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A Dirge To McHarg and Mumford – Who Are Rolling Over in Their Graves

October 29th, 2012 1 comment

“Ignorance is compounded with anarchy and greed to make the raddled face of the Jersey shore.”

“… there came retribution.” 

Sandy Destruction: “Man Made, Foreseen, Preventable”

My heart breaks.

I moved recently, so had the opportunity to revisit many important books in my library – one of which I am having the joy of re-reading and think of today: Ian McHarg’s 1967 classic: “Design with Nature” (take a look at some visuals of that work).

The introduction to McHarg’s book was written by another towering favorite of mine, Lewis Mumford, whose introduction brilliantly framed the context for the book:

There is still only a small shelf of books that deals with man’s relation to his environment as a whole: not only with the so called physical universe of the planets and the stars, the rocks and soil and the seas, but with the creatures that inhabit the earth – all the forces and animate beings that have helped to make man himself what he is. This part of man’s knowledge of himself was slow to develop; for the early Greek thinkers tended either to examine man in isolation, or to examine nature without noting the presence of man: as if any part of it could be understood except through the instruments and symbols that the human mind provided, for purposes in one way or another furthered man’s own existence.

Design With Nature is a notable addition to the handful of important texts that begin, at least in the Western tradition, with Hippocrates’ famous medical work on Airs, Waters, and Places: the first public recognition that man’s life, in sickness and in health, is bound up with the forces of nature, and that nature, so far from being opposed and conquered, must rather be treated as an ally and friend, whose ways must be understood, and whose counsel must be respected. [...]

One cannot predict the fate of a book such as this. But on its intrinsic merits I would put it on the same shelf that contains as yet only a handful of works in a similar vein, beginning with Hippocrates, and including such essential classics as those of Henry Thoreau, George Perkins Marsh, Patrick Geddes, Carl Sauer, Benton MacKaye, and Rachel Carson. This is not a book to be hastily read and dropped; it is rather a book to live with, to absorb slowly, and to return to, as one’s own experience and knowledge increases. Though it is a call to action, it is not for those who believe in “crash programs” or instant solutions: rather, it lays a fresh course of stones on a ground plan already in being. Here are the foundations for a civilization that will replace the polluted, bulldozed, machine-dominated dehumanized, explosion-threatening world that is even now disintegrating and disappearing before our eyes. In presenting us with a vision of organic exuberance and human delight, which ecology and ecological design promise to open up for us, McHarg revives the hope for a better world. Without the passion and courage and confident skill of people like McHarg that hope might fade and disappear forever. [emphases mine]

McHarg begins his book with a chapter of personal biography and philosophy:

This book is a personal testament to the power and importance of sun, moon, stars, the changing seasons, seedtime and harvest, clouds, rain, rivers, the oceans and the forests, the creatures and the herbs. They are with us now, co-tenants of the phenomenal universe, participating in that timeless yearning that is evolution, vivid expression of time past, essential partners in survival and with us now evolved in the creation of the future.

Our eyes do not divide us from the world, but unite us with it. Let this be known to be true. Let us then abandon the simplicity of separation and give unity its due. Let us abandon the self-mutilation which has been our way and give expression to the potential harmony of man-nature. The world is abundant, we require only a deference born of understanding to fulfill man’s promise. Man is that uniquely conscious creature who can perceive and express. He must become the steward of the biosphere. To do this he must design with nature.

Ironically, his first substantive chapter to apply that lofty design philosophy is focused on a study of the NJ shore!

Titled “Sea and Survival“, McHarg presents fundamental dynamics and ecology of the barrier island, explaining clearly the relationships between ocean; beach; primary, secondary and back dunes; the bayshore and the bay.

