2003 hunt;  it was not until 2004 that he opposed a hunt outright due to fiscal concerns, the decrease in bear-human interactions, and the lack of data supporting the Division of Fish and Wildlife’s (Division) projections regarding the bear population. Notwithstanding that opposition, the Fish and Game Council adopted the 2004-2005 Fish and Game Code that authorized the bear hunt.   The Commissioner subsequently directed the Division not to issue or process applications for bear hunting permits.   The U.S. Sportsmen’s Alliance Foundation, New Jersey State Federation of Sportsmen’s Clubs, Gerald McCusker, Anthony Cali, and Edward O’Sullivan filed a notice of appeal challenging the Commissioner’s directive.

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or  to otherwise interfere with Fish and Game Code regulations governing the hunt.

The DEP, the Commissioner, the Division, and the Director of the Division (collectively the Commissioner) petitioned for certification, which we granted.  U.S. Sportsmen’s Alliance Found. v. N.J. Dept. of Envtl. Prot., 182 N.J. 151, 862 A.2d 59 (2004).

(for context, here are DEP Commissioner Campbell’s initial objections to the hunt, expressed in a March 6, 2003 letter to the Fish and Game Council (see disclosure below). After reading that letter, I find it hard to understand how the Court found “The Commissioner publicly supported the 2003 hunt“. Maybe I’m confused about timing.)

Here is the Supreme Court’s ruling:

Within DEP divisions are agencies like the Fish and Game Council.   Although not identical due to amendments at various times, the leitmotif that runs through all of the relevant enabling legislation is the interconnection between the councils and the Commissioner and the recognition that while those entities possess authority in varying levels, their independence is constrained by their uniform subjugation to DEP authority.2  Specifically in  the instance before us, the Fish and Game Council’s ability to authorize a bear hunt is subject to the statutory condition precedent of the Commissioner’s earlier approval of the very comprehensive policies governing the propagation of black bears.

Our conclusion regarding the Commissioner’s authority is ineluctable not only because of the approval language but because the entire statutory scheme was intended to create a unified approach to conservation and environmental protection under the authority of the Commissioner. Although the Fish and Game Council may act without day-to-day veto by the Commissioner, its actions exist within a larger universe of comprehensive environmental policies.   If it does not act in accord with those policies, the Commissioner is empowered to intervene. …

The judgment of the Appellate Division is reversed.

Recall that the Appellate Division ruling the the Supreme Court reversed found:

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or  to otherwise interfere with Fish and Game Code regulations governing the hunt.

This Supreme Court ruling “reversed” that Appellate Division and that ruling very clearly contradicts the Governor’s claims.

What am I missing? Was there a subsequent Supreme Court case that clarified this decision and restricted the DEP Commissioner’s powers?

I found a 2010 Appellate Division opinion that upheld the hunt, but that case was NOT based on the powers of the DEP Commissioner, but instead was an arbitrary and capricious challenge to Fish and Game Council’s comprehensive management plan.

Readers and DEP experts that know this issue, please educate me. Send corrections to me at:  bill_wolfe@comcast.net

[Full disclosure: I was hired by and worked as a policy advisor to Commissioner Campbell from 2002-2005. Aside from involvement in drafting the Highlands Act that increased protections of  800,000 acres of black bear habitat, I had no role in bear management policy.]

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This Changes Nothing – Timing Is Nothing

September 12th, 2018 No comments

NJ Environmental Groups Miss The Boat

Meanwhile, as a massive hurricane barrels toward the east coast …

Electric Bus Campaign Could Have Been Designed By PSEG & Big Oil & Gas

[Technical Update Below – 9/13/18)

NJ Spotlight reports today that environmental groups have created a political campaign focused on retrofitting NJ Transit’s bus fleet, see:

This “campaign” comes at a time when the focus should be on the fact that NJ Gov. Murphy must deliver on his repeated campaign pledges to make it a top priority to rapidly and aggressively respond to the climate crisis and convert NJ’s fossil and nuke based electric infrastructure to 100% renewable energy (solar, wind, geothermal, etc) by 2050.

To meet these goals, Murphy has issued Executive Orders that directed:

1) the Board of Public Utilities (BPU) to exercise regulatory powers to create a financing mechanism for 3,500 MW of off shore wind  and to adopt an Energy Master Plan (EMP) to lay out a detailed path to 100% renewables. BPU is now holding public “Stakeholder” meetings to solicit public comments on necessary revisions to the Christie EMP.

2) the BPU and the Department of Environmental Protection (DEP) to renegotiate the prior agreement and rejoin the northeast States Regional Greenhouse Gas Initiative (RGGI). A draft RGGI regulation is expected to be proposed for public comment this fall.

