We Don’t Find Constitutional Government “Frivolous”

January 27th, 2015 No comments

Reply to Press of Atlantic City Editorial

In the most recent episode in a pattern of cheerleading in support of the South Jersey Gas Co.’s Pinelands pipeline, the Press of Atlantic City wrote a dismissive editorial yesterday on the Fiocchi ethics case, calling the complaint “frivolous at best, if not downright disingenuous.” see:

I requested opportunity to respond and the editors agreed to 350 words – here is my full reply, let’s see how they edit it down to 350 words.

We followed a similar line of argument as Chairman Lohbauer in his statement opposing the MOA.

Dear editor:

Re: Fiocchi ethics complain/Frivolous at best (editorial,1/26/15)

The Press of Atlantic City editorial board consistently has supported the South Jersey Gas Co.’s (SJG) proposed pipeline through the Pinelands National Reserve, despite the fact that – as even SJG admits – Pinelands Commission staff found: “ the proposed pipeline development was not consistent with the Forest Area land use standards”. 

That pro-pipeline position is your editorial prerogative.

But editorials should be based on factually accurate information and a clear understandings of the issues at play.

Which takes us to yesterday’s editorial, which described an ethics complaint filed against Assemblyman Fiocchi for his political intervention in the Pinelands Commission’s SJG pipeline review process.

The editorial dismissed that complaint as “frivolous at best, if not downright disingenuous” and” ”pretty much nonsense”. 

The editorial took particularly strong exception to my claim that Assemblyman Fiocchi had effectively urged the Pinelands Commission to violate the law, concluding:

“There was and is a legal mechanism for the Pinelands Commission to approve this project.”

As one of the complainants in that ethics matter, I take personal offense and must strongly disagree with this characterization and point out its errors of fact and law.

First off, the editorial completely misunderstands the basis for my claim regarding “violation of law”, which was Fiocchi’s demand that the Pinelands Commission consider jobs, economic development, and energy reliability as the basis to approve the pipeline.

By law, the Pinelands must base decisions exclusively on the Pinelands Protection Act and the standards in the Comprehensive Management Plan (CMP).

The CMP does not authorize the Commission to approve a project on the basis of Fiocchi’s recommendations, thus he literally was urging the Commission to violate the law and their duty to enforce and implement the CMP.

Yes, as the editorial notes, there are two legal mechanisms for the Pinelands Commission to approve the pipeline under the Pinelands’ Comprehensive Management Plan (CMP): 1) a Memorandum of Agreement (MOA); or 2) a Waiver of strict compliance.

However, neither of those mechanisms allow the Commission to base a decision on jobs or economic development or energy resilience as Fiocchi demanded.

Second, I note that the Chairman of the Joint Legislative Committee on Ethical Standards, a lawyer and former NJ Supreme Court Justice, said this, quoted in a Nov. 18, 2014 Press of Atlantic City story:

“Mr. Wolfe raised some very interesting points in his presentation to the committee this morning.”  

On the basis of my Nov. 18 testimony, the Ethics Committee rejected their own legal Counsel’s recommendation to dismiss the complaint for lack of probable cause.

Accordingly, my claims were obviously not “frivolous” and “disingenuous” and it is a lie to characterize them as such in an editorial.

Rather, just the opposite: they raised serious legal and ethical issues regarding the separation of powers between legislative and executive branch independent agencies like the Pinelands Commission.

The Commission is legally obligated to make decisions exclusively based on the Pinelands Protection Act and the standards adopted in the Comprehensive Management Plan, and must do so in an open, objective, and impartial manner free from undue political or economic influence and abuse of power and authority. 

Under NJ ethics laws, Assemblyman Fiochi is prohibited from intervening in a “contested case”. The pipeline is now before the Appellate Division, as a result of a SJG lawsuit. The ethics complaint raised a valid legal question about whether the pipeline remains a “contested case” before the Pinelands Commission

A Legislator also has a duty to avoid behavior that could create the public appearance that the public trust was being violated and he must avoid behavior that could undermine the public’s trust and confidence in the Commission.

Political campaigns to bring political pressure to bear on an independent agency - that are initiated, organized and led by Legislators – that serve the economic interests of private corporations like SJG and Rockland Capital (owner of BL England) undermine the public’s trust in government and create the appearance of the use of undue political interference in what are supposed to be independent fact and law based deliberations of the Pinelands Commission.

And, in closing, we don’t find our Constitutional principles “frivolous”.

