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Friday in the Pines

March 28th, 2015 No comments

Pinelands Commission – Sheds Scandal Like Water off a Duck’s Back

I fell in love with the Pinelands … The Comprehensive Management Plan(CMP) is like the Constitution. … If we keep straying from it [the CMP] we’re going to kill it.  ~~~ (former) Pinelands Commissioner Robert Jackson (3/27/15)

In the first meeting after his decapitation by Gov. Christie and Senate President Sweeney, there was no tribute by the Pinelands Commission’s Policy & Implementation (P&I) Committee for former, deposed Commissioner Robert Jackson.

But, showing their true colors, like in the case of Commissioner Zeke Avery, the Commission did make haste to post the bio of his replacement on the Commission’s website, despite the fact that Bob Barr has not yet been sworn in yet and won’t officially become a Commissioner until the next full meeting of the Commission on April 10.

Interestingly, they left out the part of Barr’s bio where he served as Treasurer to the Cape May County Democrats and staff to Senator Van Drew (D-Cape May).

Jackson attended the hearing, from the audience, and spoke eloquently and was magnanimous, not bitter.

Jackson urged the public and Commissioners, rightly disgusted by the Trenton politics surrounding Barr’s appointment, not to take that out on him but to give the man a chance to listen, learn and grow into his Commission role, as Jackson said he did.

In stark contrast, Mr. Barr continued his lack of curiosity about the Pinelands and was absent -

Barr didn’t even attend the hearing to meet his new fellow Commissioner’s, find out what the P&I Committee actually does (he’s never been to a Pinelands Commission meeting) and meet the public who defend Pinelands preservation and the CMP.

I spoke after Jackson and focused on the emails and what I think are not only improper process, but actions by Wittenberg adn Roth that are unprofessional, unethical and warrant firing for insubordination.

Commissioner Earlen, playing the role of Commissioner Avery in his absence, responded by the same straw man claim that he encouraged the staff to communicate with applicants and that nothing unusual or inappropriate took place during the SJG MOA review.

Commissioner Lloyd disagreed, but limited his concerns to a lack of transparency and failure to include SJG communications in the administrative record.. Lloyd failed to note the inappropriate role of SJG, as a regulated entity, played in the process, the staff’s actions without authorization of knowledge of the Commission, the staff’s false public statements,  and the excessive discretion under current MOA standard of “equivalent protection”.

Chairman Lohbauer also supported staff and created his won straw man, by claiming that “no violations of the CMP” occurred.

So, like water off a duck back, Wittenberg and Roth and the Govedrnor’s Office all dodge the scandal and all accountability.

We did learn one thing knew in response by Counselor Roth to Georgina Shanley’s question about the status of the SJG litigation.

Roth said that the litigation was handled by the AG’s office and that a “statement of items comprising the administrative record” and briefing schedule had not been developed yet or approved by the Court – this makes me question whether SJG is serious about the lawsuit. A statement comprising the administrative record should have been approved by now – what explains the delay?

  • Actions Taken

1) MOA Policy Advisory Committee formed

Chairman Lohbauer began by announcing the new 7 member MOA Policy Advisory Committee to the Commission.

It is comprised on Commissioners Ashmum (Chair) and Galetta, LLoyd & McGlinchy. County and local rep, plus Fred Akers as the public rep.

There was no aggressive schedule of clear objective expressed.

Ashmum quickly made it clear that the public could “listen” to the Committee deliberate, but not provide public comments to it.

I and others objected to the lack of an ability to comment on the COmmittee’s deliberations,  but Chairman Lohbauer refused to differ with Ashmum and said public comment could be provided when the full Commission considers the Committee’s recommendations.

Bad first step.

2) approval of controversial minutes

The P&I Committee approved the minutes of the January 30, 2015 meeting, where there was significant public outrage expressed over the PPA emails.

