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Assembly Resolution Not Posted For Vote on Thursday’s Final Session

If not posted for vote, Resolution dies & Veto effort must start anew in 2016

The Assembly version of the Resolution (ACR 249) to veto the Christie DEP’s proposed Flood Hazard rule rollbacks has not been posted for a vote on Thursday’s final session.

The Resolution was approved by the Assembly Environment Committee a month ago and has stalled.

The Senate version (SCR 180) was introduced, approved by Committee, and passed the full Senate in a just 3 days, so we had expected there was a political consensus and a sense of urgency by the Democrats to block the Christie DEP’s proposed rollbacks.

In fact, we had hoped that the veto of the Flood Hazard rules would send a message to the Christie DEP and set the stage for an even more important veto of the Christie DEP’s “overhaul” of the Water Quality Management Planning rules.

DEP Commissioner Bob Martin has announced to the business community that he has plans to “overhaul” all the DEP land use regulations, so the freshwater wetlands rules and Highlands rules are next on the chopping block.

The legal, regulatory, and policy issues were vetted extensively by hours of testimony to the Senate Environment Committee and I’ve written about them here at length, so we won’t repeat that exercise.

The main points are that the proposed rules would weaken current flood and water quality protections, and are opposed not only by the entire NJ environmental community, but by regulators at US EPA and FEMA.

US EPA has written that the proposal would violate the federal Clean Water Act and adoption of the rules could jeopardize millions of dollars in federal EPA funds or trigger EPA revocation of NJ’s delegation to implement the Clean Water Act.

FEMA has written that the proposal does not comply with FEMA regulations and is inconsistent with National Flood Insurance Program requirements and could jeopardize eligibility for federal flood insurance and receipt of disaster recovery funds. The NJ League of Municipalities opposed the proposal for those same reasons.

Politically, the proposal would repeal the Category One (C1) 300 foot stream buffer protections, which were a major part of Governor McGreevey’s clean water legacy.

The legal and policy basis for the C1 buffers, i.e. antidegradation, later became the basis for McGreevey’s other legacy, the Highlands Act.

Please call Assembly Speaker Prieto’s Office (201) 770-1303 and ask that the Speaker post ACR 249 for thursday’s session.

If he fails to do so, we must start all over again in next legislative session in 2016.

Where I’m At On Climate

[Update: 12/1/21 – I am not alone. Even Supreme Court Justice Sotomayor deployed the “stench” metaphor (oral argument at page 15):

Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

Update: 11/14/21 – Chris Hedges’ talk American Sadism explains exactly what I was driving at in his discussion of Conrad – listen to the whole thing, but the Conrad analysis starts just after minute 20. End update]

Update: 4/26/20 – A fine writer at The Atlantic just used a similar metaphor of stench:

Invasion and occupation expose a society’s fault lines, exaggerating what goes unnoticed or accepted in peacetime, clarifying essential truths, raising the smell of buried rot. ~~~ end updates]

I spent a sweltering Saturday afternoon – December 12th! – on the porch reading Conrad’s classic “Heart of Darkness”.

It’s a timely read, given our various current crises of a collapsing Empire – from ISIS, to the rise of an outright Fascist anti-Muslim and anti-immigrant politics, and climate chaos and collapse in Paris (including the police state tactics, which included pre-emptive arrests of activists and banning of protests, marches and demonstrations. So much for that French commitment to “liberte'”)

While the deranged and murderous Kurtz and his infamous dying gasp “the horror!, the horror!” tend to define the perception of that book, I was particularly struck by a passage in the voice of Marlow, and a different metaphor: to breath dead hippo.

(During his trip upriver, Marlow experiences the putrid sickening odor of the decaying flesh of dead hippo – the rotting meat relied on by his native enslaved crew, who happen to be cannibals.)

The passage that hit a nerve comes as Marlow is heading upriver, into the heart of darkness, in search of Kurtz’s compound.

