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Rutgers Covering Up Their Role In Drafting Flawed Climate Change Legislation

Rutgers Denies OPRA for Records On Recommendations On Climate Legislation

I find Rutgers’ attempts to cover up their role in drafting a critically important piece of climate legislation contemptible as a matter of academic and scientific integrity and public policy.

[Update below]

Rutgers University just denied my Open Public Records Act (OPRA) request for public records regarding the role of the University in drafting seriously flawed climate legislation. Here’s the story:

On December 3, 2018, the Senate Environment Committee heard and released S3207, a bill purporting  to:

Establishes new timeframes for implementation of certain requirements in“Global Warming Response Act”; requires DEP to adopt strategy to reduceshort-lived climate pollutants.

During the hearing, Chairman Bob Smith, while voting to approve and release the bill, interjected “giving credit where credit is due”, to praise Jeanne Herb of Rutgers University for giving him the idea to introduce the bill.

I found that statement extremely interesting, for several important reasons (and not to trigger a climate denialist attack on science email scandal that we’ve seen before):

1) as I wrote, the bill is seriously flawed and misleading. Did those flaws originate in Rutgers’ recommendations or Senator Smith’s directions to OLS in drafting the legislation?

2) In September 2017, Rutgers released a comprehensive Report on climate change titled: An Examination of Policy Options for Achieving Greenhouse Gas Emissions Reductions. Ms. Herb was one of the authors of that Report.

The Report has sections titled “Analysis of Existing NJ legal Authorities “ and “NJ’s General Authority To Regulate Greenhouse Gas Pollution“. The Report uses the word “legislation” 76 times, and the word “regulation” 165 times.

Among other things, the Rutgers Report documented and made specific recommendations for new legislation and regulation to address major gaps and flaws in current NJ laws and DEP regulations regarding climate change.

The Rutgers findings included the fact that DEP deregulated GHG emissions in 2005, a vitally important fact directly relevant to Smith’s bill and that is not widely understood by the media, the public, environmental groups, or legislators. Rutgers wrote: (citations omitted, at pages 165-166):

NJDEP has affirmed that “air pollution” as it is defined under the APCA is broad enough to encompass GHGs. In 2005, NJDEP promulgated a regulation that revised existing regulatory definitions to clarify that CO2—as a GHG—met the definition of an air pollutant under the Act. The agency exempted CO2from existing regulatory requirements, but did require that stationary sources report emissions of CO2 and methane as an air pollutant. In the regulatory action, the agency also indicated that the other five GHGs commonly included in the basket of GHGs were air contaminants for the purposes of the Act.

That Repot received favorable new coverage, see:

However, the flawed bill, S3207, failed to incorporate any of the recommendations of the Rutgers Report.

How could Chairman Smith praise Ms. Herb when his legislation ignored virtually all of the recommendations of the Rutgers Report Herb authored ?

3) Prior to joining Rutgers, from 2002 – 2010, Ms. Herb was head of DEP’s Science and Policy unit and was directly involved in three major climate related policy initiatives:

a) the 2005 DEP regulation that defined greenhouse gases as air pollutants under NJ law, a move that anticipated the US Supreme Court’s groundbreaking decision in the “Massachusetts” case. However, that same rule, which DEP highly touted at the time, actually deregulated the emissions of GHG’s.

b) the passage and DEP implementation of the Global Warming Response Act, including drafting the 2009 Report required by the GWRA.

c) the passage and DEP regulatory implementation of RGGI.

Accordingly, Ms. Herb has been involved in over a decade of DEP climate change science, policy, regulation and public relations. For an analysis of that history, with links to all the documents, see:

4) In prior legislative testimony in Trenton before Smith’s Committee, it had been the policy of climate scientists at Rutgers to limit their role in the Trenton legislative and regulatory arena strictly to science, and actively avoid discussing legislative, policy and regulatory issues.

I was critical of that practice and called it basically an abdication of scientific responsibility, see:

Chairman Smith’s praise of Ms. Herb in suggesting the legislation directly contradicted prior Rutgers policy.

5) for over a decade, myself and others had been testifying before Smith’s Committee, writing Reports and issuing press releases, about all this, so the Rutgers Report and Ms. Herb’s recommendations could not have been new to Smith.

So, to get a better understanding of what actually transpired between Chairman Smith and Ms. Herb and to understand Rutgers’ role in drafting the bill, on December 5, 2018, I filed an OPRA for the public records regarding communications between Ms. Herb and Chairman Smith.

My OPRA requested:

Records Requested: On Monday 12/3/18, NJ Senate Environment Cmte. Chairman Bob Smith stated, during an open Senate Cmte. hearing, that Jeanne Herb of Rutgers University (Associate Director of the Environmental Analysis and Communications Group at the Edward J. Bloustein School of Planning and Public Policy) contacted him and was involved in the drafting of Senate bill #3207, regarding implementation of the Global Warming Response Act. I request all communications between Ms. Herb and Senator Smith and OLS staff, including emails, phone records, meeting notes, and correspondence regarding S3207 and climate change in general (e.g. adaptation, mitigation, & Rutgers research).