My remarks were summarized thusly:

Mr. Bill Wolfe recommended that the Commission impose an administrative moratorium on any waivers or MOAs until it performed a critical review of the status of “equivalent levels of protection” in an open and transparent way. He said this was a recommendation he had made during the discussions of the South Jersey Gas (SJ Gas) application in July 2013. He said the documents posted on the Pinelands Preservation Alliance’s (PPA’s) web site reveal that Commission staff had engaged with the applicant starting back in 2012. Also, he described other information that he characterized as showing conflicts. He said the Committee’s upcoming closed session this morning would not constrain him from speaking about legal concerns related to the MOA. He said the public has no confidence in the Commission’s Executive Director or the Counselor due to the revelations in the posted documents. He said the Commission needs to ask for whom its staff works. There had been ongoing conversations with the governor’s office and the Board of Public Utilities (BPU). Mr. Wolfe said the Executive Director is supposed to review staff recommendations but that process was tainted by the interjection of SJ Gas. Referencing correspondence between SJ Gas and the Commission’s counselor asking about the veracity of a statement he had made, Mr. Wolfe said he wanted his comments reviewed by staff, not by the applicant. Mr. Wolfe said the recusal process for Ed Lloyd (at the time of the vote on the SJ Gas application) had been reviewed by the New York Times and emails indicated that the Governor’s Authorities Unit had been involved in near real time. He said decisions are being made not by the Commission but by Trenton.

3) Climate Change – Head in the sand posture continues
Chairman Lohbauer pulled me aside before the meeting began to talk – he apologized for the fact that the Commission did not provide a response to my March 13, 2015 request for the Commission to begin addressing cliamnte change. He said he assumed that Director Wittenberg has replied.

I repeated that request during Friday’s P&I meeting, noting that the Commission was diverting scarce staff resources and time to promote economic development projects instead of focusing on the most critical threat facing the Pinelands resources and that their own science had already documented impacts from climate change.

I also noted that the CMP already included energy efficiency standards and comprehensive regulations that discouraged solar installations, so energy and climate issues were already within the scope of the CMP and the policy was bizarre situation: strict regulations to discourage solar, while no regulation of climate and staff promote fossil infrastructure like the SJG pipeline.

Director Wittenberg responded that she would provide a written reply soon.

4) Black Run Watershed – Forest preservation or development scheme?
Staff made a presentation to the P&I Committee on the Black Run watershed, in portions of Evesham and undisturbed and preserved forested lands in  Medford.

The plan was designed to reflect a 2006 transfer of development plan developed by Medford and Evesham.

The plan involves protection of high water quality by re-designation of 4,000 acres of high quality forested lands from rural development area to Forest Area, reduce allowable development density from 1 unit per 3.2 acres to 1 unit per 25 acres (for a total maximum of just 70 units), and expand the boundaries of thousands of acres permanently preserved ecologically signifiant lands.

If that sounds too good to be true, you are right.

Staff found that

  • the current rural development designation “demoes not reflect the ecological vale of the area”
  • the current rural development designation ”continues to crate unrealistic development expectations”
  • a Forest Area resignation would reflect the current CMP standards for Forest Area,

Despite those findings, in a complete contradiction to the above findings, staff also found that Forest Area re-designation would result in:

significant, uncompensated loss of property-owner’s value

How can the reduction of development potential be “significant” if the site has significant environmental and regulatory constraints to development at the allowable RDA density of 3.2 units per acre?

Why is staff’s recommendation so heavily influenced by greatly exaggerated diminution i property value?

Based what appears to be primarily on this “significant uncompensated loss of property-owner’s value”, the plan option recommended by staff would transfer the development density reduced in the Forest Area to a 175 acre parcel o the Evesham border with Voorhees Township. That parcel is currently zoned for 55 units – the new density transfer would allow 325 units.

Very bad deal – if the development potential at the current forested land is severely contained and is a maximum of 70 units, then there is no way 325 new units is a good plan.

Plus, the proposed option violates the current CMP standards regarding wastewater management.

Why is staff recommending options that violate the current CMP?

As Commissioner Jackson said:

If we keep straying from it [the CMP] we’re going to kill it. 

Commissioner Ashmum raised concerns that the staff presentation lacked the full history of the Medform Evesham Plan and a discussion of all the data, objectives, and programs that plan was based on.

Other Commissioners agreed and the staff recommendations thankfully were tabled for reconsideration at the new P&I meeting.

This is something to keep an eye on.

5) New Agricultural “Pilot” – Expanded economic development opportunities

The Commission created a new Agriculture Committee and its first task will be to consider how to respond to legislative threats, led by Senator Lesniak an Assembly Democrat Andrzejczak (D-Cape May) – the same District 1 of SJG pipeline champions Senator Van Drew and Assebmlyman Fiocchi adn new Commissioner Barr.

The issue arose out of the Tuckahoe sod farm soccer tournament controversy.

Another political concession by the Commission that undermines the CMP.

As Commissioner Jackson said:

If we keep straying from it [the CMP] we’re going to kill it. 

