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Is Murphy DEP Commissioner Catherine McCabe On The Way Out The Door?

September 9th, 2018 No comments

Friday Night Massacre At DEP? – “there is a lot of weird here”

Gov.s’ Office Installs Interim Commissioner Over DEP Deputy Deb Mans

Gov. Murphy Further Politicized a DEP Already Deeply In Disarray

[Update below]

According to a press report, Gov. Murphy has made a highly unusual Saturday announcement – via twitter – that DEP Commissioner McCabe is traveling out of State for the month of September and will be replaced by a Gov. Office staffer, not DEP Deputy Commissioner Debbie Mans. Follow.

From the beginning, we have been highly critical of NJ Gov. Murphy’s choice for DEP Commissioner, Catherine McCabe, and written many posts on her ineffective leadership of DEP, particularly on addressing climate change (most recently, see:

McCabe – who was not confirmed by the Senate until late June and has allowed Senate President Sweeney and Assemblyman McKeon to install their former staffers and political operatives in DEP policy positions – has charted a course of “continuity with many controversial Christie DEP policies.

She has blind sided and embarrassed the Governor in the press, lacked any media message or policy agenda, and been an ineffective leader of DEP and proven incapable of reforming the status quo (see:

McCabe has been humiliated and cut out of the policy loop on climate change, allowing DEP leadership to be usurped by BPU and the Energy Master Plan. Similarly, McCabe was cut out of Natural Resource Damage policy by the Attorney General. Former political operatives in the Legislature that were installed as Chief of Staff and Director of Government Relations appear to be working behind her back with Democrats in the legislature, again, undermining DEP leadership and credibility by politicizing decisions.

Similarly, we have pointed out that McCabe’s selection of  so called “environmental leader” Debbie Mans as Deputy Commissioner was a purely symbolic gesture and cynical political appointment. Mans is no leader and lacks qualifications for the job, see:

We’ve predicted that McCabe would suffer a very short tenure, much like Gov. Florio’s initial pick for DEP Commissioner, Judy Yaskin, who served for several months before being replaced by Scott Weiner. We wrote:

While Acting Commissioner McCabe seems to be hiding under her desk in Trenton – is she trying to avoid Judy Yaskin’s fate? – Gov. Murphy has not rescinded Gov. Christie’s anti-regulatory and privatization Executive Orders (#1-#4; #17), but instead has shown a disturbing continuity with some of the worst Christie environmental policies, including: (read entire post for list)

But, while McCabe is floundering and failing to lead, at least Judy Yaskin was forced out because she took strong pro-environmental positions, as we noted:

I could be wrong – perhaps McCabe has done her homework and just doesn’t want to step out of the corporate Democrat line and become another deposed DEP Commissioner like her only female predecessor, Judy Yaskin, see: this old NJ Spotlight story:

“In the case of the Salem nuclear power plants, the controversy stretches back nearly three decades to the days of former Gov. Jim Florio’s administration. Then-Department of Environmental Protection Commissioner Judith Yaskin ordered cooling towers to installed at Salem — at a cost at that time estimated to be $2 billion –– citing a study that found the plant killed more fish each year than commercial fishermen harvested from Delaware Bay. …

Scott Weiner, who succeeded Yaskin as DEP commissioner, reversed the Salem cooling-tower decision. Instead, PSEG agreed to undertake a massive restoration program of more than 20,000 acres of tidal wetlands along the shores of the Delaware Bay. After he left state government, Weiner worked briefly as a consultant to PSEG.

So, we were not surprised that Bergen Record environmental reporter Scott Fallon, who seems to have broken a very interesting story that suggests McCabe’s imminent demise, tweeted this:

Saturday morning press release from @GovMurphy: DEP Commish will be traveling out of state “for the month of September”. No other details given. Kathleen Frangione from Govs (sic) office will be acting commish, (sic) not DEP no. 2 Debbie Mans.

There is a lot of weird here.

(I can’t provide the original tweet because Fallon has blocked me for criticizing his reporting).

Curiously, I went to @GovMurphy twitter feed and could not find the Saturday morning tweet Fallon refers to, so I assume that its been taken down. That only thickens the plot.

So I agree with Fallon that “there is a lot of weird here”.

