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Memory Hole: Whitman’s Horrible Environmental Record As NJ Governor Was Exposed But Is Now Forgotten

Whitman As Head Of Bush EPA Injected Over A Decade Of Delay In Regulating Greenhouse Gas Emissions

A friend sent me Christie Whitman’s disgusting Op-Ed at the Star Ledger last night and I lost a night’s sleep over it, see:.

• Former Gov. Whitman: The cost of inaction

Whitman’s opening first two paragraphs are transparently self promotional attempts at rehabilitation. They are outrageous misrepresentations of her environmental record as NJ Governor and EPA Administrator in the Bush administration.

This claim is perhaps the most egregious lie, because Whitman issued an Executive Order (EO #27) that explicitly reversed NJ’s longstanding policy of adopting stricter State DEP standards than the federal EPA counterparts:

States have long been the laboratories of democracy, and New Jersey has a long history of working to protect our environment.

NJ media knowingly provided a platform for Whitman’s lies. Unforgivable, and I let my old friend and Star Ledger editor Tom Moran know that and demanded that he give me an opportunity to set the record straight. No way he’ll do that.

I also reached out to Bergen Record editor Jim O’Neill to demand that he defend the Record’s award winning series “Open For Business” and the work of Record reporters Dusty McNichol and Kelly Richmond, both of whom are dead and can’t defend their work and set the record straight.

I won’t waste my time today on the substance of that remarkable cynical and self promotional Op-Ed, but instead drill down on one egregious lie that belies the core premise of the piece: Whitman’s own failed record of delay, inaction, and deregulation on the climate issue.

For those interested in the totality of Whitman’s environmental record – which I closely followed, strenuously opposed for 8 years, and have documented extensively with receipts  –  a good starting point would be to read the Bergen Record’s national award winning series on Whitman’s environmental record aptly titled “Open For Business” (as an intro, read this American Journalism Review article:

• A New Genre of Environmental Reporting 

Other good accountability stories include two from The Nation:

• Whitman: A Toxic Choice

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.” One mechanism was the Office of Dispute Resolution, which she established to mediate conflicts over environmental issues (usually resolved in favor of business). She also installed an Office of Business Ombudsman under the Secretary of State (the Star-Ledger labeled it “essentially a business lobby”) to further grease the wheels of the bureaucracy for polluters and developers, and to act as a counterweight to the DEP.

• Gloves Off In The Garden State

Whitman’s environmental record is in sharp contrast to Florio’s. As a Congressman, Florio wrote and passed the toxic cleanup Superfund program, and as governor he passed two major state laws–the New Jersey Pollution Prevention Act and the Clean Water Enforcement Act–that were among the toughest in the nation. Whitman, however, downsized the state Department of Environmental Protection by one-third, and under her administration, enforcement fines and penalties are down a whopping 80 percent. Any state limits on pollution that exceed federal standards are now subject to a cost-benefit analysis, an antiregulatory approach. Whitman has favored a “voluntary compliance” program, under which polluters are allowed a “grace period” to negotiate with state agencies before fines and penalties are imposed. “I call it ‘Let’s Make a Deal,’” says the Sierra Club’s Wolfe. “Whitman is no moderate on the environment. This administration has done nothing on environmental quality–air, water and waste issues–but starve the bureaucracy and put enforcement on a short leash.

Whitman was so bad, the New York Times even weighed in:

• [Whitman’s] Low Mark on Environment

A coalition of environmental and public-policy groups yesterday gave Governor Whitman a grade of C- on how she has handled environmental issues. The biggest problem, according to Bill Wolfe, a policy specialist with the New Jersey Environmental Federation, is cuts she has made in the budget of the Department of Environmental Protection.

For the fact checkers and policy wonks, I also provide a detailed analysis of Whitman’s record, with links to source documents and mainstream media, in this post.

Whitman also brought energy deregulation to NJ in 1999, initiated the right wing attack on, rollback and politicization of regulations (see Ex. Order #27 and Ex. Order #15) and abolished the Office of Environmental Prosecutor (see Ex. Order #9) There are numerous similarities between Whitman and Trump policies.

She was playing to the same corporate interests that brought the Gingrich right wing “Contract On America”.

But Whitman’s record on climate is the worst. Let me tell two inside baseball stories that perfectly illustrate that.

1. When Whitman went to EPA, she brought a lawyer from her Governor’s Office named Bob Fabricant along with her as EPA’s General Counsel.

Fabricant subsequently wrote a legal memorandum which reversed the Clinton Administration’s legal position on the crucial issue of whether greenhouse gas emissions were regulated “pollutants” under the Clean Air Act.