Additionally, the Murphy administration is subject to legislation:

3) the voluntary greenhouse gas emission reduction goals of the 2007 Global Warming Response Act (80% below 2006 emissions by 2050);

4) the legal mandates of a 2004 law to develop zero emission (electric) cars and – implicitly – the necessary infrastructure to recharge them. There are no concrete plans in place to demonstrate compliance with either law; and

5) recently enacted legislation requires 21 percent of the energy sold in the state be from Class I renewable energy sources by 2020; 35 percent by 2025 and 50 percent by 2030, including 3,500 MW of offshore wind by 2030. Utilities are required to reduce electricity usage by 2 percent and natural gas by 0.75 percent, and install 600 MW of energy storage by 2021 and 2,000 MW by 2030.

(I highlighted energy sold in the state because millions of NJ ratepayer dollars are being shipped out of state to purchase so called “renewable energy credits” from energy generated in other states (e.g. Illinois wind and dirty Maryland garbage incinerators) and are doing nothing to promote NJ based clean energy, jobs or economic development. More to come on this “RPS” sham in a future post.]

Actual implementation of these programs will cost billions of dollars and they will be extremely complex to design and implement (even without political attack by corporate power and special interests (e.g. the PSEG union got a no layoff deal in the nuke bailout).

The aggressive timetables, complexity and powerful corporate and political resistance that will challenge the BPU – in light of BPU’s historical track record in failing to meet legal deadlines – do not inspire confidence that the timetables or goals will be met.

Additionally, there are external legal and technical constraints imposed by NJ’s 1999 Electric Deregulation and Energy Competition Act (“EDECA”), the PJM regional grid operator, the other RGGI states, NJ’s RGGI statute, and the Federal Energy Regulatory Commission.

NJ laws also erect restrictions on municipal and cooperative owned power systems and limits the size renewable energy systems and economic incentives known as “net metering”:

System size of renewable energy facility is limited to that needed to meet annual on-site electric demand. A.B. 3723 enacted in May 2018  authorizes Board of Public Utilities (BPU) to limit net metering to 5.1% of the total annual kWh sold in the State by each electric power supplier during prior one year period. The legislation instead of providing a firm aggregate limit on net metering, it authorizes the BPU to cease offering net metering if this capacity is reached.  BPU may continue to allow net metering even if this threshold is reached.

The limit on size to annual demand blocks expansion of renewables, restricts competition and protects the corporate utilities – as does net metering limit of just 5.1%.

Finally, there are major loopholes in DEP regulations with respect to climate change (both emissions reductions and adaptation) and DEP’s GWRA implementation recommendations have been completely ignored, see:

So, it is almost a certainty that  none of this will be accomplished – absent huge public demands that are organized by informed analysis and mobilized in support of aggressive government policy response.

So, how has NJ’s environmental and climate community responded to these challenges?

NJ Spotlight reports today that they have created a political campaign focused on retrofitting NJ Transit’s bus fleet, see:

Of course, the NJ energy sector and corporate NJ are breathing sighs of relief as environmentalists divert public attention from anything that could change the corporate status quo or cost them a thin dime.

Electric bus fleet replacement cost would be at least $660 million, and all of it from PUBLIC money, not one corporate dollar. *** There were no estimates provided of actual GHG emissions reductions associated with this public expenditure. (*** See Technical Update below)

(To illustrate the cowardly Neoliberal politics that are operating here, consider:  instead of a small bore public transit bus focus, why not a campaign to mandate that Amazon, Fed Ex, and UPS electrify their fleets and install solar on millions of square feet of warehouse rooftops?)

For context, that $660 million is about 12 years of all the new RGGI funds and almost 3 years of all annual Societal Benefit Charge (SBS) funds.

This latest “green” “campaign” ignores all of the above challenges and retains the typical silo single issue focus, incoherent, and “safe” politics that Naomi Klein criticized the environmental community for in her recent book “This Changes Everything: Capitalism Vs. The Climate”: (review)

The immediate threat to the earth “changes everything” in the sense that just adding “the environment” to our list of concerns is not good enough.

The sheer scale of the problem necessitates a politics that can take on capitalism. We must do away with any notions, Klein asserts, that the environmental crisis can be contained and eventually rolled back through policy tinkering (though addressing symptoms is necessary); technical fixes (though sensible technological advances should be vigorously pursued); or market-based solutions (no qualification necessary — it’s silly to expect the market to solve problems it was instrumental in creating). Something far more comprehensive is required.