My sense is that McCabe is “traveling” and will make a graceful exit by resigning when she returns for “family” or “personal” reasons.

The installation of Chief Policy Advisor Kathleen Frangione from the Gov.’s Office as interim DEP Commissioner instead of Deputy Commissioner Debbie Mans is not only a vote of no confidence in an a humiliating blow to Mans, it also validates what we’ve long said: that Mans was not qualified, not a leader, and always just a symbolic and totally cynical political appointment.

And it further politicized a DEP that is already deeply in disarray – although Frangione is said to be a climate policy expert. (but as a DC beltway lobbyist and Congressional staffer, not an expert or advocate)

[OMG, I just watched that Princeton talk. Frangione spoke more like a press agent than a policy expert. Jeanne Fox hovered over her to make sure she said nothing about policy decisions or political controversies. Frangione’s presentation was absent substantive content and data, it misrepresented current law (e.g. re: authorized uses of RGGI funds, the non-binding effect of Executive Orders, and with mis-statements about “DEP regulations”, etc) and loaded with slogans. If that’s what passes as a policy expert from Harvard and Yale, we’re doomed.]

We’ll keep you posted as we learn more.

In the meantime, DEP folks or anyone with valid information about all this can shoot me an email at:  bill_wolfe@comcast.net

[Update: A knowledgeable reader sent me the following note, suggesting that I exaggerate:

She has vacation house in Ocean City near some friends. 

He said going to Australia for month to visit for birth of granddaughter

So, if McCabe is going to Australia for a month, that could shine a light on Murphy’s lack of paid family leave policy.

It must be nice to just take off for a month. But can all NJ workers take a paid month for the birth of a child? Can they afford to do that? Is Murphy helping?

Similarly, is McCabe being paid during her travels? Does taking a month of from a leadership position damage her management credibility and commitment to DEP?

Is even raising these kinds of questions somehow taboo in the new #metoo world of women’s issues?

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Judge Kavanaugh Supreme Court Senate Confirmation Hearing Ends With A Whimper

September 7th, 2018 No comments

Democrats disappoint

Republican ends hearing by defending Nixon

Kavanaugh is the culmination of a 40+ year right wing project kicked off by the Powell Memo

Judge Kavanaugh’s US Supreme Court Senate confirmation hearing just ended.

Just when you thought the Republicans could not go lower, in his final move before adjourning the Kavanaugh confirmation hearing, Senator Kennedy [R-La.], attacked John Dean (of Watergate fame), essentially called him a “rat”, and said Dean – not NIXON – hurt the country.

Before the hearings began I laid out my concerns, see: Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court.

[Update – 9/8/18 – Nader agrees: Ralph Nader: Kavanaugh Is a Corporation Masquerading as a Judge]

Some of them were addressed during the hearings by Senators Whitehouse, Blumenthal, Coons, and Durbin. Whitehouse did by far the best job. And Cory Booker is a lightweight and self promoter.

The testimony of final panelist, Georgetown Law School Professor Lisa Heinzerling, echoed my concerns and hit the nail on the head, including the delegation doctrine issue:

The opinions that Judge Kavanaugh has written in his twelve years as a judge make clear that, as a justice, he would unsettle the independence, legal authority, and protective missions of administrative agencies. He would do so by discarding legal precedents that have long allowed Congress to structure our government and to address the pressing problems of the day without undue interference from unelected judges. He would work in the name of a cramped and skewed “liberty” that, in his hands, amounts to a freedom to harm other people with minimal government constraint.

These legal issues can sound quite abstract; they might even seem unconnected to people’s daily lives. But the Supreme Court’s approach to these questions has a profound effect on our everyday lives. One can name any problem that matters – environmental destruction, workplace hazards, sexual harassment, inadequate health care, financial fraud, food safety, and on down the line – and one will find that the day-to-day work of addressing that problem is done by an administrative agency. In each case, Congress will have made a judgment about the degree of independence the agency needs to do the job. Congress will also have given the agency instructions, some clear and some unclear, about how the agency should go about its work. Subjecting these agencies to more political meddling from the president, as Judge Kavanaugh thinks we should, would make these agencies more likely to work in the service of the privileged few rather than in the service of the broad public. Stripping them of legal authority to address the major issues we face, such as climate change and governance of the Internet, would leave us unprotected against new threats and new problems. The legal issues may seem abstract, but the tangible consequences are profound….