Two days later, just before 5 pm on a Friday, Mr. Casey Woods, Rutgers OPRA Custodian responded, with this reply that claimed my request was “unclear” and “overly broad”, and went on to cite Government Records Council Guidelines and a Court case to support that claim:

This request is unclear and overly broad as written. A search for “any and all” correspondence or communications would be impossible to conduct. This letter seeks to clarify what documents you are seeking from the University. You may narrow your request by specifying a specific type of record or records and by including a time frame so that we may conduct a search for responsive records. If you are seeking emails specifically, we would require a sender/recipient, keyword or phrase, and a date range to conduct a search.

I immediately phoned Mr. Woods and we had a robust discussion.  I advised that my request met the specific GRC Guidelines he cited and was in fact not overly broad” and was precise, not “unclear”.

I did agree to revise the word “”any and all” records to “every” record, and explained why in a followup email:

The reason I used the term “all” was to assure I was provided 100% of the records requested, i.e. to capture the entire universe of public records. If I didn’t use that term, a partial response by Rutgers would have been responsive. For example, if I omitted the term “all” and there were 3 emails between Ms. Herb and Senator Smith and Rutgers provided 2 of them, that would be responsive.

Accordingly, I am submitting this reply clarification without surrendering my original request for “all” public records requested. However, in the interests of clarity, I will revise the term “all” to “every”. The remainder of my original request stands.

You make a fair point regarding the timeframe of the request. My original request was not time bounded. During our phone conversation, I clarified that timeframe to January 1, 2018 to the present. However, I would like to revise that timeframe back to August 1, 2017. The reason I do so is that in September 2017, Rutgers publicly issued a Report supervised and/or written by Ms. Herb on directly relevant climate issues. I chose August in the event that Ms. Herb provided legislators, OLS staff, or Senator Smith a pre-release briefing.

So, it appeared that Rutgers had backed off the “overly broad” and “unclear” claims, and agreed to provide responsive records.

So, I was blindsided and shocked today to receive a flat out denial from Rutgers, and NOT on the bases they originally asserted and Mr. Wood and I discussed at length (i.e “overly broad” and “unclear”).

Rutgers moved the goalposts, and denied the OPRA on the basis of an alleged legislative exemption.

Here’s the full text or Rutgers’ denial:

The University has reviewed your request and determined that any records responsive to this request would be exempt as legislative records. OPRA specifically exempts legislative records, including “any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member’s official duties.” Therefore, your request for legislative records is denied. 

How is it possible that a publicly funded public University can deny public records regarding the scientific recommendations of their staff to a public legislator on legislation?

What about transparency, accountability, and scientific integrity? The public trust in and perception of the University as a science based, non-partisan, intellectual broker?

Surely, the legislative exemption in the OPRA statute was intended and written to apply to the lobbying efforts of private individuals, lobbyists, and attorneys representing private sector clients, not public university science.

I find Rutgers’ attempts to cover up their role in a critically important piece of legislation contemptible as a matter of academic and scientific integrity and public policy.

[Update: I left out two points:

1) Ms. Herb was a political appointee in the McGreevey and Corzine Administrations. Her initial career at DEP was boosted during the Florio administration as a result of her former spouse, Jeff Scott, who was then a CWA 1034 staffer and covert Democratic political operative.

Surely, Rutgers is aware of this Democratic partisan background, which would suggest that they bend over backwards to avoid an appearance of partisan activity.

2. In another example of  “arsonists are the best firefighters” and revolving door abuses, I note that the Rutgers Report received “expert peer review” from, among others,  Samuel Wolfe, of Viridity Energy Solutions, Inc. and Steve Gabel, of Gabel Assc.’s., the only two private sector “peer reviewers”.

Both Wolfe and Gabel are former high level DEP officials and have close relationships with Ms. Herb and Trenton Democrats. In addition to the partisan and “friend of the Report’s author Jeanne Herb” concerns, both have potential bias and conflict of interest issues.

Mr. Wolfe (no relation) began at DEP in the late 1980’s in the Office of Regulatory Affairs. He is a smart and hard working lawyer. I worked with him on various regulatory issues. He left DEP to join PSEG and then later was a political appointee at the McGreevey DEP in 2002, serving as Asst. Commissioner for Environmental Regulation.

In that capacity, Wolfe not only worked on regulatory and policy issues related to his former employer PSEG, he was directly involved – more so than Ms. Herb – in the 2005 gross deception on the DEP regulation that deregulated GHG emissions.

So, Wolfe now conducts “expert peer review” in the Rutgers Report, a critique of the poor regulatory policy he crafted at DEP back in 2002. How can one credibly peer review their own work?Readers of the Report would have no way of knowing any of this important background information.

Mr Gabel is a former BPU and DEP official. I worked for him during the McGreevey administration, when Gabel was a political appointee, transferred from BPU to the DEP Director Of the Division of Solid Waste (part of Gov. Florio’s consolidation of DEP with certain energy regulation at BPU, to form DEPE. ).

Gabel is an expert and, as a former regulator, clearly understands the disastrous policies of privatization and deregulation, as he was involved in the “McEnroe” deregulation of BPU economic regulation of garbage incineration “service agreements”. That McEnroe law set up a private deregulated procurement process that grossly ripped off the public.

Despite this knowledge and experience, he left DEP to benefit from the Whitman deregulation of the energy industry.

Again, Rutgers surely knows this political and professional background and should have been wary of perceptions of bias and conflicts of interest, as well as revolving door and partisan abuses.

I like and respect both Wolfe and Gabel, but the self serving nature and insiders game is quite distasteful and unethical.  ~~~ end update]

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