It’s a tired cliche we learned in 7th grade civics class that our constitutional system of government establishes 3 independent branches – Legislative, Judicial, and Executive (see Federalist Papers #47) – with discrete powers and roles, governed by the doctrines of “checks and balances” and “separation of powers” and “rule of law”.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny

The Legislature makes the laws; the Executive implements the laws; and the Judiciary interprets the laws.

Decisions are based on laws, not men. Rule of law limits abuse of power and enables transparent and democratic government. 

Assemblyman Fiocchi’s political campaign and attack on the Pinelands Commission trampled on those foundational notions of our Constitutional government.

It is shocking that a newspaper editorial board will dismiss such concerns as “frivolous”.

Respectfully,
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Gov. Christie’s Pinelands Packing Plan Suffers Another Embarrassing Setback

January 26th, 2015 No comments

Judiciary Committee Lacked Votes to Approve

Gov. Christie’s nominee to the serve on the Pinelands Commission, Robert Barr, was posted for vote of the Senate Judiciary Committee today.

But after a furious round of lobbying by a unified environmental community opposing Barr’s candidacy, at the last minute, just as the hearing began, Judiciary Committee Chairman Scutari announced that Barr would not be considered today.

A member of the Committee told me that they lacked the votes to approve Mr. Barr.

Democrats on the committee are defending the integrity of the Pinelands Commission and are not willing to bow to Gov. Christie and Senate leadership demands.

[Update: 1/27/15 – I just got a comment from a reader about the preceding sentence, correcting my oversight and failure to mention that Republicans helped out as well. I forgot about the strong opposition by Senator Bateman (R-Somerset). So, my apologies to Sen. Bateman for that oversight and my thanks to other Republicans helping out behind the scenes.  ~~~ end update]

This is another huge embarrassment for Gov. Christie’s attempt to oust those who had the integrity and independence to defy him and vote to reject the Gov.’s Pinelands Pipeline by the South Jersey Gas. Co. to re-power the BL England power plant.

Christie has used incredible strong armed tactics – for example, he vindictively killed a Commission approved small raise staff.

Worse, in retaliation, Christie is replacing those independent Commissioners with loyal yes men.

The County’s are doing the same thing with their appointment powers.

South Jersey Gas Co. has close ties to a former member of the Christie Governor’s Office that raise conflict of interest issues, and BL England is represented by the law firm of Wolff  & Samson, another notorious Christie ally at the heart of the Bridgegate scandal.

The last time Mr. Barr was before the Committee in October, along with another Christie nominee, their testimony was so weak and the questioning from Committee members so harsh that, in a highly unusual move, the Chairman abruptly adjourned the hearing and held off public testimony and voting on what certainly would have been a humiliating defeat.

The fact that the the Gov. could repeat that debacle today is astonishing.

I signed up to testify and would have opposed Mr. Barr for 3 reasons:

1) He is not qualified and has expressed no personal or professional interest in the Pinelands.

van drew12) His close personal and political ties to Senator Van Drew, who is currently leading the political campaign to force the Pinelands Commission to reconsider and approve the SJG pipeline, raise major concerns and appearance about his independence and objectivity on the pipeline.

In addition, Barr served as Treasurer to the Cape May democratic Committee and he was involved in handling thousands of dollars of contributions from IBEW and other supporters of the SJG pipeline.

These political ties and financial relationships with politically powerful pipeline supporters would undermine the independence and integrity of the Pinelands Commission and the Comprehensive Management Plan and erode public trust and confidence in the Commission.

3) Given the context and Governor Christie’s extraordinary efforts to strong arm, retaliate and pack the Commission with pipeline supporters and political loyalists, Mr. Barr’s confirmation would bring taint, disrepute, and public condemnation on the Judiciary Committee – and if confirmed – the Senate.

We’ll keep you posted as this develops – but urge folks to continue to keep the pressure on Senate President Sweeney and members of the Committee

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Political Posturing & Hypocrisy in High Places

January 26th, 2015 1 comment

Senator Thompson Flips Out After Being Called Out

The Senator Doth Protest Too Much, Methinks

A quick post on some fireworks that occurred after today’s Senate Environment Committee hearing on proposed legislation involving promotion of off shore wind and environmental justice.

The wind bill was released and the environmental justice bill was held for additional work.

There was some very good testimony you can listen to here (hit “listen to prior proceedings” and scroll to Senate Environment Committee).

But both bills certainly would be vetoed by Governor Christie and have virtually no chance of enactment.

So, instead of writing about the policy issues with the bills (which I support and have written about before, see this on wind and this on environmental justice), I’ll just share a sharp exchange I had with Senator Thompson (R-Ocean) after the hearing.