Judge Kavanaugh would distinguish “major” rules from “ordinary” rules by considering “the amount of money involved for regulated and affected parties, the overall effect on the economy, the number of people affected, and the degree of congressional and public attention to the issue.”19 Where these factors are present, Judge Kavanaugh would hold that an agency may not take a regulatory action at all without a clear legislative go-ahead. Judge Kavanaugh would, in other words, disable agency action in precisely the circumstances where it is most important. He has already announced that rules governing the Internet and regulating greenhouse gases are off-limits under his theory.20 Given Judge Kavanaugh’s criteria for identifying “major” rules, it is hard to imagine any significant regulatory proceeding that could not be subject to his new, power-stripping interpretive theory. ..

Consider Judge Kavanaugh’s opinion in Coalition for Responsible Regulation v. EPA.24 Judge Kavanaugh dissented from the denial of rehearing en banc in this case, which challenged an Environmental Protection Agency (EPA) rule requiring permitting for greenhouse gas emissions from stationary sources. Uncritically citing the Chamber of Commerce’s claim that EPA’s rule created “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency,” Judge Kavanaugh argued that the “major consequences” engendered by the rule counseled against reading the Clean Air Act to require permitting for greenhouse gas emissions.

( a variant of the concept of  the need for a “clear legislative go-ahead” was attempted by a bill that was heard but ultimately rejected by the NJ Legislature. That bill would have required explicit legislative authorization before a State agency could adopt guidance documents necessary to regulate. I wrote about that here).

By “liberty”, Kavanaugh really means “property” and corporate “profits” over people.

Here’s how professor Heinzerling sees that:

The touchstone of Judge Kavanaugh’s work as a judge is the separation of powers, and the motivating force behind his focus on the separation of powers is the protection of liberty. Unfortunately, however, the “liberty” Judge Kavanaugh embraces is badly skewed, and terribly small: it is the liberty of powerful groups to do their business unhindered by government, rather than the liberty that comes from meaningful government protections against harmful human behavior. In the name of “liberty,” Judge Kavanaugh has rejected rules addressing toxic air pollution, climate change, workplace safety, financial fraud, and more – without acknowledging that in such cases, “liberty” sits on both sides of the legal question. There is, on one side, the liberty of regulated groups to go about their business unimpeded by federal law. There is, on the other, the liberty of the rest of us to go about our lives – at home, at school, at work, and in our communities – with a reasonable assurance that the government has our back in protecting us against coming to harm at other people’s hands.

And here’s how professor Heinzerling raises concerns about Kavanaugh’s radical views on the delegation doctrine:

Congress often delegates authority to agencies to address broad problems whose full dimensions and manifestations are not immediately clear. Congress does so in the expectation that agencies will study and monitor the problems and take regulatory action as necessary to address them. Judge Kavanaugh, however, would require linguistic precision from Congress if it wants to authorize an agency to take on a specific new problem. He looked, for example, for such precise language in considering whether EPA could require permits for greenhouse gases and whether OSHA could fine SeaWorld for failing to protect trainers of killer whales against avoidable risks. In doing so, he has simply failed to listen to Congress’s instructions to these agencies to continue to investigate and address new problems. Congress has spoken, but Judge Kavanaugh hears only crickets.

Over the last 4 days, I was able to watch about half (over 15 hours) of those hearings, live Tweeted, and listened to NPR coverage and read some NY Times coverage. The Times ignored Senator Whitehouse’s withering statement – see below – here’s one of the few good articles – but far too little, far too late: Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action

I was pleased by Senator Whitehouse’s statements and line of questions that focused on corporate power, right wing foundations, Republican donors, and a documented record of biased Supreme Court decisions favoring corporate interests (see: WHITEHOUSE REVEALS KAVANAUGH’S PRO-CORPORATE, RIGHT-WING RECORD IN SCOTUS HEARING OPENER:

Lots of big Republican influencers are polluters. They like to pollute for free.

So of course the Roberts Five delivers decisions that let corporate polluters pollute.  To pick a few:  Rapanos, weakening wetland protections, 5-4; National Association of Home Builders, weakening protections for endangered species, 5-4; Michigan v. EPA, helping air polluters, 5-4;  and, in the face of emerging climate havoc, there’s the procedurally aberrant 5-4 partisan decision to stop the EPA Clean Power Plan.