Narrator Marlow speculates about what Kurtz must have experienced and imagines his likely madness. He reflects on the various aspects of darkness and solitude he himself is immersed in as he heads into the heart of darkness.

Metaphorically speaking to his readers, involved in daily life back in European civilization, Marlow asks:

You can’t understand. How could you? – with solid pavement under your feet, surrounded by kind neighbors ready to cheer you or to fall on you, stepping delicately between the butcher and the policeman, in the holy terror of scandal and gallows and lunatic asylums -how can you imagine what particular region of the first ages a man’s untrammeled feet may take him into by the way of solitude – utter solitude without a policeman – by the way of silence – utter silence, where no warning voice of a kind neighbor can be heard whispering of public opinion? These little things make all the great difference. When they are gone you must fall back upon your own innate strength, upon your own capacity for faithfulness. …

After noting that there are two extreme types of people: at one end of the spectrum, “fools” too dull to know that they are being “assaulted by the powers of darkness” and at the other “exalted creatures” that are “altogether deaf and blind to anything but heavenly sights and sounds“.

Marlow surmises that most of  us are somewhere in between the blind fools and the exalted ones:

The earth for us is a place to live in, where we must put up with sights, with sounds, with smells, too, by Jove! – breathe dead hippos so to speak, and not be contaminated. And there don’t you see? your strength comes in, the faith in your ability for the digging of unostentatious holes to bury the stuff in – your power of devotion, not to yourself, but to an obscure, backbreaking business.

Well, I’ve about lost patience – or strength – to dig the holes to bury all the dead hippo I’ve been smelling lately. I’ve got no more devotion to that backbreaking business.

I’ve been smelling the rotting flesh of a dying Empire (consider this and this,  * and especially this for starters)

Chris Hedges’ captures my spirit in his column today: 

It would have been far, far better for the thousands of activists who descended on Paris for the climate summit to instead go to a sacrifice zone such as Parras’ neighborhood and, in waves of 50 or 100, day after day, block the rail lines and service roads to shut down refineries before being taken to jail. That is the only form of mass mobilization with any chance of success.

[…]

The 21 international climate summits that have been held over the decades have produced nothing but empty rhetoric, false promises and rising carbon emissions. Paris was no different. We must physically obstruct the extraction, transportation and refining of fossil fuels or face extinction. Those who worship before the idols of profit will use every tool at their disposal, including violence, to crush us. This is a war waged between the forces of life and the forces of death. It is a war that requires us, in every way possible, to deny to these industries the profits used to justify gaiacide. It is a war we must not lose.

Sign me up.

The holes to bury the dead hippo are all filled up. And my back is broken from digging those holes.

Once again, official documents conflict with Executive Director’s comments

Once again, Wittenberg tries to manipulate Commission policy instead of following it

Every time I plant a seed,
He said “kill it before it grow”,
He said “kill them before they grow”. ~~~ I Shot The Sheriff (Bob Marley)

I’m just here to caution that the reason that we prioritize is because of resource limitations. … we’re not necessarily ready to abandon anything else that we’re so close to finishing. ~~~ Executive Director Wittenberg

In response to many months of pressure and demands by the public and climate activists, at the November 13, 2015 meeting of the Pinelands Commission, Chairman Lohbauer finally directed staff to prepare briefing materials on climate change issues – we wrote about that here:

• Pinelands Commission Will Begin Consideration of Climate Change & Energy Policy

On November 18, 2015, State Climatologist Robinson briefed the Commission staff and the public on climate change issues as part of the Commission’s science program series, see:

• Exploring NJ Climate Variability and Change

The Commission’s Science Program is provided prominent and priority attention in the Commission’s accomplishments, right up front on page 3 (before even the issue of land preservation!) as noted in the 2014 Plan Review Report:

So, it was obvious that momentum was building and the Commission would have to address climate change in some fashion.

So, what did Commission Executive Director Wittenberg – who has done so much to promote, expedite, and rubber stamp fossil fuel pipelines – do at the next regularly  scheduled December 11, 2015 Commission meeting with respect to the Chairman’s request for a staff briefing on climate??

