WolfeNotes.com

How Far Can A Legislator Go To Intervene In Independent Regulatory Agency Decisions Before Violating Prohibitions On An Appearance Before A State Agency?

Decision Could Bar Stealth Corporate Interests From Asserting Political Pressure on Agencies

Fiocchi Letter To Editor Obfuscates and Smears Legitimate Critics of His Abuse of Power

[Update below]

The Joint Legislative Committee on Ethical Standards currently is reviewing an ethics complaint against 1st Legislative District (Cape May – Cumberland) Assemblyman Samuel L. Fiocchi filed by several south jersey residents (see:

• Legislative Ethics Panel Will Investigate Complaint Against Assemblyman Fiocchi for Intervention In Pinelands Commission’s Pipeline Review

The Committee just wrapped up a 10 day fact finding period on November 28.

The Committee’s investigation and review process is not fully transparent. Their policy & procedure provides a degree of confidentiality to the Legislator to rebut charges unilaterally and without public disclosure or the opportunity for the complainants to respond.

By letter of November 24, 2014, the Committee staff denied a request by complainants for Fiocchi’s replies, because this confidentiality assures due process without the matter “being tried in the press”.

So, needless to say, I was astounded by Fiocchi’s attempt to do just that in his Nov. 28 Letter to the Editor of the Press Of Atlantic City, in which he obfuscates the real issues at play and in the process attacks his critics while ironically confirming their very arguments.

Fiocchi smeared the citizens as “special interests”, while urging the Pinelands Commission to violate the law by basing its decisions on jobs and energy production, factors that they are not authorized to consider.

There are large principles at stake.

If anyone’s not paying attention, let me just remind them that we are on the verge of losing – if we haven’t already lost – our democracy, which has been purchased and corrupted by corporate money (see:  Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism

Wolin portrays a country where citizens are politically uninterested and submissive–and where elites are eager to keep them that way. At best the nation has become a “managed democracy” where the public is shepherded, not sovereign. At worst it is a place where corporate power no longer answers to state controls. Wolin makes clear that today’s America is in no way morally or politically comparable to totalitarian states like Nazi Germany, yet he warns that unchecked economic power risks verging on total power and has its own unnerving pathologies. Wolin examines the myths and myth-making that justify today’s politics, the quest for an ever-expanding economy, and the perverse attractions of an endless war on terror. He argues passionately that democracy’s best hope lies in citizens themselves learning anew to exercise power at the local level.

In my view, contrary to that of Assemblyman Fiocchi, citizens seeking to enforce the Constitutional separation of powers, preserve the integrity of independent regulatory bodies, uphold the rule of law, limit corporate power, and hold an elected official accountable can not be smeared as “special interests”.

Those citizens are noble and trying to save our democracy from corrupt corporate power.

So, let’s take a look at the issues at play, which I am surprised have not gotten more attention from the legal community and good government types seeking to reduce the role of money and corporate power in our democracy.

[*This excellent Report on California independent agencies and Commissions frames some of the administrative and legal issues:

The implications of this complaint raise fundamental issues.

• Separation of Powers

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, selfappointed, 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.

In practice, there are no bright line separating those powers, and in practice they become “blended powers”.

But that reality does not mean that no lines exist and that independence and integrity and rule of law are not key principles that still operate.

In our case, the Legislature enacted the Pinelands Protection Act in 1979.  The Act created the Pinelands Commission as an independent regulatory body, with quasi-judical powers.

The Act delegated certain powers to the Commission, but limited those powers and narrowed the Commission’s discretion by specifying purposes, goals, objectives, and standards upon which the Commission may act, and by requiring that the Commission publicly adopt a Comprehensive Management Plan upon which they are required to base case-by-case decisions, like the South Jersey Gas pipeline application.

The Act does not, as Assemblyman Fiocchi asserts, authorize the Pinelands Commission to create jobs or promote energy:

good-paying jobs and economic development. In addition, the pipeline will provide a safe and clean energy source for more than 100,000 residents in the southern part of the state.