Clinton EPA’s legal position was that yes, they were. Fabricant reversed that and concluded that greenhouse gas emissions were NOT regulated air pollutants under the Clean Air Act.

The US Supreme Court cited Fabricant’s legal memo in the groundbreaking case of Massachusetts v. EPA, which mandated that EPA make a finding regarding the regulatory status of GHG missions with respect to the Clean Air Act. The Obama EPA subsequently made that finding and GHG emissions are now regulated (I think EPA regs are far too lax, but that a different issue).

The Supreme Court cites Fabricant’s legal opinion in the text of the opinion, (@ p.8) citing EPA Federal Register notice 68 Fed. Reg. 52924 – . 52925–52929 (2003 ):

On September 8, 2003, EPA entered an order denying the rulemaking petition. 68 Fed. Reg. 52922. The agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, see id., at 52925–52929; and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time, id., at 52929–52931.

Whitman’s own EPA Legal Counsel injected over a decade of delay in EPA action of controlling GHG emissions – and she now claims that the window to act is rapidly closing!!!!!!!!!!!!!!

2. When Whitman was NJ Governor, her environmental policy was that NJ was “Open For Business” – and she backed that slogan up with Executive Orders rolling back NJ’s more stringent State standards, slashing DEP budgets and staff by 30%, eliminating the Environmental Prosecutor, gutting NJ’s toxic site cleanup law by allowing partial cleanups (caps and deed notices, known legally was “engineering and institutional controls”) and vesting cleanup decisions in the hands of polluters (i.e. Brownfields Act of 1997), enforcement grace periods, voluntary compliance, self disclosure immunity, and a failed attempts to gut NJ’s clean water laws (eliminate the Clean Water Enforcement Act and the propose the “Mega-Rule” to gut DEP clean water regulations). I could add more.

On climate, to her credit, while DEP Commissioner Shinn was the first to establish an emissions inventory, he made any emissions reductions totally VOLUNTARY, thus setting back efforts to force emissions reductions by a decade.

These are facts in the public record.

Either NJ media editors have very poor memories or they are just as corrupted as Whitman.

Tammy Murphy Campaign Event In Newark IronBound Stokes Controversy

Gov. Murphy Could Have DEP Kill The Project Tomorrow

PVSC air pollution permit, Source NJ DEP

The Passaic Valley Sewerage Commission’s (PVSC) plans to build a gas fired backup power plant at their Newark sewage treatment plant got revived press attention when Tammy Murphy, Gov. Murphy’s wife, appeared with environmental justice advocates in Newark Ironbound to criticize the project.

The First Lady tweeted out her opposition to the plant:

I spent the morning with the ⁦‪@IronboundCC‬⁩, ⁦‪@SouthWardEA‬⁩ and concerned families to stand together to oppose the new gas-fired power plant in the heart of Newark.

The PVSC project is now before the Murphy DEP seeking final permits.

Associated Press reporter Wayne Parry covered the political dimension of the controversy and made hay of the husband wife angle. But his reporting included some information on the pending DEP permits, but he missed a lot, see:

• New Jersey gov’s wife, a US Senate candidate, opposes power plant that he could kill

Specifically, long before all this political controversy hit the fan today, I recently wrote about serious flaws in the DEP’s review and approval of air permits for the existing PVSC sewage treatment plant.

The plant is a major source of greenhouse gas emissions and air pollution, including toxic hazardous air pollutants that negatively impact the health of the Newark community. The sewer plant is literally a poster child for abuses known as “environmental justice”, yet the DEP major air permits were exempt under the recent Murphy Environmental Justice law, see:

• Murphy DEP Proposed Major Air Pollution Permit For Regional Sewage Treatment Plant In Newark, But Failed To Conduct Environmental Justice Or Climate Reviews

In written comments I submitted on flaws in DEP’s draft permit, I requested that DEP hold a public hearing in Newark so the community could understand these flaws and work to fix them, instead of being duped by spin and Gov. Murphy’s green cheerleaders.

The Murphy DEP ignored my criticism and they took an unprecedented step and even denied my request for a public hearing! I am not aware that DEP has ever denied a written request for a public hearing – once a request is made, it is almost automatic that it is approved.

Read the DEP’s response to public comment – including how they evade responding to specific flaws in the environmental justice law and explain why they denied the public hearing request. I think we can all agree that these are substantive and very serious flaws, and I backed them up with evidence:

COMMENT 1

The commenter requested that the Department conduct a public hearing in Newark on the draft permit based on the following concerns:

1) public health risk assessment from HAP and VOC emissions

2) failure to conduct an environmental justice review

3) failure to conduct a climate review or regulate greenhouse gas emissions

4) failure to impose “State of the Art” emissions controls pursuant to NJ’s Air Pollution Control Act

5) failure to fully mandate air pollution emissions fees, including for greenhouse gas emissions

6) failure to comply with NJ law that governs the 20-year time horizon for conversion of methane to CO2 equivalents.