McHarg concludes this presentation with planning principles and “positive recommendations” about the development and protection of the shore, a call for ecological based planning:

Sadly, in New Jersey, no such planning principles have been developed. While all the principles are familiar to botanists and ecologists,this has no effect whatsoever upon the form of development. Houses are built upon dunes, grasses destroyed, dunes breached for beach access and housing; groundwater is withdrawn with little control, areas are paved, bayshore is filled and urbanized. Ignorance is compounded with anarchy and greed to make the raddled face of the Jersey shore.

McHarg then presents the predictable outcome of this ignorance and greed:

From the fifth to the eighth of March 1962 , there came retribution. A violent storm lashed the entire northeast coast from Georgia to Long Island. For three days sixty-mile-an-hour winds whipped the high spring tides across a thousand miles of ocean. Forty-foot waves  pounded the shore, breached the dunes and filled the bay, which spilled across the islands back to the ocean. When the storm subsided, the extent of the disaster was clear. Three days of storm had produced eighty million dollrs worth of damage, twenty-four hundred houses destroyed or damaged beyond repair, eighty-three hundred houses partially damaged, several people killed and many injured in NJ alone. Fires subsequently added to this destruction; roads were destroyed, as were utilities.

Fast forward 50 years – welcome Hurricane Sandy and the know-nothings running corporate America. (XPN is playing Allman’s “Stormy Monday” as I write this – chills all up and down my spine!)

So, in a dirge to McHarg and Mumford (and as the media again swings and misses at the real story), today we repost this July 2012 post, which was done in the wake of the Monmouth water line collapse. The circumstances clearly differ, but the underlying message is the same.

For NJ American Water, DEP, BPU, and Sustainable Jersey

July 6th, 2012 

Man Made, Foreseen, Preventable

“Rosebud”

Only driver left out was Heat, which increases water demand, evaporation, and PET

 

Inundation of Treatment Plants and Pump Stations/Damage to Drinking Water Treatment Infrastructure

Regional Level Action ~ Update 100‐year and 500‐year Floodplain Maps

Regardless of the quality of science available to determine the impacts of climate change on physical conditions in the Basin, specific inundation risks can only be effectively evaluated with updated shoreline topographical information.

Utility Level Action ~ Evaluate Placement of New Construction and Materials Resiliency

Drinking water utilities should evaluate the placement of new construction, monitoring equipment, and other infrastructure to avoid low‐lying areas or locations vulnerable to storms and other harsh weather  conditions. Ranges of potential flooding should be evaluated using the best available science. Adaptations can be refined as more information becomes available about specific impacts of sea level rise, potential increases in streamflow and other changes in the basin that pose a risk to drinking water utilities. Utilities should also evaluate and incorporate use of more resilient construction materials during day‐to‐day upgrades.

Increased Spills and Accidents/Power Outages and Customer Supply Issues

Regional Level Action ~ Support the XXXXXXXX Regional Early Warning System

The XXXXXXX Regional Early Warning System notifies drinking water utilities in the event of accidental contamination in certain areas of the XXXXXXX Basin. The system provides critical information to utilities so they can respond swiftly and appropriately to unexpected threats. Efforts to expand and improve this system must be supported to ensure the continued protection of drinking water supplies in the Basin.

Addresses: Increased Spills and Accidents
Involves: EPA,XXXX, state government, USCG, municipal government, Offices of Emergency Management

Utility Level Action ~ Evaluate Emergency Response Protocols

At the same time that regional emergency response protocols are being evaluated, water suppliers should conduct assessments of their individual utility emergency response protocols to identify vulnerabilities, fill gaps and develop needed contingency and customer communication plans. Revisiting emergency response plans can help protect utilities in the event of unexpected accidents or spills which may become even more prevalent with changing physical conditions in the Basin.

Addresses: Increased Spills and Accidents, Power Outages & Customer Supply Issues

Utility Level Action ~ Evaluate Customer Notification Needs and Protocols

Analyses show that XXXXXX and XXXXXX  are steadily increasing in the main stem XXXXXXX most likely because of increased development, road salts application, and inputs from wastewater and drinking water treatment. These parameters are not removed during conventional drinking water treatment and could pose problems for special needs customers such as dialysis patients and certain industries. Impacts of climate change on conditions in the Basin may exacerbate rising salinity. Water utilities should evaluate current salinity levels to determine if more frequent notification to special needs customers is required.