But I come away deeply disappointed, and not just because Kavanaugh very likely will be confirmed.

I was disappointed by the democrats, the media, and the liberal/progressive community that opposed his nomination.

The Democrats disappointed me by:

1) lack of effective questioning of Kavanaugh’s actual record, including his written legal opinions and the policies he was very likely involved in during his time in the Bush White House;

2) by the lack of focus on substantive issues and connection of these issues to the lives of people, e.g. labor, environment, consumer protection, health and safety, etc. Instead, the Dems placed heavy strategic focus on process issues and on sterile narrow framing of issues like a lack of documents or adequate vetting;

3) for the most part, their poor choice of substantive issues to consider;

4) by ignoring or superficially addressing absolutely critical issues, like climate change, corporate power; economic regulation, the role of government, threats to voting rights, and at best, gross insensitivity and at worse outright attacks on and threats to democratic institutions, values and norms;

5) by their strategic disarray and undisciplined diversions;

6) by the way the pulled punches and failed to call Kavanugh a liar for false and misleading prior testimony;

7) by the way they ducked Kavanaugh’s radical right wing views on “religious liberty” and his total disregard for the establishment clause and the Jeffersonian “Wall” between church and state;

8) by the way they sat on sham “confidential” documents and when they finally did leak the, by their failure to talk about the implications of the contents of those documents. For example, they didn’t even go as far as the NY Times news coverage of what the leaked documents said (see above); and

9) by their failure to make the affirmative case is support of government and to defend government from the radical right wing attack that Kavanaugh’s nomination represents.

Finally, substantively, although it is taboo to say it in these #metoo times, the Democrats placed far too much emphasis on abortion and Roe v. Wade, to the detriment of other equally or even more important issues. Even that emphasis, however, downplayed discussion of the important individual privacy interests that the Roe decision protects and how those privacy protections are threatened by Kavanaugh’s right wing judicial philosophy.

The press (and I only followed NPR, which was atrocious coverage, and the NY Times) failed to write any of this stories or explain to the American public what was at stake and the nasty games the Republicans were playing.

Aside from the protests, I didn’t get a sense that the advocacy groups had any voice or influence at all.

There were times during the hearing – I’m thinking of Kavanaugh’s revealing discussion of the legal strategy of Thurgood Marshall that lead to the historic victory in the Supreme Court’s landmark Brown v. Board of Education decision – where Kavanaugh did all but openly admit his own strategy to radically reverse many Supreme Court precedents. He even said dissents are written for future generations (as a foundation for reversing precedents). His own radical dissents do just that.

Kavanaugh discussed Thurgood Marshall’s “litigation strategy”, e.g. to bring cases and build up a body of law that was inconsistent with Plessy “separate but equal” in order to pave way for reversal under Brown v. Board.

That sounds an awful lot like what the right wing is doing now on many issues.

That’s way beyond a right wing Dog Whistle.

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Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court

September 3rd, 2018 No comments

In the early 20th century, the Supreme Court systematically gutted regulations to favor business and attack organized labor. Those dark days have returned.  ~~~ “A New Lochner Era” (6/29/18)

“The Fourteenth Amendment does not enact Mr. Herbert Spencer‘s Social Statics” ~~~ Justice Oliver Wendell Holmes dissent in Lochner

[Update – 9/8/18 – Nader agrees: Ralph Nader: Kavanaugh Is a Corporation Masquerading as a Judge – end update]

During the US Senate confirmation of Judge Gorsuch, I wrote:

I’ve previously written about how President Trump’s Supreme Court nominee Neil Gorsuch’s views on administrative law would threaten foundational principles of the entire edifice of what has been attacked by Trump strategist Steven Bannon as the post New Deal “administrative state”. …

There is a real possibility that a Gorsuch influenced Supreme Court could severely dismantle the New Deal and all environmental protections via placing restrictions  on administrative regulatory agencies and making it easier for corporate interests to challenge and dismantle regulatory protections.

Make no mistake – Gorsuch’s views are radical and a serious threat to modern government.

If adopted by a conservative Supreme Court – they threaten the foundations of the New Deal and all federal environmental and and public health protections.