To emphasize this, however, is not just to expose the painfully inadequate solutions of the Right, but also to ask the hard questions of the environmental movement. As important as the movement has been to placing the issue on the agenda and bringing young people in particular into the struggle, its organizational forms simply do not match what we are up against. After decades of engagement, the environmental movement remains relatively marginal, capable of slowing down this or that trend but not of reversing and correcting capitalism’s reckless trajectory.

Klein is especially critical of those sections of the movement that jumped on the “green capitalism” bandwagon in the 1970s.


Meanwhile, as a massive hurricane barrels toward the east coast, out west, California Gov. Jerry Brown just signed a law imposing a phase out of fossil fuels by 2045 (yes, I understand that the phase out is not mandatory and has no enforcement teeth. But NJ groups are not even asking for a voluntary aspirational phase out goal.)

Similarly, NJ grassroots climate activists are demanding that Murphy’s BPU Energy Master Plan phase out fossil fuels and impose a moratorium on new fossil infrastructure.

Others – including myself – advocate that NJ activists embrace the Trade Unions For Energy Democracy. (be sure to read their Working Papers).

Why no environmental group campaign on any of these aggressive policies?

Others, like the “green capitalism” groups Klein criticizes,  are calling for a “carbon tax” – e.g. the State of Washington (where I am writing this post from) has a fall ballot initiative to impose a $15 per ton carbon tax.

By comparison, RGGI credits are selling for about $2 per ton (correction – most recent auction was $4.50)  and NJ’s RGGI law has an “exit ramp” that would trigger legislative review if the price of a RGGI credit exceeded $7 per ton. RGGI will not make a dent in reducing NJ’s current GHG emissions.

By comparison, economists – and even the EPA – estimate that the real “Social Costs of Carbon are over $100 per ton (depending on assumptions, including interest rates). Regardless, Trump repealed these EPA SCC estimates and barred federal agencies from using them.

At least 3 major new fossil powered gas power plants – almost 2,000 MW – and major fossil pipelines currently are under review by the Murphy DEP and BPU.

NJ’s electric grid requires massive new multi-billion dollar investments to be able to handle renewable energy.

NJ’s rechargeable vehicle infrastructure is woefully inadequate and NJ’s pubic transportation infrastructure is crumbling.

There is no attention on housing and the greenhouse gas emissions of other sectors.

Meanwhile, as a climate warming driven massive hurricane barrels toward the east coast, NJ, a highly vulnerable coastal state wiped out by Superstorm Sandy, still has no climate adaptation plan. That storm represents another opportunity to build public awareness and pressure Gov.Murphy to respond, but instead the environmental groups blow the moment and launch a electric bus campaign. Timing is nothing, eh?

None of these issues are getting adequate governmental, media or environmental group attention and resources.

What the fuck are they all doing with an electric bus campaign?

[End Note: I understand that environmentalists also justify this campaign on environmental justice and urban air quality grounds. Don’t be fooled. In a forthcoming post, I will expose the sham of Gov. Murphy’s Executive Order 23 on environmental justice and explain how it limits State agencies – especially DEP – to toothless “guidance”, not regulation.]

[Technical Update  9/13/18 – I tracked down the Environment NJ national Report supporting this campaign. According to that report:

  • Replacing all of the diesel-powered transit buses with electric buses in the United States could save more than 2 million tons of greenhouse gas emissions each year.

For context, according to the most recent 2018 US EPA Greenhouse Gas Emissions Inventory:

In 2016, total gross U.S. greenhouse gas emissions were 6,511.3 million metric tons (MMT) of CO2 Eq.11

Do the math – at the national level, 100% fleet replacement of electric buses would reduce national GHG emissions by just 0.03% (and cost unknown billions of dollars): (2 MT/6,511.3 MT) x 100 = 0.030%

According to the most recent NJ DEP GHG emissions inventory, NJ emits about 110 million tons (MT) of GHG per year (2015). Although the transportation sector is the largest emissions sector (almost 50 MT), the driver for those emissions is increases in vehicle miles travelled, which would dwarf any reductions associated with electric bus retrofit:

As illustrated in Figure 2, the category with greatest contribution to GHG emissions in New Jersey since 1990 has been in the on-road transportation sector. This is most likely due to an increase in vehicle miles traveled in NJ despite a minor increase in the fuel efficiency of the overall U.S. motor vehicle fleet.

In NJ,According to the NJ Spotlight article, there are 2,200 NJ Transit buses. According to national bus registration data, NJ has over 25,000 buses. So the campaign targets just 8% of buses. Worse, NJ represents less than 5% of national buses. So, the total emissions reductions of electric buses as a percentage of national emissions are almost invisible: (0.03%/20)= 0.0015%.