Wittenberg tried to derail the Commission’s consideration of climate change  – read and listen to her words carefully (watch, at time 23;33):

At the last Commission meeting, Commissioner Lloyd raised the issue of climate change and you [Chairman Lohbauer] said we were going to talk about it in December at P&I [Planning and Implementation Committee]. There is no December P&I, so we’re going to do it in January.

But, as staff is sort of thinking about it and getting ready for that meeting, I just wanted to remind all of us that an enormous piece of work that we did not long ago in Plan Review.

The Plan Review Report, which was issued in September 2014, identifies our work plan going forward for the next 10 years. 

We included in that work plan climate change.

We then prioritized some issues and decided as a group that were going to focus on certain things [unintelligible] that we are going to work on – PDC’s; Kirkwood-Cohansey; Medford-Evesham; off road vehicles – and we are doing that work as we report regularly and are very diligent about it.

So, as those things start to wind down, we move down the list.

So, it [climate change] is there. There’s not much meat on the bones [unintelligible] as we assess the issue and identify what we can do. 

So we can start that at P&I. I’m just here to caution that the reason that we prioritize is because of resource limitations. 

[Chairman Lohbauer interjects] “Understood”

So, as much as we’re ready to start thinking about it we’re not necessarily ready to abandon anything else that we’re so close to finishing.

Wittenberg’s comments sure sounded like Wittenberg was trying to sandbag the climate change issue: i.e. there are other priorities; a lack of resources; a 10 year planning horizon.

[*Those other 8 key priorities in the work plan that trump climate change include such vital earth shaking issues as “administrative efficiency”, outdoor billboards, and MOA reforms. Wow!]

Before the climate issue is even engaged, she is pitting climate change issue against other important issues and trying to drive a divisive wedge between the groups that work on them – exactly consistent with her boss, Gov. Christie’s “climate change is no crisis” perspective – which is just what the gas and pipeline corporations want.

So, I went and read the CMP Plan Review Report and the alleged 10 year agenda that Wittenberg cited in her comments, see:

For regular readers of this blog, I’m sure I don’t have to tell you that the documents again show that Wittenberg is a manipulator with loyalty first and foremost to Governor Christie.

First of all, the Climate change issue is NOT “in there”, if by the common meaning of that term that the climate issue was included in the body of the report and included as a recommended activity of the Commission and work plan item (staff recommendations are found on pages 156 – 164, and climate change is not one of them).

The climate issue was not an issue initiated by staff or included in the body of the report or the work plan, other than vaguely and only in response to public comments. It is misleading to claim “it’s in there”, even if Wittenberg correctly qualified that by saying there’s “not much meat on the bones”.

Second, the timeframe of the work plan recommendations is 5 years, not 10 years as Wittenberg stated:

Commission staff will use the Committee’s discussions and completed list of recommendations as guidance in developing its work program for the next five years. (@ page 156)

Why would Wittenberg exaggerate the timeframe?

In order to dampen expectations for action (I suggested a 6 month process in my fake press release)

The climate change issue is only mentioned once on page 165, at the very end of the document, which summarizes public comments – buried would be putting it kindly.

Here is the complete text on the climate issue, and it is only included in response to public comments, not by Commission staff:

“The following list identifies the broad range of topics raised by Commissioners, the public and Commission staff and discussed at length during Plan Review Committee meetings from 2012 through 2014.

[1. – 3. ]

4. Public comment:

• The CMP should include a standard to address greenhouse gas emissions
• Develop rules and strategies to reduce contributions to climate change and adapt to climate change impacts

The Commission will evaluate what options are available to address climate change through the CMP and in cooperation with other agencies. 

Once again, we find the Executive Director misleading the public and manipulating the Commission.

Once again, Wittenberg has directly undermined Chairman Lohbauer – this time his request to initiate staff work on climate change.

She has said other issues are higher priorities and there are not sufficient resources.