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Pinelands Commission to Begin Reform of MOA Rules At Issue In Pipeline Battle

March 26th, 2015 No comments

First Meeting In Wake of Bruising Battle over Bob Barr’s Senate Confirmation

Embarrassing Emails Sure To Reignite Debate

Tomorrow the Pinelands Commission’s Policy and Implementation Committee will meet to discuss, among other things, reforms to the current regulations governing Intergovernmental Memoranda of Agreement (MOA).

Chairman Lohbauer recently called for creation of an Ad Hoc Committee to reform MOA rules in response to disclosure of a series of highly improper emails between pipeline applicant South Jersey Gas, Governor Christie’s Office, and Executive Director Wittenberg and legal Counselor Roth.

The trove of emails were obtained by the Pinelands Preservation Alliance, who had to file a lawsuit after their OPRA request was denied.

Prior to that, I also filed a simialr OPRA request that also was denied, see: What Does the Pinelands Commission Have to Hide?

Those emails reveal, at best, a compromised review process, and have generated embarrassing press and critical editorials, see:

I recently predicted that any MOA reform process needed to be closely monitored:

I suspect that the overall game plan is to not oppose Chairman Lohbauer’s proposal to form an Ad Hoc MOA rule reform Committee, but rather to install Tony on the inside, delay and co-opt the MOA reform process, and divert the focus while SJG pursues an alternate pipeline route outside the Pinelands.

I will attend tomorrow’s meeting and repeat my prior recommendations or MOA reforms:

I spoke and recommended that the Commission strengthen the CMP MOA rules by developing more detailed standards and criteria to beef up the current vague and excessively discretionary CMP regulatory standard for MOA’s (@ NJAC 7:50-4.52(c)2.) that sets the following standard:

afford an equivalent level of protection of the resources of the Pinelands than would be provided through a strict application of the standards of this Plan.  

I suggested that the Commission look to NJ DEP’s Guidance and Technical Manual regarding reductions in the 300 foot C1 stream buffers, which require demonstration of “equivalent ecological function” (see: NJAC 7:8 -5.5(h)1.ii.) which sets this standard:

The encroachment shall only be allowed where applicant demonstrates that the functional value and overall condition of the special water resource protection area will be maintained to the maximum extent practicable.

I also recommended stronger standards and definitions of public projects and public entities, to avoid the abuse of using BPU to cover for the private SJG project.

I also recommended that the Commission impose an administrative moratorium on review of any applications seeking a MOA or Waiver of Strict Compliance until CMP regulations are strengthened, so we don’t repeat the mistakes made during the SJG review process.

The model for a moratorium was the Delaware River Basin Commission’s moratorium on review of fracking applications until new safeguards were developed to address gaps and weaknesses in current DRBC regulations.

We’ll keep you posted on what transpires.

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Christie Whitman Has Dirty Hands On EPA Mercury Power Plant Rule

March 25th, 2015 No comments

Whitman’s suppression of mercury science as NJ Gov. & EPA Administrator led to 24 years of delay

US Court ridiculed Whitman’s EPA as “deploying the logic of the Queen of Hearts”

Congressional General Accounting Office (GAO) found EPA “distorted” mercury science

“Once again, in the choice between families and polluters, President Bush has left every child behind in order to reward industry and campaign contributors,” said Commissioner Campbell. “This rule betrays the public’s trust by calling for standards far too weak to protect public health and the environment. Moreover, the emissions reductions trumpeted by the EPA in this rule are misleading and inaccurate.” ~~~ DEP Press release

With the US Supreme Court hearing oral arguments on EPA’s power plant mercury emissions rule today, there are national news stories on former Governor and US EPA Administrator Christie Whitman’s actions that were never reported by the NJ press corps.

So, let’s take a closer look at all that, a play in three Acts:

  • Act I – Whitman as NJ Governor

As I reported yesterday, the Whitman role in mercury began in 1993, when DEP issued a Mercury Task Force Report that recommended pollution control standards for mercury emissions from garbage incinerators.

But that 1993 DEP Report also recommended that additional emissions standards be developed for coal fired power plants.

And that’s where Whitman comes in.

Whitman assumed office in January 1994. She wasted no time on the mercury issue.

In the first months of her administration, Whitman:

  • disbanded the Florio Mercury Task Force
  • derailed DEP’s efforts to develop a mercury standard for coal power plants
  • suppressed science that found NJ had high levels of mercury in freshwater fish
  • reversed Florio’s Solid Waste Plan and garbage incinerator moratorium and resumed promotion of incineration, a major source of mercury emissions

I was forced out of DEP as a whistleblower for leaking the Gov.’s memoranda with DEP Commissioner Shinn that exposed the scientific coverup (see this for links to documents and new reports).