Fiochi is a member of the Assembly Regulatory Oversight Committee.  That Committee would be the proper forum for him to exercise his legislative powers and express his concerns about the Pinelands Commission’s review.

It is NOT appropriate for Fiocchi to be abusing those powers by lobbying – i.e. attempting “to influence government process” – the Pinelands Commission during the pendency of a matter before both the Commission and the Courts (i.e. SJG has filed a legal appeal and the case is before the Appellate Division and could be remanded back to the Commission at any time).

By way of analogy, we all would agree that it would be improper for Fiocchi to contact a judge or member of a jury or even a prosecutor on behalf of a defendant during a criminal trial. Judicial independence and separation of powers would be undermined.

The Pinelands Commission is no different in this regard.

In a move to enforce the separation of powers doctrine and prevent this kind of abuse of power, the NJ Legislature, among other things, passed an ethics law which flat out prohibits Legislators from representing private corporations before State Agencies.

The Committee must determine if the Assemblyman’s actions constituted a prohibited “representation” or “appearance” – on behalf of South Jersey Gas or Rockland Capital or even a labor Union – before the Pinelands Commission regarding the pipeline application, a matter that was “pending before a State agency“.

We think Fiocchi violated this prohibition. His letter to the Pinelands Commission, which names South Jersey Gas and Rockland Capital (owner of BL England plant),  is effectively a form of “representation” of their interests and constitutes a prohibited “appearance” before the Pinelands Commission, a State Agency.

We are not idling & hypothetically speculating with respect to this concern.

I can speak from personal experience that Legislators in NJ have been known to abuse their powers by intervening in regulatory matters before State agencies. I spent 13 years at DEP, including several years at the Office of Legislative and Inter-Governmental Affairs which dealt with legislative inquiries, and saw this many times.

In fact, there were recent criminal indictments for doing just that at DEP regulatory approvals – tis is the context, remember this:

TRENTON—Former New Jersey Assemblyman Daniel M. Van Pelt was indicted today in connection with Van Pelt’s acceptance of a corrupt $10,000 cash payment made in exchange for Van Pelt’s official assistance on real estate development matters before the State of New Jersey and Ocean Township, U.S. Attorney Paul J. Fishman announced.

The Indictment charges that Van Pelt, while a member of the New Jersey General Assembly and its Committee on the Environment and Solid Waste, accepted $10,000 in cash from a government cooperating witness (CW), in exchange for the promise of helping the CW obtain development approvals from New Jersey’s Department of Environmental Protection, among other things.

While the complainants are not alleging criminal wrongdoing, a Legislator need not take a bribe to step over the lines under NJ ethics laws.

Those laws are based on an “appearance” standard.

• Due Process & the Independence of Quasi-Judicial Regulatory Bodies

The Pinelands Commission is an independent regulatory agency in the Exectuive Branch. The Legislature delegated rule making and quasi-judicial  powers to the Commission.

The Commission’s rule making powers are expressed in the Comprehensive Management Plan, while individual applications for development approvals like the South Jersey Gas pipeline are reviewed and decided as quasi-judicial matters.

Fiocchi’s heavy handed attempt to use his legislative office to pressure the Commission to consider what are know as “ultra vires” (beyond the law) factors like jobs and economic development was totally violative of the independence of the Pinelands Commission. Fiocchi did so in a “ex parte” fashion, another no-no.

* Background: Ex parte communications between interested parties and agency decisionmakers have long been controversial because they raise the possibility, or at least the appearance, of undue influence and parallel nonpublic dockets in administrative decisionmaking. In informal rulemaking conducted under Section 553 of the Administrative Procedure Act (APA), however, ex parte communications are permitted so long as agencies act to preserve transparency, ensure due process of law, and develop an administrative record adequate for judicial review.

• Prohibition on Representing Corporations Before State Agencies

The law prohibits legislators from representing private for profit interests before State agencies.

Fiocchi names South Jersey Gas and Rockland Capital (owner of BL England plant) in his letter to the Commission.

That letter constitutes a form of prohibited representation.