That sure sounds like making policy to me, not following the policy direction of her boss, Chairman Lohbauer.

But, oops, I forgot: Wittenberg reports to Governor Christie, not the Pinelands Commission.

[End Note: Here’s another subtle and sly example of Wittenberg’s manipulation.

During public comment of the December 11 Commission meeting, I criticized Wittenberg for failure to include the State Climatologist’s presentation in her monthly management Report to the Commission. In my view, it was a significant and timely event.

Wittenberg’s response was that the State Climatologist’s presentation was just part of a routine science series and not worth discussion.

Ironically, the Plan Review Report Wittenberg cited to sandbag the climate issue also highlights the importance of the Commission’s Science program as developing the basis for CMP amendments!

Can’t have it both ways: either the science series is some esoteric routine not worthy of mention, or the Science program is vitally important to developing the technical basis for CMP amendments. If it’s the latter, then surely the State Climatologist’s presentation was important enough to mention to the Commission in a management Report, particularly in light of Chairman Lohbauer’s prior November direction on climate.

Regardless of any of this, the State Climatologist has sufficient stature for Wittenberg to brief the Commission on his work – and obviously, the climate issue warrants her and the Commission’s attention.

By failing to even mention it in a monthly management Report, Wittenberg snubbed the State Climatologist, Chairman Lohbauer, and the science.  ~~~ end]

Republican Legislators & the press challenged Whitman – But roll over for Christie

A friend just asked me a question about the history of the Burlington County Rutgers Eco-Complex, which, of course – like a red flag in front of a bull – got me all fired up reflecting on the Whitman days.

Here was my reply about that:

The Eco-Complex was created by former Burlington County Mayor, Assemblyman and Whitman DEP Commissioner Bob Shinn (the man who forced me out of DEP as a whistleblower).

Shinn financed the project ($5million?) with money restored by the Legislature to DEP’s budget in response to Gov. Whitman’s cuts (I think it was $17 million restored). I worked hard to get the cuts restored when I was with NJEF and Sierra Club and we formed a coalition of the entire NJ environmental community to do this.

But Gov. Whitman rejected the restoration of her cuts, refused to spend it at DEP, and impounded it under her Executive powers. Shinn used $5 million of the impounded money to fund the Eco-Complex.

This intransigence led to the Constitutional amendment (bypassing Whitman) to dedicate the 4% of the Corporate Business Tax (CBT) to specific DEP programs.

The ugly history of that place has not been overcome –  very few real accomplishments to show for it.

A key significant difference between the Whitman era then and the Christie neglect now is the roll of the press.

At least during Whitman’s savage policy, we had an honest and courageous press corps – e.g. the Bergen Record won a journalistic prize for their investigative series on Whitman’s environmental policy – The Record was praised for opening “a new genre in environmental reporting“.

Using Whitman’s own slogan, The Record’s investigative series was titled: Open For Business:

And check out this prescient story from The Nation – had we been listened to on Whitman, perhaps there would be a lot more firemen and 9/11 emergency responders still alive.

As The Nation so powerfully wrote about Whitman:

“Thanks to Whitman’s evisceration of state enviro regs as well as a raft of subsidies and tax cuts to developers, suburban sprawl gobbled up more open space and verdant land during her tenure than at any other period in New Jersey’s history. Moreover, she decapitated the state Department of Environmental Protection staff by 738 employees in her first three years in office, cut the remaining staff’s workweek by five hours, eliminated fines of polluters as a source of DEP revenue and made large cuts in the DEP’s budget. That’s why the New Jersey Sierra Club’s Bill Wolfe has warned that Whitman might “dismantle [federal] EPA and take it out of the enforcement business. I believe that this is precisely the policy Whitman has presided over and legitimized in New Jersey.” ~~~~ Whitman: A Toxic Choice

But it wasn’t just the press that was very different – there were Republican Senators who were willing to defy Gov. Whitman and defend DEP budgets and environmental regulations.