I had written:

Reflecting that Powell strategy and anti-regulatory corporate ideology, Gorsuch has signaled a fundamental attack on federal regulatory powers: (see Judge Gorsuch’s concurrence at page 15)….

In that same opinion, Judge Gorsuch not only signals an attack on federal regulatory power. His analysis would virtually repeal the New Deal Administrative state and harken back to the 19th century “non-delegation doctrine” the Supreme Court once invoked to block New Deal reforms.

And, in the first chance he had, Gorsuch did just that, (by invoking 19th century “freedom of contract”, not the “non-delegation” doctrine) (see: A New Lochner Era):

Janus is the culmination of several recent 5–4 decisions in which the court’s conservatives laid the groundwork for a fatal blow to public sector unions. But its true predecessor is Lochner v. New York, the notorious 1905 decision that turbocharged the court’s pro-business interventions into health, safety, and economic regulation. This term, Kennedy helped the court revive Lochner in Janus and two other sweeping 5–4 decisions that undermined labor rights and women’s health. His successor is certain to accelerate this trend, all but ensuring an impending judicial crisis. …

… in his Epic [Janus] opinion, Justice Neil Gorsuch ruled that the NLRA did not safeguard employees’ ability to sue collectively, claiming baselessly that class-action lawsuits don’t count as “concerted activities.” In the process, he gutted the NLRA, calling Section 7—which was meant to be American labor’s Magna Carta—a mere “mousehole,” undermining future plaintiffs’ ability to resolve workplace conflicts collectively. There is no legal justification for neutering the NLRA. Gorsuch simply imposed his own anti-labor ideology onto the law, shredding precedent and the plain meaning of the statutes to reach his desired pro-business result.

The legal attack applies not only to labor laws –  “His [Judge Kavanaugh’s] opinion had echoes of 19th-century state court rulings that factory workers assumed the risk of injuries from machinery that cut off their hands.” – but virtually all federal public health, safety, economic and environmental regulation.

(read the right wing Federalist Society radical legal attack on the New Deals “administrative state” seeking to invoke the 19th century’s “non-delegation doctrine”.)

The stakes are huge and made abundantly clear in the Senate’s confirmation of Trump nominated Judge Kavaugh. (A New Lochner Era):

In her Janus dissent, Justice Elena Kagan issued a grave warning: “Almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.” This term, thanks to Gorsuch’s fifth vote, the Supreme Court descended into radical partisanship that jeopardizes its institutional legitimacy. Kennedy’s replacement, inevitably a Gorsuch clone, will shore up a five-vote bloc to further impair labor rights, health care, and access to justice under capricious and pretextual constitutional doctrines. It will be Donald Trump’s Supreme Court. And the president’s judicial avatars will usher in a new era of Lochner-ism that subverts American democracy for decades.

The predictions in that Lochner article were validated buy Trump’s nomination of Kavanaugh (see “Liberty For Whom?):

… in 2017, Kavanaugh struck his most radical stance yet: He proclaimed that net neutrality violates the First Amendment. In a lone dissent, Kavanaugh compared internet service providers to “publishers, newspapers, and pamphleteers” who apply “editorial discretion” to their content. Internet service providers, Kavanaugh wrote, have a free-speech right to throttle the websites of their competitors, just as newspaper editors have a right to select their preferred op-eds. The government, he concluded, has no power “to regulate the content choices of private editors” (like Comcast), even when those “editors” are using their monopoly power to crush competition in the interest of profit, not expression.

But the coup de grâce of Kavanaugh’s Lochner streak came when the judge announced that the structure of the Consumer Financial Protection Bureau is unconstitutional. He first attacked the CFPB in October 2016, writing for the majority on a three-judge panel; his onslaught continued this past January, when the full D.C. Circuit reversed his panel decision, upholding the CFPBand prompting Kavanaugh to write a bitter dissent. The CFPB, an executive agency that regulates the financial services industry (to great success), is led by a single commissioner who can only be removed by the president for cause. Noting Congress’ desire to shield this commissioner from “political winds and presidential will” in light of the 2008 recession, the full D.C. Circuit upheld the agency’s independence.

Where the hell are the Democrats?

Where is the media? Amnesia? Cowardice? Corporate control?

