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Political Pressure on DEP – How The Game is Played

September 1st, 2009 No comments

 

Senator Sweeney (center) consults with Senate President Codey (right) on Senate floor

Senator Sweeney (center) consults with Senate President Codey (right) on Senate floor

First I will lay out the general contours of the issue, and then I will provide the explosive goods. The goods will perfectly illustrate the problem. So bear with me.

It is no secret that Senator Stephen Sweeney (D-Gloucester), Senate Democratic Majority Leader, is a powerful force in South Jersey politics, the Legislature, and the democratic party. Sweeney knows how to wield that power.

It also no secret that Brad Campbell, former DEP Commissioner and one of the brightest environmental lawyers around, is no stranger to how the DEP makes decisions. Campbell has access to and knows how to influence DEP.

Former DEP Commissioner Bradley Campbell

Former DEP Commissioner Bradley Campbell

What is a secret (to the public) and known among only a handful of insiders, is that Sweeney and Campbell have teamed up to pressure DEP to reverse a recent major pro-environmental decision (this link is only a teaser, read on).

Typically, when pro-environment DEP decisions have a major economic impact on a politically powerful interest, those interests work behind the scenes to pressure DEP managers to reverse the decision.  All too often, the DEP Commissioner caves in to the pressure and directly reverses the staff level decision. In other cases, the deal is not so obvious because the data, science and/or regulatory interpretations that formed the basis of the original decision are revised in a way to undermine the original decision (without leaving fingerprints of political intervention). These changes then force DEP to abandon the original decision and the result is that the the corporate interest prevails (some call this “Agency capture”).

Corporate interests and political DEP managers are enabled to do this under cover of secrecy. Deals are made behind closed doors. The public, the press, and environmental groups don’t even know good decisions were made by staff, never mind that they were reversed by high level managers due to political intervention. There is no transparency and accountability in the system. (Even without special political influence, DEP data show that over 95% of permits are approved by DEP. See latest DEP permit Report here.

The lobbyists, DEP managers and political appointees, and political dealmakers like things just fine this way.

Anti-environmental economic interests also benefit from a DEP staff that is intimidated and reluctant to blow the whistle, because DEP staff know that DEP managers retaliate and that whistleblower laws are weak. Few are willing to risk destroying their career and livelihood.

That’s why transparency at DEP is so important – and why we are working to enhance transparency at DEP.

That’s why whistleblower protections are so important – and why we are working to strengthen them.

That’s why ethical restrictions to limit political abuses are so important – and why we file ethics complaints and seek to strengthen ethics laws and their enforcement.

This is why we are fighting to stop the revolving door and influence peddling at DEP.

That’s why independent public science and scientific integrity are so important – and why we fight to defend them.

Well, every once in a while, this dynamic is reversed and the bright lights of media and public scrutiny make it very difficult if not impossible for the DEP Commissioner to cave in to political pressure.

I have a perfect example of how this all works:

In an August 20, 2009 letter to former DEP Commissioner Brad Campbell, DEP Assistant Commissioner Scott Brubaker made a scientific finding and determined that:

“[the Delaware Bay] is not appropriate for a large-scale wind turbine project due to “impacts to migratory and other bird populations.” and

“the Department has determined that we have, over many years of study and evaluation, developed sufficient information regarding the diversity, scope, and importance of avian resources in and around the Delaware Bay.  Based on these data, we conclude that, at this time, this area is not appropriate for a large-scale wind turbine project.” 

This is a fabulous decision. The Atlantic Flyway Council also opposed the project (see 7/28/09 letter) and the State of Delaware raised significant concerns (see letter)

Brad Campbell represents Delsea Energy, who are seeking DEP approval to put more than 100 wind turbines to produce more than 380 megawatts in the state waters of Delaware Bay.

The DEP rejection letter had been preceded by a closed door June 11, 2009 meeting with Senator Sweeney and DEP Commissioner Mauriello. Clearly, Campbell thought he had DEP support, in the wake of the June 11, 2009 meeting with Senator Sweeney and DEP Commisisoner Mauriello. After that meeting, Mauriello and Campbell had a private conversation that led Campbell to believe that he had DEP support for the project, or that DEP objections were minor or technical in nature.

DEP Commissioner Mark Mauriello

DEP Commissioner Mark Mauriello

Instead, the DEP August 20 rejection letter clearly took Campbell by surprise because in an August 25, 2009 personal email to DEP Commissioner Mark Mauriello, Campbell complained:

When you and I spoke, you said to expect a letter from land use suggesting a meeting to review technical concerns about the Delsea monitoring application”.Did I misunderstand, or has the Department’s position changed from what you described?…Is it really the Department’s view that private parties will not have the opportunity to collect data that might modify, rebut, or qualify F&W’s broad conclusions about the entire Bay?  I don’t want to protract a debate or impose unduly on your time, but the [August 20] letter is quite different from what I expected based on our conversation.”