DEP issued the permit and dismissed the public hearing request thusly – a denial I have never heard before in over 39 years of work at and on DEP:

The Department will not be holding a public hearing since the issues raised are not relevant to the draft permit under review, as outlined below:

Read their excuse – it is obviously made in bad faith in an effort to deny the people of Newark accurate information on DEP permit review practices, defects in those practices, and massive loopholes in the environmental justice law and DEP’s EJ program.

Now, only if we could get the media to focus on this substance, instead of campaign horserace political stunts. Maybe if I give them a picture?

Loss Of Habitat To Development Remains A Major Threat

Loss Of DEP Regulatory Protections Will Be Applauded By Builders 

I strongly urge readers to get the word out on this proposal and nip this in the bud before it becomes a rule proposal, at which point it will be too late for DEP to back off.

The Murphy DEP will soon propose rules to delist the Bald Eagle from the State’s Threatened and Endangered species program and thereby remove regulatory protections for the bird’s habitat.

Buried in an otherwise standard puff piece on bald eagle recovery, in the 10th paragraph we learn: (NJ Spotlight)

“The Department [of Environmental Protection] is considering delisting bald eagles,” Clark said. “There’s going to be a rule proposal — we don’t have a date on it yet, but it’ll be this calendar year.” 

Surely, NJ Spotlight editors know that developers have long sought to remove land use regulatory protections of habitat, which can serve as a constraint on development.

But instead of raising alarm bells, the NJ Spotlight story reads like a brief from the NJ Builders Association to justify such a delisting.

DEP is obviously engaged in news management and is spinning this story to get out in front and frame what they know will be a hugely unpopular and controversial proposal.

Remarkably, here’s what the NJ Spotlight story failed to even mention – i.e. development threats, habitat loss, and DEP regulatory protections.

So let me share some of DEP’s own assessments on those issues.

According to DEP (emphasis mine):

ENSP biologists continually work to manage and reduce disturbance in eagle habitats, especially around nest sites. Eagles are sensitive to human disturbance and will abandon their nest sites if people encroach on the area during the nesting season. Education and established viewing areas are important in minimizing disturbance, as are the efforts of eagle project volunteers. Biologists also work to protect habitat in a variety of ways, including working with landowners, land acquisition experts, and through the state’s land use regulations.

DEP used to highlight the threats of land development and habitat loss and rely on strict land use regulations to reduce habitat loss, but stuff like the following warning has gone down Orwell’s memory hole. The current DEP dismisses the land use threats as “out of date” (See: New Jersey’s Landscape Project For the Protection of Rare Species

DEP touted stricter State regulations, despite rollbacks at the federal level (DEP, 2002):

I strongly urge readers to get the word out on this proposal and nip this in the bud before it becomes a rule proposal, at which point it will be too late for DEP to back off.

Beautiful sycamore in background, although Philly parks says it’s a London Plane tree.

Regardless, London plane tree is a hybrid of American Sycamore!

Murphy DEP Commissioner’s Pushback To Legislators Not Quite What’s Its Been Portrayed To Be

LaTourette Letter Loaded With Gaslighting, Straw Men, and Legal Loopholes

Reality is the exact opposite of the impression created by DEP Commissioner LaTourette and media cheerleaders

Shine your light on me Miss Liberty
‘Cause as soon as this ferry boat docks
And I’m headed to the church
To play Bingo, fleece me with the gamblers’ flocks. ~~~ Song For Sharon (Joni Mitchell, 1975)

Friends of Liberty State Park, as well as NJ media, have been spiking the ball at the 20 yard line, celebrating Murphy DEP Commissioner LaTourette’s letter to Legislative leaders on Liberty State Park development.

Here is Friends’ of Liberty State Park take:

-1/29/24 NJDEP Commissioner Shawn LaTourette great 12-page Revitalization Update response to the heads of the assembly and senate who wrote a letter critical of the Revitalization process based on misinformation from lobbyists of Fireman who wants public input only to the Fireman-dominated task force proposals and not from the DEP’s professional park planning consultants’ proposals.

Here is NJ media:

1-31-24 Star Ledger Editorial   “N.J. pols cave to a billionaire (cont.)”  …this is yet another warning that a plutocrat’s ability to reach into the highest echelons of state government is a serious and dangerous thing, even if it is only used to get a meeting cancelled so that he can rethink his strategy for hijacking the process.