Rosebud: name that Report

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DEP Using “Frankenstorm” as Cover for Weakening Regulations

October 26th, 2012 No comments

DEP Deploys Classic “Shock Doctrine” Tactics

Only a crisis produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around.  ~~~ Economist Milton Friedman

[Update - 11/14/12 - We're on the same page - Check out this 11/5/12 Naomi Kline piece - "Superstorm Sandy - a People's Shock?" - note particularly the role of the Occupy Movement in helping people and the opportunities she sees. - end update]

Back in the day, disasters – like oil spills or rivers catching on fire or chemical plants blowing up or toxic waste disposal - used to prompt governments to respond and take steps to strengthen laws and regulations to prevent a recurrence and protect the public.

But more recently – perversely – right wing forces have seized the initiative, and used crises as opportunities to attack and rollback government and regulations, while advancing a corporate agenda of privatization and deregulation.

Naomi Kline wrote a brilliant and all too prescient book about all that called “The Shock Doctrine – The Rise of Disaster Capitalism” - here are examples of how the “Shock Doctrine” works:

At the most chaotic juncture in Iraq’s civil war, a new law is unveiled that would allow Shell and BP to claim the country’s vast oil reserves…. Immediately following September 11, the Bush Administration quietly out-sources the running of the “War on Terror” to Halliburton and Blackwater…. After a tsunami wipes out the coasts of Southeast Asia, the pristine beaches are auctioned off to tourist resorts…. New Orleans’s residents, scattered from Hurricane Katrina, discover that their public housing, hospitals and schools will never be reopened…. These events are examples of “the shock doctrine”: using the public’s disorientation following massive collective shocks – wars, terrorist attacks, or natural disasters — to achieve control by imposing economic shock therapy.

Well, DEP Commissioner Bob Martin obviously got the Milton Friedman memo and understands the “Shock Doctrine”.

[Update - DEP does more diversion - closes shellfish beds]

The “Frankenstorm” should be a teachable moment to show how “extreme weather” and lax regulations of greenhouse gas emissions and coastal over-development have put thousands of people and billions of dollars of property in harms way.

The storm should be a clarion call for finally addressing the rising global warming crisis.

But instead of that teachable moment and reform opportunity, Martin is shamelessly using the oncoming “Frankesnstorm” as cover to promote the upcoming weakening of DEP flood hazard/stream encroachment regulations.

Weakening of the Flood Hazard regulations will be controversial – so Martin is killing two birds with one stone:

  • diverting focus from the global warming “extreme weather” connection, DEP failures, and the need for stronger planning and regulation; and
  • getting out in front of the controversial upcoming debate on weaking stream encroachment regulations.

Truly shameful.

But not surprising after a year of denial about record temperatures, wildfires, drought, and extreme tornadoes and thunder storms.

Here is the full text of Martin’s letter to NJ Mayors:

From: DEP Commissioner <Commissioner@dep.state.nj.us>
Date: Thu, Oct 25, 2012 at 7:59 PM
Subject: Hurricane Sandy Preparation
To: DEP Commissioner <Commissioner@dep.state.nj.us>

Dear Mayor,

As DEP prepares for potential statewide impacts from Hurricane Sandy, I wanted to remind you how you can help mitigate impacts in your own town and assure you that DEP is here to assist you however we can.

First, we recommend picking up as many leaves off the ground as possible, running your street sweepers, and ensuring that storm drains are stormwater basins are clear of any debris. Please also advise your residents to pick up leaves and any other debris from their own property.