The NPR setup story this morning almost made me puke. And this was broadcast AFTER they had what should have been an expose: an interview of a colleague of Kavanaugh’s who openly said the confirmation must be rammed through “prior to the mid-terms”, a comment that revealed the Republican’s political agenda.

They seem to have forgotten this NY Times editorial warning:

Corporate interests haven’t had it so good at the Supreme Court in a long time.

Under Chief Justice John Roberts Jr. the court has given big business a leg up on workers, unions, consumers and the environment — and will do so even more aggressively if the Senate confirms Brett Kavanaugh, President Trump’s choice to replace Justice Anthony Kennedy. …

The court’s pro-corporate decisions are widening the chasm in power and wealth between the country’s elite and everybody else. And the Roberts court is also increasingly preventing lawmakers, regulators and the public from doing anything about that growing problem.

“The Resistance” is diverted and bogged down in what Chris Hedges calls “boutique” activism – AKA identity politics – they displace fundamental economic, role of government, and regulatory issues.

It is truly sickening when the NY Times editorial Board is to the left of “The Resistance”.

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Disaster Capitalism – The Wildfire Edition

September 1st, 2018 No comments

Wildfires become pretext for logging, as media downplays role of climate change

Trump EPA over-rides EPA Science Board and quietly promotes logging

Joint climate catastrophe and forestry collapse

DSC3852

Over the same period [1990 – 2016], total C sequestration in the LULUCF sector decreased by 75.4 MMT CO2 (9.1 percent decrease in total C sequestration), and emissions from the LULUCF sector increased by 27.4 MMT CO2 Eq. (258 percent). …

Forest fires were the largest source of CH4 emissions from LULUCF in 2016, totaling 18.5 MMT CO2 Eq.   ~~~ EPA Greenhouse Gas Emissions Inventory

For the second summer in a row, I’ve been out west as record breaking wildfires and unhealthy smoke and dangerous fine particulate air pollution proliferate. Choking smoke hit the Puget Sound region last week.

The news coverage out here is saturated with not only dramatic video of the conflagrations, and the typical “hero firefighters” and human interest stories, but almost every news story I hear repeats two major flaws:

1) the role of climate change is ignored, downplayed, and – at times – even rejected as a major contributing factor;

2) the fires are blamed on poor forest management (fire suppression, public and environmental group opposition to logging, etc) and the solution is “active management” (a euphemism for logging).

(poor land use policies that allow development in high risk locations is also ignored, but that is beyond the scope of this post. And, of course, attribution to capitalism as a system is not remotely on the media radar or policy agenda.)

I write this today as the California legislature approves bill criticized as a PG&E bailout for wildfire costs:

Sacramento — After months of furious lobbying, a bill that would help Pacific Gas and Electric Co. deal with the costs of last year’s devastating wildfires — in part by passing some of those costs on to the utility’s customers — won approval from California legislators late Friday.

The bill was sent to Gov. Jerry Brown an hour before the Legislature’s midnight deadline. He is considered likely to sign it, despite bitter complaints from consumer advocates that it represents a bailout of PG&E

So, we can add billion dollar corporate bailouts to the list of really bad and unpopular public policies rammed through in the wake of disasters, exactly as Naomi Klein explained in her book “The Shock Doctrine – The Rise of Disaster Capitalism”:

using the public’s disorientation following massive collective shocks – wars, terrorist attacks, or natural disasters — to achieve control by imposing economic shock therapy

Klein shows many examples of how radical corporate designed policy proposals – far too politically unpopular to to be enacted during normal conditions – are taken off the shelf and rammed through in the wake of various “shocks” (Wiki):

[Klein’s book] centers on the exploitation of national crises to push through controversial policies while citizens are too emotionally and physically distracted by disasters or upheavals to mount an effective resistance.

But, in addition to utility bailouts, other really bad environmental policies are being advanced under the “shock” and cover of wildfire.

Specifically, another damaging example is logging as a fire suppression tool. Follow.

Disgraced former Trump EPA Administrator Scott Pruitt got close media scrutiny – including unprecedented and detailed inventories of many EPA rollbacks see: 76 Environmental Rules on the Way Out Under Trump

That media exposure, lawsuits and the courts already have derailed several of his radical pro-corporate polluter deregulatory initiatives.