1-31-24 TV PBS Spotlight News piece by David Cruz “Another clash over LSP revitalization”

1-30-24 Star Ledger Editorial “Lawmakers who should know better dance to Fireman’s tune” “LaTourette,who seems to have Gov. Murphy’s support, is an intrepid administrator…has laid out a blueprint that is ecologically sound, physically alluring, and welcoming to all – he is especially proud of carving out a whopping 60 acres for active recreation — and he has vowed to protect our state’s greatest open space from commercial predators.”

1/28/24 The Jersey Journal by Mark Koosau “N.J. legislative leaders unhappy with DEP’s direction on Liberty State Park revitalization plan” The letter, full of shameful misinformation that denies science, ignores the DEP’s pledge of 60 acres of LSP active recreation, and ignores Jersey City’s primary responsibility of creating and renovating sports facilities, shows how easy it is for billionaire Paul Fireman’s lobbyists to manipulate legislative leaders for his goal of deciding LSP’s future. This is another billionaire, Fireman power grab as he wants the public to only give input to proposals coming from this travesty task force created by his non-protection law and dominated by his front groups and other surrogates, and he wants to end the DEP’s responsible and fair plan of public input to DEP consultants’ recommendations.

1/16/24 The Jersey Journal by Mark Koosau “Nonprofit says kids need more ballfields at Liberty State Park, but it spent $1 million on salaries, lawyers, lobbyist and ads.”

5/28/23 The Star Ledger Editorial “Liberty State Park: The good guys finally won”
“The ultimate vision of a pristine urban oasis – protected from garish development, political dithering, and billionaire hubris
took a giant step closer to reality last week, when a massive plan to revitalize LSP was announced by the DEP
The glorious blueprint comes largely from the imagination of Shawn LaTourette, the tireless DEP commissioner who engineered a brillant plan for ecological restoration while adding an enormous array of recreational spaces – all as he withstood relentless pressure from moneyed interests.”

DEP Commissioner LaTouurette an “Intrepid administrator”? Or a gaslighting corporate lawyer shark? The Star Ledger praises “LaTourette’s vision” for LSP. Sorry Commissioner, you are no  Olmsted.

And no, the good guys have not won – at least not yet – and signals look doubtful for victory.

I hate to rain on their parade, but they all didn’t read LaTourette’s letter closely. He’s a crafty former corporate lawyer and uses words with precision in a way that can easily mislead the public and the media crowd, who focus on narrative and spin instead of substance.

So, here is where the LaTourette letter not only keeps the door open for corporate commercial development and Trenton political pay to play schemes, but actually legitimizes ethical conflicts of interest in the deliberations and planning of the DEP Task Force.

Here’s the legal loophole (page 3, my emphasis):

“DEP similarly recognizes that no uses of state lands can be dedicated for PURELY revenue generating purposes”

Did you get that? It’s a straw man: no one is advocating development for “purely” revenue generating purposes. The developments all would provide recreational and other public benefits, in addition to “revenue generation”.

Here’s the green light for ethical corruption, open conflicts of interest, and an open door for private interests to intrude on the Task Force’ public planning: (page 5, emphasis mine)

DEP expects that Task Force members will seek to aid DEP in achieving balance among competing public needs and that Task Force members will not only base their advice to DEP on those public comments with which Task Force members individually agree, or upon positions with which they may agree by virtue of their other personal, professional, or political affiliations outside of the Task Force.

Political affiliations outside the Task Force? Say what?

DEP is affirmatively stating that it’s OK for private interests to form the basis of recommendations and that conflicts of interest are OK too.

Here’ the opportunity for Legislators and Trenton politics to over-ride DEP and public demands, regardless of the planning process recommendations (at page 5, emphasis mine):

Resulting recommendations from the planning process will be presented to Legislators and the NJ Commission on Capital Budgeting and Planning consistent with standard practice for potential capital investments by the State.

Regardless of what the DEP Task Force recommends, the law is flexible and Trenton politics will determine the outcome.

And that reality is the exact opposite of the impression created by DEP Commissioner LaTourette and media cheerleaders.

And the context for all this has been completely ignored: ie. Governor Murphy just signed into law a bill that created a Statewide Parks Foundation that institutionalizes the exact corrupt private interest and influence created by billionaire Paul Fireman to lobby for Liberty State Park development, see:

• NJ Gov. Murphy Just Corporatized State Parks And Forests – Liberty State Park Targeted By Lame Duck Stealth Amendments

[Update –  a reader just sent me this quote of the day (Politico), which confirms my analysis:

QUOTE OF THE DAY: “I’m forgetting what that is.” — Gov. Phil Murphy on his radio program Tuesday night when asked why he doesn’t support the Liberty State Park Protection Act.