During the hearing, Thompson took strong exception to Senator Sweeney’s criticism of Gov. Christie and raised strong objections to injecting politics in decision-making.

So after the hearing, in a very soft spoken and respectful way, I asked Senator Thompson how he could reconcile his remarks opposing local political intervention at DEP with his actions in meeting with DEP Commissioner Martin and pressuring DEP to issue a NJPDES permit for a new sewage treatment plant on Crosswicks Creek in Plumsted.

He immediately got defensive and flustered and asked me exactly what was I talking about.

I replied that I had it in writing that he (and likely Assemblyman Dancer) had met with DEP Commissioner Martin and pressured DEP to issue a NJPDES permit for a new treatment plant, and to reverse longstanding DEP policies and relax regulations to do so.

Seemingly aware of the Assemblyman Fiocchi matter, he claimed that he was doing that on behalf of his constituents.

I replied that Lennar - who just signed a developers agreement with Plumsted - and other developers and United Water would benefit economically as well (PMUA is actively considering privatizing both water and sewer infrastructure) and that he had injected politics into DEP decisions, not the merits as he had just rode his high horse on during the Committee hearing.

After I said that, Thompson went wild. He physically got in my face, less than 4 inches from me, as he repeatedly poked his finger in my chest. [I had to ask him to stop touching me.]

He called me an asshole and told me to “stick it up my ass” and as he repeated that phrase, he gave me the middle finger. I’ve not seen anything like it since grade school. Total meltdown.

[Update: A reader just called and said that this kind of behavior, if it were conducted by a State employee in the workplace, would be grounds for discipline, including firing. The reader said this was the next phase of “sit down and shut up”]

So let me provide the context for my question and Thompson’s meltdown, so readers understand exactly what I called Thompson out for.

In a way, my question to Thompson is similar to the core issue in the Assemblyman Fiocchi ethics matter.

  • Off shore wind: Sweeney Calls Out Christie & the Koch Brothers, Thompson cries foul

Senate President Sweeney  was the prime sponsor off shore wind energy promotion legislation passed in 2010. Sweeney began the discussion of another pro-wind bill to implement that law, S-2711 after 4 years of delay by the Christie Administration. Sweeney had some strong words (verbatim remarks by Sweeney):

In March 2011, BPU was supposed to publish the wind regulations. The  fact that the BPU has not published regulations is a clear statement from the Administration that they’re opposed to wind energy, at the cost of the economy of the state of NJ.

We would have captured 1,000 manufacturing jobs in this industry. We were so far ahead of other states, up and down the east coast.

There was a conference in Atlantic City where the Lt. Governor spoke glowingly of how wonderful this is.

Now something happened.

I think the Governor’s ambitions changed and I know that the Koch Brothers don’t like clean energy.

Wham! Sweeney rightly nailed Christie for caving to Koch brothers to kill wind and harm NJ’s economy and jobs.

After the testimony, during the Committee’s deliberation, Senator Thompson (R-Ocean) opened with a salvo taking strong exception to Sweeney’s political criticism of the Governor (verbatim remarks by Senator Thompson):

I find it regrettable that this discussion began on a political basis. The first statement made was: “This hasn’t moved – the wind industry stuff – because the Koch Brothers aren’t into renewable energy, and the Governor may have some other direction he wants to go in.”

To me, that has nothing to do with what we’re considering here …. I think it should be weighed on its own merits.

So, Senator Thompson wants regulatory decisions based on the merits, not politics.

Aside from being absurd given how Gov. Christie’s political ambitions have blocked off shore wind, remember that.

Ironically, that is exactly the issue I just raised in our ethics complaint against Assembylan Fiocchi – undue and inappropriate political intervention

The bill was approved by the Committee by a 4-1 vote and released.

  • Environmental Justice: Thompson says he wants DEP permits based on science, not politics

The environmental justice bill (S1150) spurred a lot of testimony and was discussed at length by the Committee (here is my summary and analysis of that bill prior to the hearing today).

One of the key issues framed by Chairman Smith, was the role of local government. The bill would give local governments an effective veto over DEP permits in designated communities.

Senator Thompson again objected and took strong exception to the role of local government in DEP permit decisions – on similar grounds to his remarks about wind – follow this closely (verbatim remarks by Senator Thompson):

To me, the killer on this bill is when it says the bill prohibits the DEP from approving any permit without the local municipal governing body adopting an ordinance approving the permit application.

In essence, this takes away from DEP the ability to issue its own permit.