Worse – and I won’t go into details here that would further embarrass and discredit my former colleagues – there is evidence that suggests that the “campaign” is motivated by organizational economic self interest and promotion of business interests that contribute financially to environmental groups. Readers interested in the basis for these claims should just Google. You’ll find stuff like this:

The Report was released AT THE corporate manufacturing facility in California. The press release named the company. It was part of the political buildup for the Gov. Brown Climate Summit in San Francisco. Here’s the advertisement – corporate promotion – press release:

“Burlingame, CA – Jersey Renews partners, including Environment New Jersey, GreenFaith and Jobs Move America, joined Environment America and Proterra, a cutting-edge electric bus manufacturer in Silicon Valley, in hosting delegations from ten states around the nation for a tour of Proterra’s bus factory, and a discussion on the state of the industry and hastening the transition to zero carbon transportation.

Makes Sierra Club small business boutique promotion in Boston look like chump change.

This s really bad.

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Is Murphy DEP Commissioner Catherine McCabe On The Way Out The Door?

September 9th, 2018 No comments

Friday Night Massacre At DEP? – “there is a lot of weird here”

Gov.s’ Office Installs Interim Commissioner Over DEP Deputy Deb Mans

Gov. Murphy Further Politicized a DEP Already Deeply In Disarray

[Update below]

According to a press report, Gov. Murphy has made a highly unusual Saturday announcement – via twitter – that DEP Commissioner McCabe is traveling out of State for the month of September and will be replaced by a Gov. Office staffer, not DEP Deputy Commissioner Debbie Mans. Follow.

From the beginning, we have been highly critical of NJ Gov. Murphy’s choice for DEP Commissioner, Catherine McCabe, and written many posts on her ineffective leadership of DEP, particularly on addressing climate change (most recently, see:

McCabe – who was not confirmed by the Senate until late June and has allowed Senate President Sweeney and Assemblyman McKeon to install their former staffers and political operatives in DEP policy positions – has charted a course of “continuity with many controversial Christie DEP policies.

She has blind sided and embarrassed the Governor in the press, lacked any media message or policy agenda, and been an ineffective leader of DEP and proven incapable of reforming the status quo (see:

McCabe has been humiliated and cut out of the policy loop on climate change, allowing DEP leadership to be usurped by BPU and the Energy Master Plan. Similarly, McCabe was cut out of Natural Resource Damage policy by the Attorney General. Former political operatives in the Legislature that were installed as Chief of Staff and Director of Government Relations appear to be working behind her back with Democrats in the legislature, again, undermining DEP leadership and credibility by politicizing decisions.

Similarly, we have pointed out that McCabe’s selection of  so called “environmental leader” Debbie Mans as Deputy Commissioner was a purely symbolic gesture and cynical political appointment. Mans is no leader and lacks qualifications for the job, see:

We’ve predicted that McCabe would suffer a very short tenure, much like Gov. Florio’s initial pick for DEP Commissioner, Judy Yaskin, who served for several months before being replaced by Scott Weiner. We wrote:

While Acting Commissioner McCabe seems to be hiding under her desk in Trenton – is she trying to avoid Judy Yaskin’s fate? – Gov. Murphy has not rescinded Gov. Christie’s anti-regulatory and privatization Executive Orders (#1-#4; #17), but instead has shown a disturbing continuity with some of the worst Christie environmental policies, including: (read entire post for list)

But, while McCabe is floundering and failing to lead, at least Judy Yaskin was forced out because she took strong pro-environmental positions, as we noted:

I could be wrong – perhaps McCabe has done her homework and just doesn’t want to step out of the corporate Democrat line and become another deposed DEP Commissioner like her only female predecessor, Judy Yaskin, see: this old NJ Spotlight story:

“In the case of the Salem nuclear power plants, the controversy stretches back nearly three decades to the days of former Gov. Jim Florio’s administration. Then-Department of Environmental Protection Commissioner Judith Yaskin ordered cooling towers to installed at Salem — at a cost at that time estimated to be $2 billion –– citing a study that found the plant killed more fish each year than commercial fishermen harvested from Delaware Bay. …

Scott Weiner, who succeeded Yaskin as DEP commissioner, reversed the Salem cooling-tower decision. Instead, PSEG agreed to undertake a massive restoration program of more than 20,000 acres of tidal wetlands along the shores of the Delaware Bay. After he left state government, Weiner worked briefly as a consultant to PSEG.

So, we were not surprised that Bergen Record environmental reporter Scott Fallon, who seems to have broken a very interesting story that suggests McCabe’s imminent demise, tweeted this:

Saturday morning press release from @GovMurphy: DEP Commish will be traveling out of state “for the month of September”. No other details given. Kathleen Frangione from Govs (sic) office will be acting commish, (sic) not DEP no. 2 Debbie Mans.