But surprisingly, Pruitt managed to keep one at least one major controversial policy rollback under the media radar, at least as far as I know. The Harvard Environmental Law School’s “rollback tracker” missed it and so did Columbia Law School’s “environmental tracker” and so did the NY Times.

I refer specifically to Pruitt’s April 23, 2018 policy statement: EPA’s Treatment of Biogenic Carbon Dioxide Emissions from Stationary Sources that Use Forest Biomass for Energy Production:

On April 23, 2018, EPA Administrator Scott Pruitt issued a statement of policy making clear that in future regulatory actions biomass from managed forests will be treated as carbon neutral when used for energy production at stationary sources.

That policy, now being taken off the shelf, states (read the whole thing):

The use of biomass from managed forests can provide numerous environmental, energy and economic benefits. Specifically, forest biomass use for energy can bolster domestic energy production, provide jobs to rural communities, and promote environmental stewardship by improving soil and water quality, reducing wildfire risk, and helping to ensure our forests continue to remove carbon from the atmosphere.

According to scientific studies, Pruitt’s new forest biomass policy and “carbon neutral” finding reflect a major “accounting error” and will “severely undermine greenhouse gas reduction goals“:

This accounting erroneously treats all bioenergy as carbon neutral, regardless of the source of the biomass, which may cause large differences in net emissions. For example, the clearing of long-established forests to burn wood or to grow energy crops is counted as a 100% reduction in energy emissions, despite its causing large releases of carbon.

Pruitt’s policy represents a serious risk to our forests as well as climate – check out the global implications: (Science, Vol. 326. Oct. 2009)

Several recent studies estimate that this error, applied globally, would create strong incentives to clear land as carbon caps tighten. One study (2) estimated that a global CO target of 450 ppm under this accounting would cause bioenergy crops to expand to displace virtually all the world’s natural forests and savannahs by 2065, releasing up to 37 gigatons (Gt) CO2 per year (comparable to total human CO2 emissions today).

Another study predicts that, based solely on economic considerations, bioenergy could displace 50% of the world’s net forest cover and release an additional 9 Gt CO2 per year to achieve a 50% “cut” in green- house gases by 2050 (3). The reason: when bioenergy from any biomass is counted as carbon neutral, economics favor large-scale land conversion for bioenergy regardless of the actual net emissions (4).

Pruitt’s radical policy will reduce the ability of our forests to store (sequester) carbon, increase greenhouse gas emissions and exacerbate exactly the kind of unhealthy fine particulate air pollution we are experiencing from major fires.

Pruitt explicitly rejected and over-rode the findings and recommendations of EPA’s own Science Advisory Board (SAB) who issued a 2012 Report to EPA Administrator Lisa Jackson that, among many other serious flaws with using forests as a fuel source, and the “carbon neutral” basis, found:

Carbon neutrality cannot be assumed for all biomass energy a priori. There are circumstances in which biomass is grown, harvested and combusted in a carbon neutral fashion but carbon neutrality is not an appropriate a priori assumption; it is a conclusion that should be reached only after considering a particular feedstock’s production and consumption cycle. (@p.3) …

The notion that biomass is carbon neutral arises from the fact that the carbon released as CO2 upon combustion was previously removed from the atmosphere as CO2 during plant growth. While it is true that emissions from burning a single tree will equal the same amount of carbon sequestered by that tree at a micro level, at a macro level, net emissions will depend upon rates of harvest vis-a-vis rates of sequestration over time. Thus, the physical flow of carbon in the biomass combusted for bioenergy represents a closed loop that passes through a stationary source. Under an accounting framework where life cycle emissions associated with the production and use of biomass are attributed to a stationary source, assuming carbon neutrality of biomass implies that the net sum of carbon emissions from all sources and sinks is zero, including all supply chain and market-mediated effects. Carbon neutrality cannot be assumed for all biomass energy a priori (Rabl et al. 2007; Johnson 2009; Searchinger et al. 2009). There are circumstances in which biomass is grown, harvested and combusted in a carbon neutral fashion but carbon neutrality is not an appropriate a priori assumption; it is a conclusion that should be reached only after considering a particular feedstock production and consumption cycle. There is considerable heterogeneity in feedstock types, sources, production methods and leakage effects; thus net biogenic carbon emissions will vary considerably.