They can not grant a permit, not matter what their studies say.

So, now its going to be left to the local governing bodies.

Well, not only as a legislator but as County Chairman, I have a lot of contact with a lot of local governing bodies.

And I know that their decisions are not always based upon the facts – there are other factors that come into consideration by some members at times.

And the decisions may not be based on whether its appropriate to have this facility here, and so on, but may come for other reasons unrelated to any studies.

I’d be reluctant to take that final decision away from DEP.

I wonder what the “other factors” are Thompson was referring to?

So, let’s repeat that:

Senator Thompson says he knows that local decisions are “not always based on facts” and that he wants DEP permits to be based on “studies” not local politics.

During the wind debate, Thompson objected to injecting politics into BPU regulatory decisions.

But here is what Senator Thompson does, which is the exact opposite of what he says – here he is doing exactly what he just complained about: (from April 30, 2014 – PMUA minutes):

[Assemblyman] Mr. Dancer said Senator Thompson had recently met with Commissioner Martin at NJDEP. He said Senator Thompson had called him after the meeting and said the Commissioner was aware of Plumsted’s situation and would personally look into it and, if possible, try to expedite things.

Mr. Dancer also noted he received a call from Rick Brown of the NJDEP stating the Commissioner wanted to make sure this issue gets the attention it needs in a timely fashion.

[Assemblyman] Mr. Dancer questioned that if the DEP gives approval to the socio economic analysis, what is the next in issuing a permit for surface water discharge.

In other words, Thompson opposed exactly what he and Assemblyman Dancer – former Mayor of Plumsted – did with respect to meeting with DEP Commissioner Martin and pressuring DEP to issue a NJPDES permit with effluent limits that violate DEP’s own policies and standards.

And that is literally the definition of hypocrisy.

And when I called Thomson out on that, he flipped out – using profane language and gestures.

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“The sky won’t snow and the sun won’t shine”

January 25th, 2015 No comments
Blacks Creek, Bordentown, NJ

Blacks Creek, Bordentown, NJ

 

Don’t your feet get cold in the winter time? 
The sky won’t snow and the sun won’t shine 
It’s hard to tell the night time from the day   ~~~~ Desperado (Johnny Cash version)

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Meet the Mythmakers

January 24th, 2015 No comments

But happily ever after fails

And we’ve been poisoned by these fairytales ~~~~ The End of Innocence

After reading today’s Bergen Record, I need to get two burrs out of my saddle before I am able to sleep tonight.

Both share the same underlying problems: the attempt to champion the interests of the people, while spouting myths that benefit corporate interests. Both do a disservice to readers.

These are huge errors, requiring no special expertise to detect, and are easily documented by a simple Google search.

  • Revisionism on Eagles

The first one is easy.

In a story about the recovery of the bald eagle, reporter Jim O’Neill repeats a number of hypocrisies, myths, and historical revisionisms.

I won’t mention them all, but instead just two:

First, in the hypocrisy department, O’Neill and his sources tout the activism, collective political action, strong laws, strict enforcement, and well funded government programs that led to the bald eagle recovery effort – particularly bans and toxic site cleanup efforts.

“It’s incredible. It’s something I never thought in my wildest dreams that I’d see,” said Don Torino, president of the Bergen County Audubon Society. “It’s a story of people 40 years ago getting together, passing the Clean Water Act and the Endangered Species Act, banning DDT, and hoping something like this would happen. I think it ended up better than they even thought.”

Yet O’Neill’s sources in the conservation community, who point out this history and the effectiveness of regulatory mandates and the ban on DDT (they seem to have forgotten the PCB issue),  have not only abandoned any work on those kind of political and regulatory issues.

Groups like Audubon are leading the charge and actively espouse the current anti-regulatory and anti-government ideology, which eschews political activism and seeks to dismantle government in favor of “corporate stewardship”, private land management, and voluntary individual lifestyle changes and market based and consumer choice strategies.

Ironically – or hypocritically – these exact same conservation groups just defunded the very science, regulatory, and toxic waste management and site cleanup programs  that contributed to the bald eagle recovery success to fund open space, which does nothing to reduce the bioaccumulative chemicals that harm wildlife.

NJ Audubon led that effort.

[*I can't recall Audubon or other conservation groups working on toxics issues or site cleanups, even those poisoning wildlife with bioacummulative toxics. And now, when we need another round of massive organizing and government bans and equally bold measures like the DDT, PCB, and lead bans of the 1970's  - like bans on coal power plants and a phase out of fossil fuels - groups like Audubon are off doing feel good measures.]