• Inverted Democracy and Abuse of Power

The model of representative democracy we learned in school has the citizen as sovereign and the legislator as his representative.

Legislators are supposed to listen to the concerns of their constituents and act as their advocates in Trenton, in the Legislature.

Fiocchi stood that relationship on its head, and used his power to manufacture a faux grassroots citizens campaign on behalf of powerful corporate interests.

That is an abuse of power and unethical.

• Ethics – The Appearance Standard

No further discussion required – we think this stinks out loud.

• Finding of Probable Cause to Conduct a Full Investigation

At their prior meeting, the Committee rejected staff’s finding that no probable cause exists to justify further investigation and his recommendation that the complaint be dismissed.

At this point in time, the Committee is finding facts necessary to determine if probable caused exists of an ethics violation in order to justify an in depth investigation.

We think we’ve more than met the probable cause standard in our complaint and followup communications.

We will keep you posted on the next steps.

* denotes updated material

[Update: 12/7/14 – NY Times has a superb investigative story on energy industry corruption of State governments, see: Energy Firms in Secretive Alliance With Attorneys General

This is exactly what we are accusing Fiocchi of doing – and there’s even a letter to EPA use as an example:  

“When you use a public office, pretty shamelessly, to vouch for a private party with substantial financial interest without the disclosure of the true authorship, that is a dangerous practice,” said David B. Frohnmayer, a Republican who served a decade as attorney general in Oregon. “The puppeteer behind the stage is pulling strings, and you can’t see. I don’t like that. And when it is exposed, it makes you feel used.”  ~~  end update]

People & Messages From The People’s Climate March

“No Justice – No Peace”

I was stunned by this historical echo:

We also know that St. Louis, Missouri, was the city where the Dred Scott case was litigated in 1857. That case, you may recall, the United States Supreme Court suggested that black people had no rights that white people were bound to respect, and certainly that was the verdict, if you like, coming out of this grand jury.(emphasis mine) ~~~ GERALD HORNE, CHAIR, HIST. AND AFR. AMER. STUDIES, UNIV. OF HOUSTON

I have no idea how intolerable that fact is to black people in America – none whatsoever.

If it can drive me to rage just reading it, I can’t begin to imagine what living that reality must mean to a black man.

What happens to a dream deferred?Does it dry up
like a raisin in the sun?
Or fester like a sore–
And then run?
Does it stink like rotten meat?
Or crust and sugar over–
like a syrupy sweet?Maybe it just sags
like a heavy load.Or does it explode?

(A Dream Deferred by Langston Hughes)

And in the midst of this injustice, the best the Nobel Peace Prize winner can do is give out medals?

The Supreme Court’s Dred Scott case – which led to the civil war – was decided 100 years before I was born.

I had hoped that my life would be shaped more by the 1954 Brown v. Board of Education decision – and I was alive for much of the civil rights movement.

[*But this is the State I live in: NJ’s Apartheid and Intensely Segregated Urban Schools]

A few years back, I decided to go south and try to trace some of that history.

Gave me the creeps –

But Ferguson is not a vestige of the deep south – it is everywhere in the US today.

Nowhere for people of good faith to hide – gotta call this out for the racist outrage that it is – “by any and all means necessary”

Another Arrogant Abuse of Power on Pinelands Pipeline

The Pinelands deserve a Commissioner who would be a champion and advocate for the Pinelands, not just show up and vote as he’s told. ~~~ Carlton Montgomery, Executive Director,  Pinelands Preservation Alliance

[Update: see the Burlington County Times story]

In a remarkably sham move, today, at a special 11 am meeting the day before Thanksgiving (in the midst of a strong Nor’easter to boot), the Burlington County Freeholders rammed through a vote to re-appoint Pinelands Commissioner Sean Earlen (his “qualifications” are pretty clearly depicted here).

The Freeholders now join a long and growing list of corrupt decisions and victims of Gov. Christie’s strong armed tactics and dirty politics to force the Pinelands Commission to approve the South Jersey Gas pipeline.

[* Doug O’Malley of Environment NJ noted the irony that today was the 1 year anniversary of the Pinelands Commission’s public notice, an obvious attempt to minimize public review of the proposed MOA.]