[Note: here is the coverup version of the Philadelphia Academy of Natural Sciences study. Note that it states the study was conducted from 1996-1997.  But note reference to a prior study. The prior 1992-93 study was the one that was suppressed and then rejected by Whitman/Shinn DEP and sent back on false scientific grounds, i.e. to speciate the form of mercury present in fish tissue:

The results of this study are consistent with ANSP 1992-93 mercury in fish research in New Jersey.  …  In addition, the results of the 1994-95 NJDEP 15 lake follow-up study (reported herein) are in agreement with the ANSP 1992-93 study  

The coverup version mischaracterizes the original 1992 -93 study as a “preliminary screening study”, but the 92-93 fish sample size and location (313 fish at 55 sites) were LARGER than the followup study 258 samples from 30 sites.

I still have the corrupt Commissioner Shinn memo to Gov. Whitman and the sworn testimony of DEP Assistant Commissioner from the transcripts of my personnel hearings that proves these points, which I’d be glad to share with an intrepid investigator out there. ~~~ end note]

DEP did not ultimately adopt a mercury emission standard for coal power plants and other major sources until 2006.

Whitman was responsible for a 12 year delay in DEP regulation of mercury emissions, a move that poisoned the environment, fish & wildlife, and led to needless exposure of sensitive populations – like pregnant  women and young children – with untold health and behavioral effects.

  • Act II – Whitman as EPA Administrator

Whitman’s actions to distort, suppress and delay mercury science and regulation while NJ Governor were a prequel to her behavior as US EPA Administrator.

We tried – unsuccessfully – to warn the US Senate during Whitman’s confirmation hearings about her NJ record. We worked with US Senate staffers and submitted detailed testimony opposing her confirmation (see page 120 – 126) of confirmation transcript):

Exhibit 4confidential memorandum of DEP Division of Science and Research regarding factual errors made to press by Whitman (March 28, 1994)—Note—sworn testimony of DEP officials supporting conclusions that Whitman and DEP Commissioner Shinn conspired to suppress and downplay the significance of environmental mercury and fish tissue research is available upon request.

Whitman has often dodged accountability for her actions at EPA by blaming Vice President Cheney. But the facts suggest otherwise, that Whitman had a direct and knowing role.

During her US Senate confirmation hearings, regulation of mercury power plant emissions was a major issue of controversy, based in part on our input.

Whitman failed to answer a direct question on how she would regulate mercury emissions from coal fired power plants, given the Clinton Administration’s finding that regulation was necessary –  which proves she knew the mercury power plant rule was a highly controversial issue:

Question 36. As you may know, the Administration has found, pursuant to the Clean Air Act’s direction, that it is necessary for public health to control mercury emissions from coal- and oil-fired power plants. The schedule set out in that recent determination requires EPA to propose regulations by December 15, 2003, and issue final regulations by December 15, 2004. Will you honor that schedule and allocate the appropriate resources to ensure that it can be met?

Response. I will first review this recent determination and then make a decision.

Following confirmation, her actions as EPA administrator echoed her tactics in NJ that we warned about.

The abuses by Whitman’s EPA were so egregious that the Union of Concerned Scientists (UCS) conducted a case study Scientific Integrity In Policymaking and produced this scathing report:

UCS documents that Whitman’s actions at EPA exactly followed the pattern in NJ: 1) suppression of science; 2)  leak to press by conscientious professional; 3) critical media reports; 4) followed by reluctant action. UCS report:

senior Bush officials suppressed and sought to manipulate government information about mercury contained in an Environmental Protection Agency (EPA) report on children’s health and the environment. As the EPA readied the report for completion in May 2002, the White House Office of Management and Budget and the Office of Science and Technology Policy (OSTP) began a lengthy review of the document. In February 2003, after nine months of delay by the White House, a frustrated EPA official leaked the draft report to the Wall Street Journal, including its finding that eight percent of women between the ages of 16 and 49 have mercury levels in the blood that could lead to reduced IQ and motor skills in their offspring.[3]

The finding provides strong evidence in direct contradiction to the administration’s desired policy of reducing regulation on coal-fired power plants and was, many sources suspect, the reason for the lengthy suppression by the White House. On February 24, 2003, just days after the leak, the EPA’s report was finally released to the public.[4] Perhaps most troubling is the suspicion that the report may never have surfaced at all had it not been leaked to the press.