Prior to open space funds raid, they remained silent as the NJ DEP abandoned those successful regulatory efforts as well (see:  New Jersey DEP Abandons Tougher Toxic Standards – Bald Eagle and Peregrine Falcon Warnings on Mercury, DDT and PCB Unheeded

Second, O’Neill parrots another standard historical revisionism, that of the “bi-partisan” glory days of the 1970′s.

For the record, I am referring to this standard myth, which is deeply misleading:

Laws provided important safeguards that helped the ongoing conservation efforts to restore bald eagle populations. Congress had passed the Clean Water Act in 1972 and the Endangered Species Act the following year. Both were signed into law by President Richard Nixon. The rebound of the eagles here reflects improving water quality in the state’s rivers and bays, Wheeler said.

The fact is that Nixon vetoed the Clean Water Act,.

Congress had to over-ride that veto. There was no “bi-parisan lovefest” (See: Clean Water Act 101—A bit of legislative history

[*See The Powell Memo for what was really going on at the time – and that Powell strategy led directly to our current state of affairs: corporate control, and groups like Koch Brothers fueled AFP and ALEC and the echo chamber of right wing think tanks like CATO Institute, The Heritage Foundation, and The Federalist Society. Nixon’s man Powell wrote the strategy that the Koch Brothers now implement.]

Perhaps worse, completely ignored are the activist movement politics and tactics that led to those legislative victories.

Much of the conservation community in NJ has virtually abandoned the tough struggles, aggressive political tactics, and activists roots that won victories they now coast on.

Virtually all of the funders have stopped funding that kind of work.

To bask in the success of that work while benefitting from the dismantling of that work is a disgrace.

  • Drinking EPA Kool-Aid on the Role of Costs in Superfund Cleanup Decisions

This issue is more complex and requires that the intrepid editorial writers do a little research before simply accepting EPA statements at face value.

Unfortunately, editorial writers tend to depend on their news reporters – and in this case that reliance is misplaced.

I am referring to the Record’s editorial about the Ford Ringwood site: Toxic Legacy Remains

That editorial, while critical of EPA’s cleanup plan and expressing the appropriate perspective on the need for a complete cleanup, lets EPA off the hook:

The EPA still must approve the plan to cap the site. Federal law, unfortunately, seems to encourage the EPA to sanction proposals that are less costly than other options and that lead to redeveloping Superfund sites. That could be good news for the borough’s capping and recycling center proposal.

As I’ve written, it is simply not legally true – as Record reporter Scott Fallon has written (quoting self -serving EPA bureaucrat Walter Mugdan) – that the federal Superfund law mandates the lowest cost option or “seems to encourage the EPA to sanction proposals that are less costly than other options”.

Just the opposite is true – the Superfund law has a “preference for permanent remedies”.

Cleanup cost and cost effectiveness are NOT more important factors than a permanent complete cleanup protection of public health and the environment. Choice of cleanup option is a balancing test (see EPA on the role of costs in Superfund).

The NCP states that the overall goal of the remedy selection process is “to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste” (40 CFR 300.430(a)(1)(i)).

Under EPA Superfund laws and regulations, EPA must consider a number of things when making cleanup decisions – they are of three different types, for a total of 9 overall criteria .

Note that these criteria are not given equal weigh – especially cost, which is just one of 5 balancing criteria and can not over-ride the threshold criteria (see 40 CFR Part 300):

(A) Threshold criteria. Overall protection of human health and the environment and compliance with ARARs (unless a specific ARAR is waived) are threshold requirements that each alternative must meet in order to be eligible for selection.

(B) Primary balancing criteria. The five primary balancing criteria are long- term effectiveness and permanence; reduction of toxicity, mobility, or volume through treatment; short-term effectiveness; implementability; and cost.

(C) Modifying criteria. State and community acceptance are modifying criteria that shall be considered in remedy selection.

EPA initially based the selected preferred remedy – complete removal of waste material – in part by consideration of the preference for permanent remedies and assumptions about future land use.

To now reverse that original decision and allow the “cap” or “contingent remedy”, EPA considered what they called in press reports “cost-effectiveness”, an undefined and discretionary concept I could not find in the regulations or the Ringwood ROD.

The EPA could have stood by their original cleanup plan.

They didn’t – the caved to Ford’s political pressure.

EPA should be held accountable for that – they should not be allowed to hide behind a false portrait of the role of costs in Superfund cleanup law, especially by well meaning editors at the Bergen Reocrd who seem to want to avoid embarrassing the lousy reporting of Scott Fallon.

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