There is a lot of weird here.

(I can’t provide the original tweet because Fallon has blocked me for criticizing his reporting).

Curiously, I went to @GovMurphy twitter feed and could not find the Saturday morning tweet Fallon refers to, so I assume that its been taken down. That only thickens the plot.

So I agree with Fallon that “there is a lot of weird here”.

My sense is that McCabe is “traveling” and will make a graceful exit by resigning when she returns for “family” or “personal” reasons.

The installation of Chief Policy Advisor Kathleen Frangione from the Gov.’s Office as interim DEP Commissioner instead of Deputy Commissioner Debbie Mans is not only a vote of no confidence in an a humiliating blow to Mans, it also validates what we’ve long said: that Mans was not qualified, not a leader, and always just a symbolic and totally cynical political appointment.

And it further politicized a DEP that is already deeply in disarray – although Frangione is said to be a climate policy expert. (but as a DC beltway lobbyist and Congressional staffer, not an expert or advocate)

[OMG, I just watched that Princeton talk. Frangione spoke more like a press agent than a policy expert. Jeanne Fox hovered over her to make sure she said nothing about policy decisions or political controversies. Frangione’s presentation was absent substantive content and data, it misrepresented current law (e.g. re: authorized uses of RGGI funds, the non-binding effect of Executive Orders, and with mis-statements about “DEP regulations”, etc) and loaded with slogans. If that’s what passes as a policy expert from Harvard and Yale, we’re doomed.]

We’ll keep you posted as we learn more.

In the meantime, DEP folks or anyone with valid information about all this can shoot me an email at:  bill_wolfe@comcast.net

[Update: A knowledgeable reader sent me the following note, suggesting that I exaggerate:

She has vacation house in Ocean City near some friends. 

He said going to Australia for month to visit for birth of granddaughter

So, if McCabe is going to Australia for a month, that could shine a light on Murphy’s lack of paid family leave policy.

It must be nice to just take off for a month. But can all NJ workers take a paid month for the birth of a child? Can they afford to do that? Is Murphy helping?

Similarly, is McCabe being paid during her travels? Does taking a month of from a leadership position damage her management credibility and commitment to DEP?

Is even raising these kinds of questions somehow taboo in the new #metoo world of women’s issues?

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Judge Kavanaugh Supreme Court Senate Confirmation Hearing Ends With A Whimper

September 7th, 2018 No comments

Democrats disappoint

Republican ends hearing by defending Nixon

Kavanaugh is the culmination of a 40+ year right wing project kicked off by the Powell Memo

Judge Kavanaugh’s US Supreme Court Senate confirmation hearing just ended.

Just when you thought the Republicans could not go lower, in his final move before adjourning the Kavanaugh confirmation hearing, Senator Kennedy [R-La.], attacked John Dean (of Watergate fame), essentially called him a “rat”, and said Dean – not NIXON – hurt the country.

Before the hearings began I laid out my concerns, see: Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court.

[Update – 9/8/18 – Nader agrees: Ralph Nader: Kavanaugh Is a Corporation Masquerading as a Judge]

Some of them were addressed during the hearings by Senators Whitehouse, Blumenthal, Coons, and Durbin. Whitehouse did by far the best job. And Cory Booker is a lightweight and self promoter.

The testimony of final panelist, Georgetown Law School Professor Lisa Heinzerling, echoed my concerns and hit the nail on the head, including the delegation doctrine issue:

The opinions that Judge Kavanaugh has written in his twelve years as a judge make clear that, as a justice, he would unsettle the independence, legal authority, and protective missions of administrative agencies. He would do so by discarding legal precedents that have long allowed Congress to structure our government and to address the pressing problems of the day without undue interference from unelected judges. He would work in the name of a cramped and skewed “liberty” that, in his hands, amounts to a freedom to harm other people with minimal government constraint.

These legal issues can sound quite abstract; they might even seem unconnected to people’s daily lives. But the Supreme Court’s approach to these questions has a profound effect on our everyday lives. One can name any problem that matters – environmental destruction, workplace hazards, sexual harassment, inadequate health care, financial fraud, food safety, and on down the line – and one will find that the day-to-day work of addressing that problem is done by an administrative agency. In each case, Congress will have made a judgment about the degree of independence the agency needs to do the job. Congress will also have given the agency instructions, some clear and some unclear, about how the agency should go about its work. Subjecting these agencies to more political meddling from the president, as Judge Kavanaugh thinks we should, would make these agencies more likely to work in the service of the privileged few rather than in the service of the broad public. Stripping them of legal authority to address the major issues we face, such as climate change and governance of the Internet, would leave us unprotected against new threats and new problems. The legal issues may seem abstract, but the tangible consequences are profound….