Whitman did not resign until June 27, 2003, so this was all under her watch.

But, as UCS reports, it gets even worse – look at what went on at EPA under Whitman’s leadership:

In a more recent development, the new rules that the EPA finally proposed for regulating power plants’ mercury emissions were discovered to have no fewer than 12 paragraphs lifted, sometimes verbatim, from a legal document prepared by industry lawyers.[5] When challenged, EPA officials contended that the language crept into their proposed rules “through the interagency process.” But Robert Perciasepe, who headed the EPA air policy office during the Clinton administration, called the wholesale use of industry language “inappropriate.” As Perciasepe told a Washington Post reporter, “The regulations are supposed to be drafted by the staff—the people in the science program and regulatory branches.”[6]

Drawing upon interviews with no fewer than five current career employees, reporters at the Los Angeles Times exposed in detail the process that led to the proposed mercury regulations. According to these and other sources, political appointees at the EPA completely bypassed agency professional and scientific staff as well as a federal advisory panel in crafting the proposed new rules.[7]

Bruce C. Buckheit, who retired in December 2003 as director of EPA’s Air Enforcement Division after serving in major federal environmental posts for two decades, says that his enforcement division was not even allowed to review the mercury regulations prior to their release. As Buckheit puts it, “the new mercury rules were hatched at the White House; the Environmental Protection Agency’s experts were simply not consulted at all.”[8]

In particular, EPA staff members say they pointed out the fact that comparative scientific studies of the effects of the proposed rules were required by EPA procedure. But these EPA staffers contend that they were explicitly told by Jeffrey R. Holmstead, head of EPA’s Office of Air and Radiation, that such studies would not be conducted partly because of “White House concern.”[9] Buckheit and other EPA veterans say they cannot recall another instance when the agency’s technical experts were so thoroughly shut out of the process in developing a major regulatory proposal. According to Buckheit, the incident is representative of “a degree of politicization of the work of the Environmental Protection Agency” by the Bush administration ”that goes beyond anything I have seen in my career in government.”[10]

In the wake of these serious allegations, EPA Administrator Michael Leavitt reportedly ordered additional studies of the effects of the proposed mercury rule. Administrator Leavitt also said information related to media reports on the agency’s inclusion of industry-drafted language in its proposed rule had been forwarded to the EPA’s inspector general for possible investigation.[11]

In February 2005, the EPA’s own inspector general reported that agency scientists had been pressured to change their scientific findings in order to justify the Administration’s industry-friendly rules.[12] The report recommended that additional analysis was needed before the rule was finalized. Days later, a Government Accountability Office report found that the EPA had distorted its analysis of the health impacts of mercury on brain development in children and fetuses.[13]

Despite these warnings, and to the great dismay of scientists and public health professionals, the EPA issued its final rule on March 15, 2005 without revisiting the egregiously manipulated and distorted science behind the rule.

After the mercury rule was finalized, the Washington Post reported that EPA officials purposefully omitted the results of a Harvard study—paid for by taxpayer dollars—which showed that the costs of mercury pollution and the benefits of a regulation stronger than the administration’s proposal were higher than previously thought.[14]

Update: On February 8, 2008, the U.S. Court of Appeals for the D.C. Circuit found that the EPA had illegally violated the Clean Air Act’s requirements of significant and timely reductions in toxic air pollution, including mercury, from the nation’s coal-fired power plants.[15] The EPA had been unpersuasive in showing that the levels of toxic emissions from power plants allowed by the rule would not have adverse health and environmental effects.[16] In response to this decision, the EPA will likely develop MACT standards to control mercury emissions.[17]

Congress investigated the matter and the US General Office of Accounting issued a scathing Report (journalists can read the Washington Post’s coverage of that GAO Report).

EPA’s own Inspector General also investigated and issued a critical report on EPA’s multiple failures in a highly politicized rule-making process:

  • Act III – Beyond Irony – Events Come Full Circle

And to top it all off and tie this history up with a bright red ironic bow, an incredulous federal judge ruled, in a case filed by New Jersey (see: New Jersey v. Environmental Protection Agency), that Whitman’s EPA had engaged in logic of the Queen of Hearts:

The court’s attitude toward EPA’s creative attempts to justify its reading of section 112 went beyond skepticism to incredulity. The court described EPA’s argument for finding ambiguity in the delisting requirement as “deploy[ing] the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of section 112(c)(9).” A comparison to the Queen of Hearts should be insulting to anyone familiar with the Queen’s impetuous disregard for the rule of law in Lewis Carroll’s Alice’s Adventures in Wonderland.