Second, if you need to remove any trees, debris or other obstructions, including shoal dredging, from streams to prepare for this storm, you can conduct those activities without contacting DEP if you follow the guidelines athttp://www.nj.gov/dep/landuse/download/fh_012.pdf. If you need to do other activities that do not fit these guidelines, please call us and we will make every effort to work through any issues with you over the phone. In most cases, all we need is notification of what you are doing on an emergency basis. You can contact us about your projects or with any questions you may have by calling Nabil Andrews or Tina Wolff, DEP engineering and environmental staff dedicated to stream cleaning projects, at (609) 633-6563.

Moving forward, DEP will soon be proposing regulatory changes to make it even easier for you to maintain streams and ease any flooding in your towns, including broader Permits By Rule, automatic authorizations if the Governor or FEMA declares a State of Emergency, new General Permits and simpler Individual Permits.

We are compiling in one place on our website information and resources to help get you through the storm from a DEP perspective. I will email you again on Friday with the link to the Hurricane Sandy information that is being added to the DEP homepage at nj.gov/dep, and we will continue to add to that site any new information you might need.

As always, DEP’s emergency responders are on call 24/7 to manage any spills or discharges or other incidents that may impact the environment. Anyone who experiences or observes an incident should call the DEP hotline: 1-877-WARN-DEP.

Sincerely,

Bob Martin
Commissioner
NJ Department of Environmental Protection

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“Frankenstorm” Another Example of Global Warming Extreme Weather

October 26th, 2012 No comments

NJ’s Longstanding High Vulnerability to Major Storms Ignored  

Climate Change Adaptation Planing Neglected – Shore Poorly Prepared

beach and dunes severely eroded behind homes in Normandy Beach

“In New Jersey the coast is so heavily urbanized and developed you can’t expect people to simply agree to retreat – there’s too much invested in the shore,” said Martin Bierbaum, director of the Municipal Land Use Center at the College of New Jersey. ~~~  Coastal conundrum: New Jersey bill may protect economy but not environment

[Updates below]

Well Marty, people don’t necessarily need to agree to “retreat”.

Reality has a way of intruding – a major storm just might make relocation decisions for them.

Don’t say you weren’t warned.

We – and many others, e.g. see

have been writing about this for years now.

Here is Jim Hansen’s take:

The standard scientist answer is “you cannot blame a specific weather/climate event on global warming.” That answer, to the public, translates as “no”.  However, if the question were posed as “would these events have occurred if atmospheric carbon dioxide had remained at its pre-industrial level of 280 [parts per million] ppm?”, an appropriate answer in that case is “almost certainly not.” That answer, to the public, translates as “yes”, i.e., humans probably bear a responsibility for the extreme event.

In either case, the scientist usually goes on to say something about probabilities and how those are changing because of global warming. But the extended discussion, to much of the public, is chatter. The initial answer is all important. Although either answer can be defended as “correct”, we suggest that leading with the standard caveat “you cannot blame” is misleading and allows a misinterpretation about the danger of increasing extreme events.

We are warning the public and trying to get word out and some policy response to stuff like this: (DEP findings from the Section 309 Coastal Hazards Assessment)

Many parts of New Jersey’s densely populated coastal area are highly susceptible to the effects of the following coastal hazards: flooding, storm surge, episodic erosion, chronic erosion, sea level rise, and extra-tropical storms. Reconstruction of residential development and the conversion of single family dwellings into multi-unit dwellings continues in hazardous areas… the value of property at risk is increasing significantly. With anticipated accelerating sea level rise and increasing storm frequency and intensity, vulnerability to the risks of coastal hazards will not abate; it will only become more costly. [...]

…in certain instances, structural engineering solutions will not be practical or economically feasible. In these cases future public and private development and redevelopment must be directed away from the hazardous areas. While some derogatorily refer to this option as “retreat,” from the perspective of sound planning based on the best available science, the concept actually involves “strategic adjustment.” Prudent planning requires that we expand upon the existing studies of the societal, economic, and environmental costs of possible mitigative actions while the greatest number of alternatives exist. 

