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 Groups May be “Torn” – But Some Group’s Credibility Is Shredded

Public Lands Management Must Be a Public Process

[Update: 2/18/16 –  This is not expressing support for the FSC model or FSC standards. I am merely criticizing Eliot and the HiCo. They supported the Forest Stewardship bill only with the condition that FSC certification would provide a necessary safeguard. That was their position, not mine. I simply am saying that because the DEP opposed the FSC certification, that it would never be in a bill that would be signed into law by the Gov. Therefore, the HiCo safeguard is gone and they should no longer support the bill. ~~~ end update]

NJTV news did a piece on the “Forest Stewardship” bill the other night – Environmental Groups Torn Over Forest Stewardship Bill  (link includes the transcript and video.)

Let me be blunt right up front and make two points.

Point #1 – given the current facts, this is a flat out lie:

“We felt this was a bill that was going to allow logging on state-owned lands, which we of course opposed, but with the stipulation that all forest stewardship plans would require independent certification from the Forest Stewardship Council, the bill became more about stewarding our forests than about logging,”

It is simply a lie to say that the FSC will be certifying forestry in NJ.

DEP made this perfectly clear in a June 10, 2013 letter to the Legislature – let me quote the pertinent text:

The DEP’s remaining concern would be a mandatory Forest Stewardship Council (FSC) certification required for any stewardship plans we develop … While we respect FSC and recommended incorporating the FSC standards into the legislation, this mandatory certification is an un-necessary and costly requirement.  The DEP is the steward of New Jersey’s environment; we do not need our work validated by somebody else. Moreover, this unnecessary requirement adds a significant financial cost to the program, which will approach approximately $100,000 in the first year.

Repeat: FSC will not be certifying forestry in NJ – DEP is in charge and Elliott Ruga knows this, which makes his statements a bold faced lie.  Prior to June 10, he could have said this, but not after. He is now intentionally lying and misleading the public.

But it is not just that DEP has rejected FSC oversight.

Without FSC oversight and certification – or requirements in the bill to adopt FSC standards as State DEP regulations – FSC “standards” themselves do not exist. They are merely guidelines.

A “standard” is something that is legally binding, in contrast to a guideline or “best management practice”, which are voluntary.

The bill does include FSC standards but does NOT require FSC standards be implemented in forest management plans or enforced.

Rather, the bill leaves DEP in complete charge of determining if and when FSC standards apply or if and when to implement or enforce any FSC standard.

The DEP Forester decides whether the DEP forestry program “conforms” to FSC (see Section 3.b.)

There are no DEP regulations or public review process to hold the DEP Forester accountable to this FSC “conformance” determination.

The original version of the bill included explicit public review requirements – including public hearings.

Those mandatory public review requirements were eliminated and are not in the current Senate Substitute version.

Rather, public participation is up to DEP, based on how DEP implements the FSC public review standards. That is very likely to produce the hand picked faux “stakeholder” process.

DEP has convened dozens of these “stakeholder” groups, and they did so in negotiating this bill.

DEP hand picks friends and supporters – critics and the general public are completely shut out of that DEP stakeholder process. It is NOT a traditional public hearing process.

Section 3.b.(5), regarding FSC certification,

(5) seek and obtain the forest management certification from the Forest Stewardship Council for each forest stewardship plan developed;

will certainly be vetoed out by the Governor, in light of DEP’s June 10 letter testimony opposing it.

Section 4 provides that the State Forester design and implement the program, and not subject to transparent, participatory, and science based regulations.

The program will operate in the State Forester’s sole discretion because of the lack of controlling regulations and because FSC will not be reviewing, certifying and auditing the DEP forestry program.

Lets repeat : DEP rejected FSC certification – and in writing to the Legislature.

I worked in DEP Office of Legislation for 4 years, and can assure you that when a DEP Commissioner states a position in writing on a bill, he is always backed up  by the Governor. Always.

Summarizing: no FSC certification; no public oversight; no regulations to constrain DEP – this equals total DEP discretion exercised behind closed doors.

All this is the exact opposite of what Elliott Ruga is telling the public.

Point #2 – this is highly misleading:

What’s wrong with the bill, says Pringle, is that there’s no enforcement component. But Rouga says that’s not true.

“There is enforcement. Forest stewardship plans are essentially contracts written by DEP and if you don’t follow it, you don’t get paid,” Rouga said.

Contracts can be enforced, that much is true.

But withholding payment on a contract is NOT DEP enforcement.

And there are deep legal and philosophical differences: corporations define relationships with consumers and other corporations via contracts. In contrast, governments define relationship with citizens through law.

DEP is not a corporation – at least not yet.

It is highly misleading to equate DEP contract administration with DEP enforcement.

There are not only huge legal distinctions, but there are very significant distinctions in actual implementation in a bureaucracy.