Judge Kavanaugh would distinguish “major” rules from “ordinary” rules by considering “the amount of money involved for regulated and affected parties, the overall effect on the economy, the number of people affected, and the degree of congressional and public attention to the issue.”19 Where these factors are present, Judge Kavanaugh would hold that an agency may not take a regulatory action at all without a clear legislative go-ahead. Judge Kavanaugh would, in other words, disable agency action in precisely the circumstances where it is most important. He has already announced that rules governing the Internet and regulating greenhouse gases are off-limits under his theory.20 Given Judge Kavanaugh’s criteria for identifying “major” rules, it is hard to imagine any significant regulatory proceeding that could not be subject to his new, power-stripping interpretive theory. ..

Consider Judge Kavanaugh’s opinion in Coalition for Responsible Regulation v. EPA.24 Judge Kavanaugh dissented from the denial of rehearing en banc in this case, which challenged an Environmental Protection Agency (EPA) rule requiring permitting for greenhouse gas emissions from stationary sources. Uncritically citing the Chamber of Commerce’s claim that EPA’s rule created “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency,” Judge Kavanaugh argued that the “major consequences” engendered by the rule counseled against reading the Clean Air Act to require permitting for greenhouse gas emissions.

( a variant of the concept of  the need for a “clear legislative go-ahead” was attempted by a bill that was heard but ultimately rejected by the NJ Legislature. That bill would have required explicit legislative authorization before a State agency could adopt guidance documents necessary to regulate. I wrote about that here).

By “liberty”, Kavanaugh really means “property” and corporate “profits” over people.

Here’s how professor Heinzerling sees that:

The touchstone of Judge Kavanaugh’s work as a judge is the separation of powers, and the motivating force behind his focus on the separation of powers is the protection of liberty. Unfortunately, however, the “liberty” Judge Kavanaugh embraces is badly skewed, and terribly small: it is the liberty of powerful groups to do their business unhindered by government, rather than the liberty that comes from meaningful government protections against harmful human behavior. In the name of “liberty,” Judge Kavanaugh has rejected rules addressing toxic air pollution, climate change, workplace safety, financial fraud, and more – without acknowledging that in such cases, “liberty” sits on both sides of the legal question. There is, on one side, the liberty of regulated groups to go about their business unimpeded by federal law. There is, on the other, the liberty of the rest of us to go about our lives – at home, at school, at work, and in our communities – with a reasonable assurance that the government has our back in protecting us against coming to harm at other people’s hands.

And here’s how professor Heinzerling raises concerns about Kavanaugh’s radical views on the delegation doctrine:

Congress often delegates authority to agencies to address broad problems whose full dimensions and manifestations are not immediately clear. Congress does so in the expectation that agencies will study and monitor the problems and take regulatory action as necessary to address them. Judge Kavanaugh, however, would require linguistic precision from Congress if it wants to authorize an agency to take on a specific new problem. He looked, for example, for such precise language in considering whether EPA could require permits for greenhouse gases and whether OSHA could fine SeaWorld for failing to protect trainers of killer whales against avoidable risks. In doing so, he has simply failed to listen to Congress’s instructions to these agencies to continue to investigate and address new problems. Congress has spoken, but Judge Kavanaugh hears only crickets.

Over the last 4 days, I was able to watch about half (over 15 hours) of those hearings, live Tweeted, and listened to NPR coverage and read some NY Times coverage. The Times ignored Senator Whitehouse’s withering statement – see below – here’s one of the few good articles – but far too little, far too late: Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action

I was pleased by Senator Whitehouse’s statements and line of questions that focused on corporate power, right wing foundations, Republican donors, and a documented record of biased Supreme Court decisions favoring corporate interests (see: WHITEHOUSE REVEALS KAVANAUGH’S PRO-CORPORATE, RIGHT-WING RECORD IN SCOTUS HEARING OPENER:

Lots of big Republican influencers are polluters. They like to pollute for free.

So of course the Roberts Five delivers decisions that let corporate polluters pollute.  To pick a few:  Rapanos, weakening wetland protections, 5-4; National Association of Home Builders, weakening protections for endangered species, 5-4; Michigan v. EPA, helping air polluters, 5-4;  and, in the face of emerging climate havoc, there’s the procedurally aberrant 5-4 partisan decision to stop the EPA Clean Power Plan.

But I come away deeply disappointed, and not just because Kavanaugh very likely will be confirmed.

I was disappointed by the democrats, the media, and the liberal/progressive community that opposed his nomination.