So, as the storm bears down on the Mid-Atlantic shore and the news media enters the typical mindless feeding frenzy, we will try to get ahead of the news cycle to remind people of essential facts that again will be ignored by the media and public policymakers:

1) This storm is made more severe by global warming;

2) Storm frequencies, intensities, and damage will only increase over time;

3) We need to begin a radical emergency program to phase out fossil fuels and build a renewable energy infrastructure;

4) We need to adapt to severe climate/weather changes that are inevitable given past emissions and increasing atmospheric CO2 levels;

5) We are doing virtually nothing to address any of these major problems – examples:

[Update #1 -  we've previously severely criticized DEP for failure to plan and prepare for coastal storms and for delegating responsibility to local government, so not surprisingly DEP is getting "out in front" of the storm.

But they are focusing on and doing the wrong thing!

DEP says nothing about global warming, climate change adaptation, or limiting development in hazardous locations!

DEP is focused exclusively on rolling back DEP regulations! Here's Commissioner Martin's letter to Mayor's:

Moving forward, DEP will soon be proposing regulatory changes to make it even easier for you to maintain streams and ease any flooding in your towns, including broader Permits By Rule, automatic authorizations if the Governor or FEMA declares a State of Emergency, new General Permits and simpler Individual Permits.

Update #2 - I thought folks might be interested in a good question from an excellent reporter, with my response:

Hi Bill,

Thanks so much for sending your post. I’m intrigued in particular by one thing, which I may write about next week:

1) This storm is made more severe by global warming;

Is that actually provable, or is it more a matter of extrapolation and conjecture, however logical? What’s the scientific basis? Do you have reports/data/etc?  Any scientists willing to discuss and confirm?

Thanks,

My reply:

The general theory is that global warming increases air, land and water surface temperatures, which increase atmospheric moisture content.

Warmer, wetter air results in more precipitation.

Warmer air and warmer ocean temperatures increase the energy of storms.

Storms therefore become more severe and frequent.

The "provability" is complex (technically, there are both plausible causal mechanisms (see above) and suggestive but not yet statistically reliable data), but that complexity is discussed by Jim Hansen:

Here is Jim Hansen’s take:

The standard scientist answer is “you cannot blame a specific weather/climate event on global warming.” That answer, to the public, translates as “no”.  However, if the question were posed as “would these events have occurred if atmospheric carbon dioxide had remained at its pre-industrial level of 280 [parts per million] ppm?”, an appropriate answer in that case is “almost certainly not.” That answer, to the public, translates as “yes”, i.e., humans probably bear a responsibility for the extreme event.

In either case, the scientist usually goes on to say something about probabilities and how those are changing because of global warming. But the extended discussion, to much of the public, is chatter. The initial answer is all important. Although either answer can be defended as “correct”, we suggest that leading with the standard caveat “you cannot blame” is misleading and allows a misinterpretation about the danger of increasing extreme events.

It is NOT conjecture or speculation, but it is science, statistics, and modeling.

In my post, (see: http://www.wolfenotes.com/2012/10/frankenstorm-another-example-of-global-warming-extreme-weather/

I linked to the following IPCC Report, but there are others:

IPCC Report Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation;

I am not familiar with scientists willing to go on the record on this.

Wolfe

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DEP Dispute Resolution – Deals Done in the Dark

October 25th, 2012 No comments

DEP Denies Access to Records of New Office of Dispute Resolution

DEP Goes From the “Burning Platform” to the “New World Order”

DEP Commissioner Bob Martin - DEP Mission and "culture" need to change to promote economic development and treat business like "customers".

Our recent accountability project: “Taking a Closer Look at Christie DEP Changes” was dealt another setback today, when DEP again denied access to public records of the new Office of Dispute Resolution.

It is shocking that DEP feels that they can create an accountability free black hole, particularly given the significant role of the Office in environmental regulation and enforcement of environmental laws.