Given that some biomass combustion could have positive net emissions, a categorical exclusion would remove any responsibility on the stationary source for CO2 emissions from its use of biogenic material from the entire system (i.e., the global economy) and provide no incentive for the development and use of best management practices. Conversely, a categorical inclusion would provide no incentive for using biogenic sources that compare favorably to fossil energy in terms of greenhouse gas emissions. (@ p. 17)

Pruitt’s new policy on the use of forest biomass as a domestic energy source and his arbitrary “accounting error” of “carbon neutrality” are huge threat to forests and all the wildlife, water quality, and recreational benefits they provide.

Yet, it has gotten virtually no media attention and little pushback from the public and environmental groups that I am aware of (though I’m frequently off the grid).

That policy paves the way for the current “disasters” of wildfire risk to be used to promote “salvage logging” and “active management” as fire suppression strategies.

Aside from the debate raging out west, my NJ friends have already seen this happen, by the recent passage of legislation to expand the use of so called “prescribed burns”. As NJ Spotlight reported:

STATE SENATE OKS PRESCRIBED BURNS IN PINELANDS, OTHER NJ WOODLANDS

After years of debate, lawmakers have given final approval to a bill that would offer more opportunity to conduct prescribed burns in New Jersey woodlands.

The bill is viewed as a way to reduce wildfires in the state while promoting the ecological health of forests, particularly those in the Pinelands. …

“Controlled burns are a critical tool in preventing the type of massive wildfires that have the ability to devastate forest and communities,’’ said Sen. James Beach, a Republican from Burlington County and a sponsor of the bill.

Note how Senator Beach cites prevention of “massive wildfires” as a primary justification for the legislation.

That is a flat out lie, printed uncritically by NJ Spotlight and echoed by NJ “conservationists”:

“It absolutely helps reduce the chance of wildfire,’’ agreed Jaclyn Rhoads, assistant executive director of the Pinelands Preservation Alliance, which has backed the legislation.

But news coverage of Gov. Murphy’s signature of the bill into law exposed these lies.

Specifically, existing law – prior to the new law – provided ample legal authority to conduct “prescribed burns” to reduce fuels and wildfire hazards and thus prevent wildfires. Here’s a quote from the Chief of NJ’s Forest Fire Service that exposes the lie: (Press of Atlantic City (8/29/18))

New law means expanded use of prescribed burns

… “We will have a significant number of new opportunities to use fire as a tool, not only to protect areas but to manage habitat,” said New Jersey Forest Fire Service Chief Greg McLaughlin, whose division is part of the DEP. “The law (previously) had restricted us specifically to use it only to reduce fuels and hazards.”

There is huge and growing momentum to expand logging of our forests under sham wildfire prevention, habitat improvement, and “salvage logging” pretexts.

This can only accelerate deforestation and climate catastrophe.

Shockingly, corrupt “conservationists” are either active collaborators or silent enablers of these policies. And I mean you, NJ Audubon, NJ Conservation Foundation, and Pinelands Preservation Alliance.

Buried in the NJ Spotlight story is the real reason for this disgrace – economic self interest:

The legislation establishes a process for certifying individuals to conduct prescribed burns  … The bill also reduces liability for those who conduct prescribed burns.

Conservation groups can now avoid the cost of liability coverage and benefit from grants and consulting contracts as certified foresters.That’s why this bill was passed – Tittel gets it half right:

Jeff Tittel, director of the New Jersey Sierra Club, opposed the bill, saying it should have been limited to the Pinelands. “This bill is not about making our forests healthier, but about providing insurance for those people who want to burn their lands,’’ he said.

Follow the money.

[End note and warning: I got blindsided on the Pruitt biofuels policy in reading the fine print of EPA recent proposal to repeal and replace the Obama clean power plan. The “carbon neutral” determination is included in that rule proposal, which will allow states to abuse forests and claim climate credits.

Chasing the scientific basis for the Pruitt policy led me to the Pruitt April 18 policy statement and the 2012 SAB Report to EPA.

Warning: keep this in ind as NJ implements the new RGGI program – carbon sequestration is legislatively included in the RGGI program. This will allow groups like NJ Audbon to get funded from RGGI funds for their logging projects, e.g. Sparta Mt., et al.]

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