Check out this remarkable letter from NJ Senate Republicans – could you even imagine that now?

Source: US Senate Confirmation hearing transcript for Christie Whitman as EPA Administrator:

https://www.gpo.gov/fdsys/pkg/CHRG-107shrg69822/html/CHRG-107shrg69822.htm

Exhibit 1

New Jersey Senate

Trenton, NJ

May 16, 1996

The Honorable Christine Todd Whitman, Governor,

State of New Jersey State House

CN-001 Trenton, NJ 08625-0001.

Dear Governor Whitman:

Among all the responsibilities of government, there are few of greater importance, or of more concern to the public than the protection of New Jersey’s environment and the quality of public health. We know that protecting these important concerns, and carrying out these responsibilities through appropriate State actions and support is a priority you share with the Legislature and the general public. It is in recognition of that shared commitment to protecting New Jersey’s environment and public health that we write to you today.

We are greatly concerned that your proposed budget for fiscal year 1997 does not adequately provide the necessary resources to State government to meet the environmental challenges facing the State. This is especially true in the proposed funding for the Department of Environmental Protection.

The proposed budget would require dramatic reductions in scientific, technical and human resources critical to the mission of the Department. In a State facing the environmental issues New Jersey does, we need to respond aggressively to the challenges of insuring that our air is safe to breath, the water safe to drink or the empty lot next door safe to play in. It is highly questionable as to whether the Department will maintain the requisite expertise and resources under the fiscal year 1997 budget proposal to answer these questions and respond in a way protective of public health and the environment.

We are also concerned that the proposed reduction in resources will not fulfill the new approaches to environmental protection. The successful implementation of the initiatives under discussion will require additional resources above and beyond those currently available to the DEP. Many of the “reengineering” initiatives being undertaken by the Department will be fundamentally handicapped by the proposed reductions in resources contained in the current budget proposal.

Due to these concerns we feel that it is important that you be aware we may not be able to support this budget proposal, should it come before the Senate in its current form The historical erosion of staffing at the Department experienced over past budget cycles cannot be continued because the environmental goals we have outlined above will not be attainable.

We feel strongly that the proposed layoffs of DEP personnel will negatively impact the Department’s ability to effectively safeguard the environment and protect public health. Therefore, we cannot support a final DEP budget which contains employee layoffs.

We are, of course, committed to working with you to restore the resources we feel are necessary to carry out the critical functions of the Department of Environmental Protection We feel that it is very possible to identity appropriate resources, sources of funding and approaches to achieve this, and we ask for the opportunity to explore these with you and your staff.

Respectfully yours,

John O. Bennett, Senate Majority Leader.

Andrew R. Ciesia, Senator.

Joseph M. Kyrillos, Senator.

Henry P. McNamara, Senator.

Joseph A. Palaia, President Pro Tempore.

Jack G. Sinagra, Senator.

Robert W. Singer, Senator.

______

“Redundancy” is deemed a military function

In his classic novel of military madness, Joseph Heller’s Catch 22 posed the absurd contradiction: (Wiki)

According to the novel, people who were crazy were not obliged to fly missions; but anyone who applied to stop flying was showing a rational concern for their safety, and was sane. … 

“The case against Clevinger was open and shut. The only thing missing was something to charge him with.”

The NJ Pinelands Commission has created its own absurd Catch 22-like logic. I’ve written about the first 5, but #6 is entirely new and exciting (post forthcoming) and #7 is darkly subversive.

Catch 22 – #1

The Pinelands Commission reviews and approves all development in accordance with the standards of the Comprehensive Management Plan (CM) – unless the Executive Director decides to do so herself.

Once again, just like the South Jersey Gas pipeline, Executive Director Wittenberg usurped the Commission’s powers via issuance of a staff Certificate of Filing. The Commission will have no role in the NJ Natural Gas pipeline approval and will not vote on it.

Catch 22 – #2

The Pinelands Act requires public participation involving a public hearing and opportunity for the public to review and comment on draft approvals before they are issued by the Commission – except when the Executive Director says no.