According to DEP’s website, the mission of the Office is:

The Department of Environmental Protection (DEP) has established the Office of Dispute Resolution to provide a forum other than the administrative and trial courts for resolution of disagreements between the regulated community and the DEP. 

This forum aims to serve a dual purpose: not only to reduce lengthy legal proceedings that can be costly for all involved, but also to establish more meaningful and effective lines of communication between environmental regulators and the regulated community.  Our mission is to ensure fair and efficient management and settlement of disagreements through alternative dispute resolution processes.

There is no mention whatsoever of the public in these important negotiations and “lines of communication”. I guess it is clear who DEP is serving and who their “customers” are.

Obviously, that Office has the potential to became a back door for secret deals that compromise enforcement of environmental laws.

To prevent that kind of abuse, that Office requires robust transparency measures to prevent obvious potential abuses, which environmental critics have described as “Let’s Make a Deal”.

[Like the new Office of Economic Analysis, the Office of Dispute Resolution was not established in legislation but was again created by Administrative fiat. And there seems to be issues of federal law and delegation involved, as I see no restriction on intervention in enforcement of federal requirements - calling EPA!] 

The Office was originally created back during the Whitman Administration (1994 – 2001), when Governor Whitman installed a personal crony – her college roommate – to head the effort. The Office was designed to implement Whitman’s “Open for Business” policy and was a key component of her DEP targeted “Strategy for Regulatory Reform” (STARR).

The Whitman “Open For Business” policy was exposed as a attack on the environment in an award winning investigative journalistic series by late reporters Dusty McNichol and Kelly Richmond, formerly with the Bergen Record.

In 2002, the Office was abolished by Gov. McGreevey’s DEP Commissioner Brad Campbell, who agreed with environmental advocates that the Office was inherently flawed, lacked transparency and accountability measures, undermined strict enforcement policy, and was prone to abuse and back room deals driven by politics and undue influence of special interests.

Under Governor Christie, the slogans have changed but the underlying [pro-business - anti-regulatory] policy remains the same.

Whitman’s pro-business rollbacks – under the guise “regulatory reform” – have become even more explicitly an attack on regulation and expansive effort to promote regulatory relief, under the guise of reducing “job killing red tape“.

As part of that Christie “regulatory relief” policy, DEP Commissioner Bob Martin restored the Whitman Office.

Commissioner Martin aggressively promoted his rollback “transformation”  agenda, in DEP press releases (e.g. like this and this) and with outreach to the business community.

This law firm’s summary of a DEP breakfast meeting with the Chamber of Commerce is typical in setting the giddy pro-business anti-regulatory tenor of the time: “A Glimpse into the NJ Department of Environmental Protection”

At a well-attended New Jersey Chamber of Commerce Breakfast in late May, Deputy Commissioner Irene Kropp described the evolving organizational responsibilities of three key managers at the New Jersey Department of Environmental Protection (NJDEP), Chief of Staff Magdalena Padilla, Chief Counselor Ray Cantor and Irene Kropp. These responsibilities are evolving as Commissioner Bob Martin develops the Department’s Vision Statement, which should be posted on the NJDEP website soon.  Shortly thereafter, the Department will publish its “Transformation Agenda,” which will be designed to implement the Vision Statement and presumably change the way NJDEP does business. [...]

The Department recognizes that if changes are to be made, they need to be made early in the Administration. Time will tell whether the NJDEP can actually “transform” itself into a more user-friendly and service-oriented organization or whether it will simply be business as usual. We are seeing some positive signs.

Deputy Commissioner Kropp didn’t just dance for the Chamber of Commerce – she paraded around the DEP building, threatening DEP colleagues who didn’t fall in line with Martin’s pro-business agenda, including the infamous “burning platform” powerpoint:

Kropp threatens staff

Long term DEP career middle managers described it as the “New World Order” at DEP.

So, important questions jump to mind, such as:

Who is that Office meeting with?