The Democrats disappointed me by:

1) lack of effective questioning of Kavanaugh’s actual record, including his written legal opinions and the policies he was very likely involved in during his time in the Bush White House;

2) by the lack of focus on substantive issues and connection of these issues to the lives of people, e.g. labor, environment, consumer protection, health and safety, etc. Instead, the Dems placed heavy strategic focus on process issues and on sterile narrow framing of issues like a lack of documents or adequate vetting;

3) for the most part, their poor choice of substantive issues to consider;

4) by ignoring or superficially addressing absolutely critical issues, like climate change, corporate power; economic regulation, the role of government, threats to voting rights, and at best, gross insensitivity and at worse outright attacks on and threats to democratic institutions, values and norms;

5) by their strategic disarray and undisciplined diversions;

6) by the way the pulled punches and failed to call Kavanugh a liar for false and misleading prior testimony;

7) by the way they ducked Kavanaugh’s radical right wing views on “religious liberty” and his total disregard for the establishment clause and the Jeffersonian “Wall” between church and state;

8) by the way they sat on sham “confidential” documents and when they finally did leak the, by their failure to talk about the implications of the contents of those documents. For example, they didn’t even go as far as the NY Times news coverage of what the leaked documents said (see above); and

9) by their failure to make the affirmative case is support of government and to defend government from the radical right wing attack that Kavanaugh’s nomination represents.

Finally, substantively, although it is taboo to say it in these #metoo times, the Democrats placed far too much emphasis on abortion and Roe v. Wade, to the detriment of other equally or even more important issues. Even that emphasis, however, downplayed discussion of the important individual privacy interests that the Roe decision protects and how those privacy protections are threatened by Kavanaugh’s right wing judicial philosophy.

The press (and I only followed NPR, which was atrocious coverage, and the NY Times) failed to write any of this stories or explain to the American public what was at stake and the nasty games the Republicans were playing.

Aside from the protests, I didn’t get a sense that the advocacy groups had any voice or influence at all.

There were times during the hearing – I’m thinking of Kavanaugh’s revealing discussion of the legal strategy of Thurgood Marshall that lead to the historic victory in the Supreme Court’s landmark Brown v. Board of Education decision – where Kavanaugh did all but openly admit his own strategy to radically reverse many Supreme Court precedents. He even said dissents are written for future generations (as a foundation for reversing precedents). His own radical dissents do just that.

Kavanaugh discussed Thurgood Marshall’s “litigation strategy”, e.g. to bring cases and build up a body of law that was inconsistent with Plessy “separate but equal” in order to pave way for reversal under Brown v. Board.

That sounds an awful lot like what the right wing is doing now on many issues.

That’s way beyond a right wing Dog Whistle.

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Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court

September 3rd, 2018 No comments

In the early 20th century, the Supreme Court systematically gutted regulations to favor business and attack organized labor. Those dark days have returned.  ~~~ “A New Lochner Era” (6/29/18)

“The Fourteenth Amendment does not enact Mr. Herbert Spencer‘s Social Statics” ~~~ Justice Oliver Wendell Holmes dissent in Lochner

[Update – 9/8/18 – Nader agrees: Ralph Nader: Kavanaugh Is a Corporation Masquerading as a Judge – end update]

During the US Senate confirmation of Judge Gorsuch, I wrote:

I’ve previously written about how President Trump’s Supreme Court nominee Neil Gorsuch’s views on administrative law would threaten foundational principles of the entire edifice of what has been attacked by Trump strategist Steven Bannon as the post New Deal “administrative state”. …

There is a real possibility that a Gorsuch influenced Supreme Court could severely dismantle the New Deal and all environmental protections via placing restrictions  on administrative regulatory agencies and making it easier for corporate interests to challenge and dismantle regulatory protections.

Make no mistake – Gorsuch’s views are radical and a serious threat to modern government.

If adopted by a conservative Supreme Court – they threaten the foundations of the New Deal and all federal environmental and and public health protections.

I had written:

Reflecting that Powell strategy and anti-regulatory corporate ideology, Gorsuch has signaled a fundamental attack on federal regulatory powers: (see Judge Gorsuch’s concurrence at page 15)….

In that same opinion, Judge Gorsuch not only signals an attack on federal regulatory power. His analysis would virtually repeal the New Deal Administrative state and harken back to the 19th century “non-delegation doctrine” the Supreme Court once invoked to block New Deal reforms.