Perhaps the court’s hostility was rooted in frustration with the decidedly political nature of EPA’s maneuvering. In less than five years, EPA had performed a complete about-face from its 2000 Finding. Its drastic change in approach reflected the policy of the George W. Bush Administration to favor market-based regulatory systems that limit costs to industry, sometimes at the substantial price of greater risk of harm to the population.

The Clinton Administration legally teed the mercury rule making upo in 2000. Whitman assumed the helm at EPA in 2001.EPA didn’t issue a final mercury rule that is now before the Supreme Court until 2012.

So Whitman added another 12 years of delay at EPA, the same delay she was responsible for in NJ.

As then NJ DEP Commissioner Brad Campbell, a man Gov. Christie just attacked as a “know-nothing failed former DEP Commissioner”, said at the time the NJ lawsuit against EPA was filed:

“Once again, in the choice between families and polluters, President Bush has left every child behind in order to reward industry and campaign contributors,” said Commissioner Campbell. “This rule betrays the public’s trust by calling for standards far too weak to protect public health and the environment. Moreover, the emissions reductions trumpeted by the EPA in this rule are misleading and inaccurate.”

You really can’t make this stuff up – history is a bitch.

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US Supreme Court Review of EPA Mercury Rule Exposes Fatal Flaws In Gov. Christie’s Environmental Policy

March 24th, 2015 No comments

Christie’s craven policy puts industry profits above the health of NJ residents

Gov. Christie doesn’t want to talk about any of this and he’s happy that these extremely controversial issues remain buried in the regulatory weeds and DEP bureaucracy, places where NJ’s press corps dare not go.

Yesterday, in writing about the US Supreme Court’s review of an industry challenge to EPA’s mercury emission standard for power plants, I committed the same sin that I blast the NJ press corps for (e.g. all superficial politics, no policy).

I made a political argument that Gov. Christie was driven by his 2016 Presidential primary political ambitions in making a decision not to join with neighboring states in support of the EPA regulation.

So today, unlike the NJ press corps, I followup to explain why the decision – while politically expedient – also was consistent with the Gov.’s environmental policy.

This is the legal issue before the US Supreme Court in the mercury standard:

Whether EPA permissibly declined to consider the costs of regulation when it made its threshold determination to regulate hazardous air pollutants from power plants.

But that narrow legal question has far broader policy implications, which we now turn to.

  • Role of the state’s

The role of State’s is under attack by industry and their backers in Washington, who seek to limit and eliminate State “laboratories of democracy”, particularly with respect to establishing and enforcing State environmental standards that are stricter than national minimums.

That is what the preemption debate is about in the hugely controversial federal chemical safety bill currently under debate in Congress, carrying the Orwellian name of Frank Lauternberg. That bill would federal preempt – or legally prohibit – state’s abilities to regulate chemical safety.

Gov. Christie’s “federal consistency” policy is the flip side of that same industry federal preemption coin.

With no public debate, unilaterally, and via Executive power, Gov. Christie has stood the historic federalism framework on its head by by curbing regulations that are needed to implement State laws to be “consistent” with federal minimum.

Christie has adopted, by Executive Order #2, a “federal consistency” policy that actively discourages stricter NJ State standards as one means of providing “regulatory relief”:

State agencies shall, when promulgating proposed rules, not exceed the requirements of federal law except when required by State statute or in such circumstances where exceeding the requirements of federal law or regulation is necessary in order to achieve a New Jersey specific public policy goal.

So, of course, Christie doesn’t want to talk about a 15 State initiative that is based on the opposite of his policy: State leadership and strict standards.

The Supreme Court mercury case highlights the critically important role of the State’s in advancing public health and environmental protections.

As the State Attorneys General noted, the States acted aggressively to fill the void created by federal EPA abdication:

Faced with ongoing delays in the promulgation of Section 112 emission standards for power plants, many of the undersigned states implemented comprehensive controls on power plants within their own borders. Between 2000 and 2010, at least fifteen states [including NJ] enacted regulations requiring coal-fired power plants within their borders to reduce mercury emissions.

The State standards were enacted years BEFORE EPA finally acted and the State standards are far more stringent and protective of public health than the EPA standard.