What are the regulatory and enforcement disputes they are negotiating?

What are the outcomes of these negotiations?

What is the effect on the environment and the integrity of the enforcement program?

Why is DEP denying OPRA records requests for this information?

Are there any real investigative journalists still working in NJ?

We’ll keep you posted – no way DEP can get away with this OPRA abuse.

For the record, here is my OPRA request and DEP denial:

I request public records of the Office of Alternate Dispute Resolution, including: 1) participants in the program, including cases/disputes handled; 2) the administrative record of each case, e.g. all documents submitted as part of the dispute; 3) the disposition of cases/outcomes of the dispute resolution process; 4) Reports and/or records generated by the Office, including memoranda, case summaries, emails, phone logs, meeting logs, meeting notes,  and phone logs (sic) regarding disputes brought to the Office.

Here is DEP’s denial, again invoking the “overly broad” loophole – I smell a test case coming on this: 

Addendum Disposition Notes: This request has been denied on the basis that the request is overly broad and of the nature of a blanket request for a class of various documents rather than a request for specific identifiable government records, thereby being an invalid OPRA request (See Gannett NJ Partners v Middlesex, 379 NJ Super 205, 212 App Div 2005). In addition, OPRA does not require the NJDEP to conduct research & correlate data pursuant to N.J.S.A. 47:1A-9 & Mag Entertainment v Div of Alcoholic Beverage Control 375 NJ Super 537 (App Div 3/05), Bent v. Stafford Police Dept 381 NJ Super 534 (App Div 2005), and GRC Decision in Asarnow v Dept of Labor & Workforce Development, GRC Complaint # 2006-24 (May 2006).

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DEP Covers Up Role of New Office of Economic Review

October 24th, 2012 1 comment

Denies OPRA Records Request in Less Than 24 Hours

The NJ Open Public Records Act (OPRA) gives public agencies 7 working days to respond to records requests, but it sure didn’t take DEP that long to deny my recent OPRA request for records on the new DEP Office of Economic Analysis.

DEP denied the request in less than 24 hours!

The new DEP Office of Economic Analysis is particularly important for at least 3 reasons:

First, that Office is housed in the Commissioner’s Office and is tasked with conducting “cost benefit analysis” of proposed DEP rules in accordance with the requirements of Governor Christie’s Executive Order #2, which requires that State agencies provide “immediate regulatory relief”;

Second, DEP Commissioner Bob Martin has mandated that DEP’s Mission be expanded to include “promotion of economic development”. Presumably, the Office of Economic Analysis would play a lead role in that effort.

Third, DEP Assistant Commissioner Siekerka just bragged that the Office reviews virtually all DEP policy and regulatory initiatives, so it is crucial to understand what that Office does and how it relates to environmental policy and decisionmaking at DEP to implement NJ laws.

DEP Assistant Commissione Siekerka - a member of the Roma Bank Board of Directors

I filed the OPRA request after learning that DEP Assistant Commissioner Siekerka praised that Office and its Director, Ben Witherell, in a speech on Saturday at the ANJEC Environmental Congress.

That sure takes some arrogance! – trot out a DEP Assistant Commissioner to publicly tout the work of a new Office they created, and then deny a public request for records of the work of that Office!

The DEP website provides no Mission statement or other description of the duties and responsibilities of that Office.

I contacted the Director of the Office, Ben Witherell, to ask for information and Ben replied that I should file an OPRA request. Ben copied the DEP OPRA Office Manager.

(like his boss Commissioner Martin who has no environmental training or qualifications, Ben has no academic training or credentials in economics or environmental economics – that’s sure some qualification for the head of an Office of Economic Review!)