And, in the first chance he had, Gorsuch did just that, (by invoking 19th century “freedom of contract”, not the “non-delegation” doctrine) (see: A New Lochner Era):

Janus is the culmination of several recent 5–4 decisions in which the court’s conservatives laid the groundwork for a fatal blow to public sector unions. But its true predecessor is Lochner v. New York, the notorious 1905 decision that turbocharged the court’s pro-business interventions into health, safety, and economic regulation. This term, Kennedy helped the court revive Lochner in Janus and two other sweeping 5–4 decisions that undermined labor rights and women’s health. His successor is certain to accelerate this trend, all but ensuring an impending judicial crisis. …

… in his Epic [Janus] opinion, Justice Neil Gorsuch ruled that the NLRA did not safeguard employees’ ability to sue collectively, claiming baselessly that class-action lawsuits don’t count as “concerted activities.” In the process, he gutted the NLRA, calling Section 7—which was meant to be American labor’s Magna Carta—a mere “mousehole,” undermining future plaintiffs’ ability to resolve workplace conflicts collectively. There is no legal justification for neutering the NLRA. Gorsuch simply imposed his own anti-labor ideology onto the law, shredding precedent and the plain meaning of the statutes to reach his desired pro-business result.

The legal attack applies not only to labor laws –  “His [Judge Kavanaugh’s] opinion had echoes of 19th-century state court rulings that factory workers assumed the risk of injuries from machinery that cut off their hands.” – but virtually all federal public health, safety, economic and environmental regulation.

(read the right wing Federalist Society radical legal attack on the New Deals “administrative state” seeking to invoke the 19th century’s “non-delegation doctrine”.)

The stakes are huge and made abundantly clear in the Senate’s confirmation of Trump nominated Judge Kavaugh. (A New Lochner Era):

In her Janus dissent, Justice Elena Kagan issued a grave warning: “Almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.” This term, thanks to Gorsuch’s fifth vote, the Supreme Court descended into radical partisanship that jeopardizes its institutional legitimacy. Kennedy’s replacement, inevitably a Gorsuch clone, will shore up a five-vote bloc to further impair labor rights, health care, and access to justice under capricious and pretextual constitutional doctrines. It will be Donald Trump’s Supreme Court. And the president’s judicial avatars will usher in a new era of Lochner-ism that subverts American democracy for decades.

The predictions in that Lochner article were validated buy Trump’s nomination of Kavanaugh (see “Liberty For Whom?):

… in 2017, Kavanaugh struck his most radical stance yet: He proclaimed that net neutrality violates the First Amendment. In a lone dissent, Kavanaugh compared internet service providers to “publishers, newspapers, and pamphleteers” who apply “editorial discretion” to their content. Internet service providers, Kavanaugh wrote, have a free-speech right to throttle the websites of their competitors, just as newspaper editors have a right to select their preferred op-eds. The government, he concluded, has no power “to regulate the content choices of private editors” (like Comcast), even when those “editors” are using their monopoly power to crush competition in the interest of profit, not expression.

But the coup de grâce of Kavanaugh’s Lochner streak came when the judge announced that the structure of the Consumer Financial Protection Bureau is unconstitutional. He first attacked the CFPB in October 2016, writing for the majority on a three-judge panel; his onslaught continued this past January, when the full D.C. Circuit reversed his panel decision, upholding the CFPBand prompting Kavanaugh to write a bitter dissent. The CFPB, an executive agency that regulates the financial services industry (to great success), is led by a single commissioner who can only be removed by the president for cause. Noting Congress’ desire to shield this commissioner from “political winds and presidential will” in light of the 2008 recession, the full D.C. Circuit upheld the agency’s independence.

Where the hell are the Democrats?

Where is the media? Amnesia? Cowardice? Corporate control?

The NPR setup story this morning almost made me puke. And this was broadcast AFTER they had what should have been an expose: an interview of a colleague of Kavanaugh’s who openly said the confirmation must be rammed through “prior to the mid-terms”, a comment that revealed the Republican’s political agenda.

They seem to have forgotten this NY Times editorial warning:

Corporate interests haven’t had it so good at the Supreme Court in a long time.

Under Chief Justice John Roberts Jr. the court has given big business a leg up on workers, unions, consumers and the environment — and will do so even more aggressively if the Senate confirms Brett Kavanaugh, President Trump’s choice to replace Justice Anthony Kennedy. …

The court’s pro-corporate decisions are widening the chasm in power and wealth between the country’s elite and everybody else. And the Roberts court is also increasingly preventing lawmakers, regulators and the public from doing anything about that growing problem.

“The Resistance” is diverted and bogged down in what Chris Hedges calls “boutique” activism – AKA identity politics – they displace fundamental economic, role of government, and regulatory issues.

It is truly sickening when the NY Times editorial Board is to the left of “The Resistance”.

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