Repeat #1.

Catch 22 – #3

Under the Pinelands Act, the Pinelands Commission sets policy and makes decisions, and the Executive Director serves at the pleasure of the Commission – except when Governor Christie tells her what to do and assures her job.

Commissioners Jackson and Fagalia found out what happens when you defy Governor Christie – you are summarily terminated and replaced.

Catch 22 – #4

Local governments issue land use approvals under the Municipal Land Use law in accordance with the standards of the CMP – except when BPU preempts them.

This is absurd by definition. The idea that BPU can play the same role and protect the same interests as a local government is absurd, particularly in assuming the independent, objective and qualified regulatory review role of protecting Pinelands resources and enforcing the CMP is absurd.

Catch 22 – #5

The Pinelands Commission is an independent regulatory agency that makes decisions in accordance with the standards in the CMP – except when Governor Christie decides otherwise.

Repeat the logic of #3.

Catch 22 – #6

The Pineland Act makes no distinction and provides no authority for the Commission or the CMP to distinguish between “public” and “private” development and to conduct fundamentally different review procedures for each – unless the Exectuive Director says so.

This is a new one that deserves its own post – coming soon.

*Catch 22 – #7

Under the Pinelands CMP regulations, a proposed pipeline across a military base must demonstrate that is it “associated with a military function”.

But just what is a military function? What kind of “association” is required?

* Corollary 7A – Large high quality forests in the Pines are protected by strict Preservation Area standards of the CMP and any pipelines running through them must meet Forest Area standards, including the requirement to serve “only the pinelands” – except if they are located on a military base, then see rule #7

The Pinelands Commission staff just found that the NJ Natural Gas pipeline across the Joint Base “served a military function” because it created a redundancy (left unsaid: redundant to current exclusive gas franchise service to the Joint Base by Public Service Electric and Gas).

Also left unsaid was that:1) the NJNG pipeline capacity was under contract and/or dedicated to future growth in demand and would not serve the Joint Base; 2) that the NJNG pipeline did not physically connect with existing Joint Base gas infrastructure; and 3) that Joint base did not identify any specific current or future plans to use NJNG pipeline gas.

By definition, this now means that the standard requiring “association with a military function” literally has no real concrete meaning at all.

Under this standard, literally anything could be approved.

Here’s my testimony on Friday about that absurdity (watch, my testimony starts at time 38 minutes):

I often reach to literature to find meaning in the regulatory deliberations of various governmental entities and I typically point to Orwell.

Today, we’ve cut a new literary path.

Today we will focus on Joseph Heller, because only someone with a dark sardonic sensibility and writing skill could use the Pinelands Commission standard – which is, in your regulations, the standard for approval of this pipeline on a military installation is “association with a military function” – as the basis to determine consistency with the CMP.

The Catch-22 here is the “association with a military function” is a redundancy, for a project with no current, projected, or planned need, that is paid for by the public ratepayer, that is globally destructive and is killing people.

There is your “associated with a military function” finding.

And it is done buried in the penultimate fact finding in the Certificate of Filing talks about the decision you made.

That finding was made at a time where it was accepted at face value – the finding said “the applicant represents” – in other words there was no inquiry which says “the Commission finds” …

The Certificate was based merely on the assertion of the applicant  – that’s bad enough.

But you had testimony here – with emails – credible testimony by multiple people, on the record, urging an Attorney General investigation, urging fact finding by the Commission, and I filed a complaint to the Pentagon Inspector General for the military aspects of this and fabricating a military need.

There is all this testimony on the record and people raising hell about it and your staff relies up a a representation of the applicant.

And the applicant is under a cloud – people claiming that he fabricated his application.

This is twisted.

Even If we didn’t have Paris and climate – if this were just a little housing development – this would be ludicrous.

The fact that is is a regional pipeline, with no need, across a military base, with these kind of questions pending: Joseph Heller, Catch 22.

Yossarian, where are you buddy?