Here’s the full email exchange:

From: “Ben Witherell” <Ben.Witherell@dep.state.nj.us>
To: “bill_wolfe@comcast.net” <bill_wolfe@comcast.net>
Cc: “Matt Coefer” <Matt.Coefer@dep.state.nj.us>
Sent: Monday, October 22, 2012 12:03:40 PM
Subject: RE: Economic analysis

Mr. Wolfe,

Most often we provide assistance to the program staff responsible for the rule.  The analyses our office conducts or assists with relevant to rulemaking and Executive Order #2 is contained in the “Economic Impact” section of the rule itself when it is published.    If you need assistance with finding this information please contact Mr. Matthew Coefer of our OPRA office, and copied here.

Sincerely,

Benjamin Witherell

Director of Economic Analysis

NJ Department of Environmental Protection Office of the Commissioner

401 E. State Street

P.O. Box 402

Trenton, NJ  08625-0402

t. 609.777.4265

ben.witherell@dep.state.nj.us

I responded as follows:

Thanks Ben – I’ve already filed an OPRA request.

Please allow me to clarify my request – are you suggesting that your Office only gets involved in the “economic impact” of proposed DEP rules?

I was under the impression that virtually all DEP policy and program initiatives were within the scope of your Office (as well as economic view or rules pursuant to EO #2).

Am I misinformed?

Just two examples of projects I have been involved with: Barnegat Bay Management Plan and lease valuation of state lands.

Also, based on your response, I will assume that there is no formal policy and procedure, methodology, Guidance, or mission statement for your Office. Please correct me if my assumption is wrong.

Bill Wolfe

The DEP’s Office of Economic Analysis – conceptually – serves a similar role and performs similar functions in the regulatory arena as the federal Office of Management and Budget Office of Information and Regulatory (OIRA).

OIRA tends to use “cost benefit analysis” and other economic tools to delay, weaken and even kill regulations designed to protect public health and the environment. So its controversial work receives strict scrutiny and comes under regular strong criticism from environmental and public interest groups, like OMB Watch.

However, OIRA at least operates somewhat openly and  transparently  - there is a website, federal law and Executive Orders that govern their work, and there are basic document disclosure and other accountability measures to provide some transparency of the work they do.

In contrast, the DEP Office of Economic Analysis is a black hole.

The Office is NOT authorized by any act of the Legislature. Yet it has a significant role in using economics to interpret and apply environmental laws, sometimes in ways that contradict the standards in the law or otherwise conflict with legislative intent.

There is no openness or transparency - no website, no mission statement, no policy and procedures, no public review or participation, and no disclosure of the intervention of the Office in various DEP functions.

And now DEP has just confirmed that.

So, just what are they doing in that Office?

We will get to the bottom of this one, even if it takes a litigation crowbar.

Here is the OPRA request and DEP denial:

According to DEP website and public remarks of Assistant Commissioner Siekerka on 8/20/12, the DEP’s Office of EConomic Analysis is tasked with conducting “cost benefit analysis” of agency policy and regulatory proposals. I request copies of all public records of the Office of Economic Analysis, including: 1) all cost benefit analyses conducted; 2) all comments and records regarding the Office’s review of DEP policy and/or regulatory proposals, including Reports, written comments, emails, meeting logs and meeting notes; 3) all documents authored by and emaisl of Ben Witherell, Director of that Office, regarding review of DEP policy and/or regulatory proposals.

Her is DEP’s denial:

Addendum Disposition Notes: This request has been denied on the basis that the request is overly broad and of the nature of a blanket request for a class of various documents rather than a request for specific identifiable government records, thereby being an invalid OPRA request (See Gannett NJ Partners v Middlesex, 379 NJ Super 205, 212 App Div 2005). In addition, OPRA does not require the NJDEP to conduct research & correlate data pursuant to N.J.S.A. 47:1A-9 & Mag Entertainment v Div of Alcoholic Beverage Control 375 NJ Super 537 (App Div 3/05), Bent v. Stafford Police Dept 381 NJ Super 534 (App Div 2005), and GRC Decision in Asarnow v Dept of Labor & Workforce Development, GRC Complaint # 2006-24 (May 2006).

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