As NJ based PSEG noted in their legal filing to the Supreme Court, the EPA federal standard is far less stringent that State standards and the standard EPA was legally authorized to adopt under the Clean Air Act:

Many states impose more stringent pollution control requirements than their neighbors because these controls are needed to attain air quality standards or to serve some other public health goal.  ...

EPA’s nearly exclusive use of Floor Standards is significant for another reason: it contradicts petitioners’ portrait of an agency determined to regulate as aggressively as possible. Had that been EPA’s motivation, EPA would certainly have adopted more aggressive emission standards under the authority of Section 112(d)(2). 42 U.S.C. § 7412(d)(2). That provision consigns the stringency of emission standards to a series of EPA administrative judgments about achievability, cost, non-air-quality health and environmental impacts and energy requirements, and even expressly authorizes a prohibition on hazardous emissions. .. Instead of exploiting this potent statutory authority to adopt more stringent standards, EPA imposed the least stringent standards the statute allows. 

NJ was one of those States that acted BEFORE EPA and more aggressively than EPA.

On August 1, 2005, DEP Commissioner Campbell proposed mercury power plant emission standards and those rules were adopted by DEP Commissioner Lisa Jackson on September 5, 2006.

Revealingly, Lisa Jackson signed a stricter mercury rule as NJ DEP Commissioner than the rule she signed six years later  as EPA Administrator.

Gov. Christie ignores all this NJ historical State leadership on mercury and strict environmental regulation because it reveal just how bad his own policy is.

It is simply remarkable that NJ’s largest polluter, PSEG,  - with facilities in the State’s Top 10 carbon polluters – is more supportive of an EPA regulation than the Governor of the State of NJ.

[Note: equally remarkable: PSEG unsuccessfully tried to convince Christie not to roll back NJ’s renewable energy goals.]

  • Use of Cost benefit analysis

The consideration of compliance costs and the role of cost benefit analysis is the core legal issue before the Supreme Court:

Whether EPA permissibly declined to consider the costs of regulation when it made its threshold determination to regulate hazardous air pollutants from power plants.

Congress directed EPA to consider public health before industry profits in regulating hazardous air pollutants.

But industry is arguing that EPA first must consider costs before deciding whether to regulate.

Governor Christie, again unilaterally, with no pubic debate, and via Executive Order #2, agreed with the industry argument.

Gov. Christie requires cost benefit analysis to be part of any DEP regulatory decisions:

For immediate relief from regulatory burdens, State agencies shall:

[a. - c.]

d. Employ the use of cost/benefit analyses, as well as scientific and economic research from other jurisdictions, including but not limited to the federal government when conducting an economic impact analysis on a proposed rule. 

So, of course Gov. Christie does not want to have any public discussion of how his craven policy puts industry profits above the health of NJ residents.

  • Abuse of Cost benefit analysis

Cost benefit analysis is an economic tool that historically has been used by industry to delay, weaken, and kill regulations that are designed to protect public health and the environment.

The tool is inherently biased because many health and environmental benefits can not be quantified or are difficult to quantify or are excluded altogether from traditional costs benefit analyses.

In addition to being biased and having questionable moral or ethical implications with respect to setting an economic value of people’s lives, CBA implicitly privatizes the commons and defines everything as a market commodity. On top of all that, CBA can be abused.

Since we are uncomfortable talking about a reduction in children’s brain function as a cost of doing business, we’ll let the lawyers from NJ based PSEG explain how cost benefit analysis was abused in this case:

Petitioners’ arguments are premised on a mischaracterization of the economic consequences of the Rule and EPA’s approach to benefit-cost analysis. The three petitioners’ briefs are intended to create the misapprehension that EPA found that the Rule would create only a few million dollars of benefits. The real story is quite different: EPA determined that the benefits of the Toxics Rule will be $37 to $90 billion, at least triple the costs of the Rule and Table 2. Petitioners’ rhetoric is not based on a comparison of all benefits to all costs, as proper economic analysis requires. Instead, petitioners exclude all unquantified benefits, and all quantified benefits other than the benefits of avoided IQ loss for children exposed to mercury through recreationally-caught fish. Nowhere do petitioners offer a legal or scientific rationale for ignoring over 99% of the benefits of the Toxics Rule.