It is clear that the Earlen appointment was political payback for the Senate Judiciary Committee’s recent refusal to approve Gov. Christie’s candidates for the Commission.

I spoke with the Freeholders’ public information officer at length yesterday to try to explain the context and the significance of this appointment and request that the matter be removed from the agenda or tabled. He specifically mentioned that he and other Freeholders found the Senate’s actions to reject the Gov.’s candidates “reprehensible” (see this Star Ledger editorial that explains all that:

• Gov. Christie earned the Pinelands pipeline defeat

The Pinelands Commission deadlocked 7-7 in a January 10, 2014 vote that would have allowed the pipeline to proceed, despite the fact that it is inconsistent with the Pinelands Comprehensive Management Plan (CMP).

Because that vote was on a proposed Memorandum of Agreement (MOA) to mitigate the conflict with the CMP, technically,  the SJG application has not been defeated or withdrawn and still remains before the Commission.

Additionally, South Jersey Gas appealed the Commission’s vote, thus the matter is before the Courts as well, who could remand the matter to the Commission for reconsideration.

So, the Freeholders’ nominee could determine the outcome of the controversial pipeline.

With the retaliatory replacement of Cumberland County’s representative, who opposed the pipeline – and Ocean County’s grossly disrespectful appointment of a reliable Christie yes man – the Gov. now has at least an 8-6 majority to approve the pipeline, should the Courts or SJG find a way to bring the matter back for another vote (which I think is in the works).

Earlen previously voted in favor of the pipeline, a vote some residents said should disqualify M. Earlen from re-appointment. In response to that, again showing political loyalty to Gov. Christie instead of his duties, Freeholder Donnelly complained about what he saw as a double standard – he chastised those who “praised Pinelands Commissioners who bucked the system and took on the Governor”, and ague that Earlen should be disqualified.

I spoke to Donnelly after the meeting about this comment, because I too said Earlen should be disqualified for re-appointment. I explained the fact that the pipeline was inconsistent with the CMP, so voting for the MOA to sidestep that inconsistency failed the test of leadership and “Pinelands Champion”. He knew all about the issue, calling the MOA “like a variance” and went on to basically confirm all my suspicions that this decision was political and not based on the merits.

[* Donnelly had no qualms telling me to my face that – I quote – “you know” that providing an opportunity for the public to participate would allow “your groups to organize 700 people to pack a public hearing”  – such is the state of democracy in Burlington County.]

• The Process Stinks

The Freeholders agenda for today’s meeting was released on monday. It merely listed a “nominee” for the Pinelands Commission, but did not name that individual or indicate whether the nominee would be voted on and formally selected.

The Freeholders nominated and “selected”, i.e. voted to appoint, Earlen on the same day, despite strong public objections to the secretive process and lack of meaningful public notice

The public’s concerns about the lack of transparency and ability to participate were shared by Freeholders Belgard and Schwartz.

Belgard said she found out about the Nomination on Monday, but did not even know the name of the nominee, or that it would be Mr. Earlen, until she walked into the hearing room on Wednesday.

Freeholders Belgard and Schwartz twice offered Resolutions to table the nomination. Twice they lost 3-2 votes.

Belgard said she requested the name and resume of the nominee when she received the meeting agenda on Monday, but that information was not provided.

Several Burlington County residents objected to the fact that the Pinelands Nominee was not even named on the agenda, making it impossible to provide informed comments on his/her qualifications for this critical position.

Carleton Montgomery of the Pinelands Preservation Alliance noted that Mr. Earle was not a champion for the Pinelands and implored the Freeholders to appoint a champion who would advocate for the Pinelands “not just show up and vote as he’s told”.

Instead of responding to the public’s legitimate and well argued concerns, the Freeholders bickered like little children.

It was embarrassing.

After the vote, I told them they should be ashamed of themselves.

So, have a Happy Thanksgiving folks – and I hope you can find some time to get outside with your family.