Payment withholding is a weak tool, compared with enforcement authority. It can not prevent, deter, compel corrective action, or punish wrongdoing the way enforcement can.

And there are huge bureaucratic impediments to implementing any kind of program based on leverage derived from withholding contract payments.

And I say this as someone who has supervised the administration of over $200 million in hundreds of contracts at DEP on a day to day basis over a 3 year period.

As someone who tried – and failed – to inject environmental performance requirements into contracts.

As someone who tried – and failed – to get DEP contract administration and Department of Treasury staff and the Attorney General’s Office on board with that kind of approach.

Elliott Ruga simply does not know what the fuck he is talking about.

But there are even larger problems with the concept of the bill, that are perhaps best illustrated by an analogy.

Everyone knows that the word “Kosher” refers to a food certification system:

Kosher standards are developed pursuant to Jewish law, by a private Jewish institution, in accordance with Jewish culture, tradition, and beliefs. Kosher is enforced and overseen by Jewish law.

In contrast, the US Department of Agriculture (USDA) also has a food certification system.

USDA standards are developed pursuant to US laws passed by Congress, overseen by a government agency staffed by public employees, based on science, and promulgated pursuant to open and transparent public rule making procedures. USDA standards are enforced and overseen by public employees, subject to oversight by Congress, the Courts, the public, and the media.

There are fundamental differences between Kosher and USDA standards and food certification systems.

Applying the analogy, for purposes of forest management, Kosher is analogous to the Forest Stewardship Council (FSC) and USDA to NJ DEP regulations.

The take away lesson is this:

I can not go to a public hearing and try to convince the Rabbi’s to adopt or change a Kosher standard based on scientific evidence, and neither can you.

[I can’t oppose or to try to change the fact that FSC standards allow herbicide treatments – in water supply watersheds too – and bridges, roads and logging in Category One stream buffers and on steep slopes, or logging for “renewable” biomass fuel production, either.]

It’s take it or leave it.

Same thing for FSC standards.

In contrast, I CAN go to a public hearing and try to persuade DEP to adopt of change a forestry standard.

And therein lies the rub.

But, even if you have no problem with these fundamental distinctions between private and public forest certification systems, there still remains a fundamental problem.

Lets go back to our Kosher analogy.

Suppose the USDA Commissioner correctly said “USDA is in charge of US food standards. We respect but do not subject our standards or otherwise abide by Kosher standards”.

That would make the relationship between Kosher and USDA standards abundantly clear.

No one could credibly then argue that Kosher standards would apply to all foods sold in the US.

Well, we have exactly that same abundant clarity with respect to FSC and NJ DEP.

The DEP has spoken and rejected  FSC standards.

So, why the hell is Eliott Ruga of the Highlands Coalition lying to the public that FSC standards and FSC certification will protect NJ’s forests?

I actually felt that some of my prior posts had been a little harsh in singling out Elliott Ruga of the Highlands Coalition, but I no longer feel that was, because Elliot is now knowingly misrepresenting the facts, and the facts are very simple and very clear.

So, let me repeat them – using Elliott’s own words, in his June 10 testimony:

We have a Natural Heritage Committee …comprised of some of the most preeminent wildlife biologists, naturalists, forest ecologists in the state … and they debated this bill for over a year. And what they came up with is a position paper. What it required to support this bill was really one thing: and that is that a forest stewardship plan for State owned land be certified by the independent Forest Stewardship Council. ~~~  Testimony of Eliott Ruga, Highlands Coalition, to the Assembly Ag. & Natural Resources Cmte. 6/10/13 (listen)

1. The “Forest Stewardship bill was a political compromise.

The Highlands Coalition (and other conservation groups) only agreed to support the bill because inclusion of the Forest Stewardship Council certification. 

Conservation groups testified that FSC would provide an essential safeguard and so so in 3 specific ways:

a) by FSC forest management standards

b) by FSC oversight and certification of DEP forest management plans to assure that they met FSC standards; and

c) by FSC field audits of actual forestry operations to assure that they meet FSC standards.

The FSC was perceived as an essential safeguard for 2 reasons:

a) because conservation groups did not trust DEP’s forest management program, but did trust FSC’s program.  Conservationists felt that independent FSC oversight would keep any feared DEP abuses under control; and

b) because DEP lacked forest management regulations and FSC standards were considered protective safeguards that could serve in lieu of DEP regulations.

Well, that political compromise is no longer in effect. Which takes us too my second point:

2. DEP rejected FSC certification.

Lets repeat that: DEP rejected FSC certification – and in writing to the Legislature.

I worked in DEP Office of Legislation for 4 years, and can assure you that when a DEP Commissioner states a position in writing on a bill, he is always backed up  by the Governor.

The Gov. will – at a minimum – CV the FSC certification provisions.

So, Elliott, please STFU!