EPA analyzed the costs and benefits of the Toxics Rule under Executive Orders 12866 and 13563, as it must with all major rules.  The purpose of these orders is to provide a detached, unblinking look at the benefits and costs of rulemaking, direct and indirect, quantified and unquantified. EPA applied best scientific practices and approved, peer-reviewed guidelines, and correctly showed that the benefits of the Rule vastly exceed the costs. See id. An independent peer review of EPA’s methodology submitted with Exelon’s comments on the proposed Toxics Rule confirmed EPA’s methodology and found that, if anything, EPA underestimated benefits and overestimated costs.

Petitioners’ criticism of EPA’s benefit-cost analysis appears to be that it is too inclusive, taking into account all costs and all benefits, but this is exactly the point of the exercise. It is true that the Toxics Rule will yield reductions in conventional pollutants (e.g., fine particulates) in addition to reductions in hazardous pollutants. Congress would not be surprised at that result.

We have made exactly the same argument and explained how the Christie administration was abusing cost benefit analysis to exclude benefits, specifically with respect to blocking off shire wind, see:

Again, of course Gov. Christie doesn’t want to talk about any of this and he’s happy that these extremely controversial issues remain buried in the regulatory weeds and DEP bureaucracy, places where NJ’s press corps dare not go.

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An Appeal To The Homies in Harding

March 24th, 2015 2 comments

A gnashing of teeth among NJ’s elite

Whining whitebread

a front yard in Harding NJ

a front yard in Harding NJ

I’ve previously written and posted photos to illustrate the conflict, to the point where I would have thought the targets of that criticism would be ashamed of themselves and lay low, but apparently some folks have no shame, see:

But, if you want another example of that shamelessness, check out this letter to the editor from the head of the NJ Highlands Coalition, whining about the lack of State funding to protect the backyards of the nobility up in Harding:

 … open space preservation in the future is going to be difficult in a new world with hardly any funding available …

Harding Township residents have long supported preserving key lands in town that protect the character of our community …

Implementation language on a bill to direct spending of those dollars is currently being vigorously debated in Trenton, but there is a very real possibility that Gov. (Chris) Christie will veto that legislation. Indeed, his proposed state budget instead allocates some of those funds to paying salaries of state park and Department of Environmental Protection (DEP) employees, and includes far less than the implementation bill to any acquisition.

Now we have a new paradigm that suggests the state and county will largely end helping purchase and protect open space. Towns and non-profits will be largely on their own.

Yikes! Poor Harding will have to survive all alone! Abandoned and adrift in that sea of wealth and social exclusion.

Gotta protect that community character! Keep out the riffraff.

I find this letter astounding – shockingly naive and selfish and parochial.

The author complains of a lack of funding from Trenton, yet the author was a leader of the gang that created the funding mess.

The public was never told before voting that the open space ballot question would steal funds from State Parks and core DEP water resource and toxic site cleanup programs.

I’ve spoken to scores of people about this, and virtually all say that they were not aware of any funding cuts and would never have voted YES if they had known.

The public is now finding that out, and is disgusted by the deception and shocked by the impacts.

Parks supporters and historic preservationists have risen up and gone to Trenton to fight to have their funds restored.

They will very soon be joined by those who understand the need to protect water resources, monitor and assess water quality, provide scientific support, and cleanup toxic waste sites – all DEP programs that were slashed by the open space ballot initiative.

Over 17 million people visit NJ state parks each year and there is a $400 million backlog in deferred capital maintenance – historic structures and facilities are literally crumbling.

The Open Space ballot stole ALL State Parks capital funds ($32 million/year) PLUS all revenues from leases and concessions that funded the operation of the Parks.

Did the author of this letter and her colleagues at the Keep It Green Coalition actually think that the Governor and Legislators would allocate open space funds to Harding, while closing state parks?

Did the author and the KIG actually think that their pet projects and staff would get funded while the tremendous needs of urban NJ continue to be ignored?

Did the author and the KIG forget all about how they marketed their Ballot Question with a deeply cynical and racist ad campaign that featured black children frolicking in parks? Stuff like this? Did they think urban Democratic legislators would simply forget all about that?

KIG advertsiment

KIG advertsiment

Did the author and the KIG actually think that the historic preservation advocates would just fold up the tent an walk away?

When confronted with these choices and huge public outrage, what did they think State policymakers would do?

By treachery and manipulation and pure selfish greed, the author and the Keep It Green coalition have generated a backlash and created huge animosity that has done irreparable harm to their organizations, their individual reputations, and the cause of open space preservation.

And now they have to gall to point fingers and whine about the mess they made?

A Harding NJ front yard

A Harding NJ front yard

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