DEP issues “minor modification” of oil terminal air permit without public review

DEP denies jurisdiction to review climate impacts

It’s The Climate, Stupid!

Scott Fallon at the Bergen Record has a very important story today on an outrageous move by the Christie NJ DEP to issue an air pollution permit that would allow the Buckeye oil terminal in Perth Amboy NJ to double its oil processing capacity, read the whole thing:

• More oil to travel on N.J. railroads

Unfortunately, Fallon, in a series of stories, has narrowly and poorly framed this issue as limited to rail transport safety.

As a result, he again shoehorns this broader story into that frame and thereby misses the far more important climate issue and DEP regulatory policy issues.

The narrow framing as a rail safety issue also allows DEP to deny jurisdiction.

This is stunning, because the DEP permit in question is an air pollution control permit.

Obviously, air pollution does not end “at the fence line” nor does NJ DEP’s jurisdiction.

Second, as Fallon notes, the DEP chose to define the Buckeye oil terminal air permit as a “minor modification” under NJ DEP rules.

But Fallon fails to note that DEP could have classified the permit as a modification that triggers public notice, comment and hearing procedures.

Additionally, US EPA, which has independent authority under the Clean Air Act and oversees the NJ DEP air pollution permit program could pressure NJ DEP to conduct public hearings on the proposed permit expansion or even decide to conduct their own public hearings.

So, by not objecting to the DEP’s “minor modification” classification of this permit, or invoking EPA’s own authority to review the permit, the US EPA is complicit in the decision.

In contrast to the Christie NJ DEP’s negligence, Fallon notes that environmental regulators in New York DEC have used the environmental permit process to review a similar operation in NY, while the Christie NJ DEP is in full denial mode. Fallon reports:

A spokesman for the DEP said the agency’s focus is on regulating only the plant and not the environmental risks associated with transporting hazardous materials like oil through the state. DEP officials say they lack the power to regulate beyond Buckeye’s property.

“Our authority begins and ends at the fence line,” said Larry Hajna, an agency spokesman. “We regulate emissions and have requirements for how materials are handled, stored or discharged, but we cannot limit how much is processed or how much is transported.”

One would think that Fallon would be curious about what legal authority NY DEC has that the Christie DEP says they don’t have.

First of  all, under current NJ DEP air pollution control regulations, greenhouse gases are defined as “air contaminants”, i.e. regulated air pollutants. See Gov. Christie’s own website:

Carbon Dioxide Classified as a Pollutant

In November 2005, the DEP adopted a new regulation under the authority of New Jersey’s Air Pollution Control Act to classify CO2 as an air contaminant. This rule enables NJ to implement its responsibilities under RGGI and to enact additional rules to control CO2 from other sectors as necessary.

The DEP could invoke that regulatory authority to review the lifecycle and cumulative climate change impacts of the huge expansion of oil terminal capacity.

This DEP air permit decision has nothing to do with a lack of jurisdiction for off site rail transportation risks.

Second, I do not know what regulatory authority NY DEC has invoked.

I do know that NY has a broader “mini-NEPA” law than NJ, known as “SEQRA”, that requires environmental impacts statements as part of the permit process.

NY DEC could have relied on SEQRA.

But, regardless of that, for air pollution control permitting, I am certain that NY DEC has at least the same basic permit program regulatory authority under their State Clean Air Act permit program as NJ does.

However, in addition to that authority, on September 22, 2014, New York Governor Andrew Cuomo signed into law the “Community Risk and Resiliency Act”, which amends several provisions of the Environmental Conservation Law (ECL) to incorporate consideration of potential climate change impacts, including physical risks due to sea level rise, storm surges and/or flooding, when evaluating projects under a number of existing permit programs. 

The NJ Legislature has not even considered a similar law to put teeth in NJ’s Global Warming Response Act.

And for some reason, NJ’s vast array of environmental groups are not even trying to get that kind of law passed in NJ.

Now why is that?

They found over $700,000 to fund a PR campaign to steal money from DEP environmental programs.

Why No money or campaign for climate?

Good questions for followup coverage by the Record and advocacy efforts for NJ environmentalists to consider.