So, there it is: a powerful Senator calls DEP on the carpet at his State House office in a private off the record meeting with the DEP Commissioner, the former DEP Commissioner and Delsea Energy.

But DEP scientists are not a party to the deal and object.

Campbell then objects to the DEP decision off the record in an email to the Commissioner.

Typically,  with this high powered political pressure brought to bear, such a decision would be reversed.

But now that folks are watching, let’s see what happens!

Oh, BTW – no way DEP Commissioner Mauriello would meet with Sweeney without the knowledge and approval of the front office – so Governor Corzine’s position on this project needs to be established. Will he back DEP scientists?

Legal Corruption – Senator Sarlo Shills for Builders

August 29th, 2009 No comments
Senator Sarlo (D-Bargen) Chairs Regulatory Oversight Committee (5/1/08)

Senator Sarlo (D-Bargen) Chairs Regulatory Oversight Committee (5/1/08)

The latest corruption scandal in NJ has received widespread press coverage and calls for reform.

Importantly, for the first time, corruption has been linked to its impacts on the environment (see: Bergen Record: Builders call the shots; and DEP E-Mails follow lawmakers request; Star Ledger: N.J. environmental groups call for investigation of DEP in light of corruption arrests; Courier Post: Groups call for Probe of DEP  and Star Ledger editorial: Consider CleanGreenNJ’s call for a DEP government cleanup (the CleanGreen NJ reform platform backed by the Star Ledger can be found here).

Yet, while the FBI “Bid Rig” investigation that led to criminal indictments of 44 state and  local officials – including 2 state Assemblymen – was ongoing, virtually the same corrupt game was going on during this extraordinary hearing of the Senate Legislative Oversight Committee on June 4, 2009

What went on during this Senate hearing is effectively as corrupt as the behavior of  Assemblyman Van Pelt (who bragged “DEP works for me” and that he “knew the “right guys,” at DEP and how to “work” the “channels.”) and Assemblyman Smith were criminally indicted for.

Follow the logic – 3 easy steps – and keep in mind that DEP “rules” are LAWS, so what we have here is a State Senator (and Mayor) pressuring public officials to allow violations of law:

Step #1 – DEP explains the large environmental stakes:

“We believe, and the current Rules reflect, that it would be poor public policy to extend sewer service at public expense to subsidize and encourage the development of resources the agency is charged to protect. Promoting the extension of sewers and to threaten endangered species habitats, unique and rare ecological communities, and wetlands just does not make sense to us.”

Step #2 – Senator Sarlo brazenly admits he privately intervened – on behalf of the economic interests of builders – to pressure DEP Commissioner to not enforce laws:

“We actually — this Committee met May 1 of 2008,  [I wrote about this hearing here “Builders Gone Wild”] and we had a series of hearings — on May 1, 2008 — with regard to these Rules [issues discussed here, “Builders Escalate Assault on Environment“]  The Rules were ultimately adopted in July of 2008 and went into effect April of  2009 — of this year. In February and March of this year, I had begun an open dialogue with the Department of Environmental Protection and their Commissioner, sharing some of the concerns of the Legislature with regard to counties following through and having their plans approved. And as we know, there are many counties, as we sit here today, whose plans are not approved. What is the impact on the building community with these plans not being approved?”

Step# 3 – DEP admits they caved into political pressure from Senator Sarlo and will not enforce laws:

 “Senator Sarlo, I know that many present here have expressed concern to you over the draft line, and I know that Acting Commissioner Mauriello has been in communication with you on this issue. Foremost, there was significant concern that the Department would withdraw all future sewer service area on April 7 for counties or on July 9 for municipalities if they did not submit their Wastewater Management Plans. The counties are crucial to the success of this project. We are bound to them in partnership. As you know, the Department has extended the counties’ submission deadlines, and will continue to work with them as necessary and appropriate to see this process through. We have no plans, at this time, to unilaterally withdraw a sewer service area from counties that do not have current Water Quality Management Plans.”(page 4-5)

 [Note: DEP put this all in writing, read the DEP concession letter – click here

Now, let’s take a look at the text of the hearing transcript for multiple examples of Sarlo pressuring DEP and cheerleading for builders during that hearing. Whose interest is Sarlo representing? The public? The environment? Your interests? Or the narrow economic interests of the builders, property owners, and investors that fund his dual office holding campaigns (as Mayor and Senator?)

  • SENATOR SARLO: Okay. And I just want to clarify that with Hudson being the only one approved right now — everything else pending, the other 16 pending, and the other four — the other three submitting their sewer authority maps, and Warren not participating at all — currently, today, if a plan is not adopted yet or approved by the Department, are we placing any moratorium on any projects that are currently pending before local boards — land use boards? (@ page 10)

 

  •  SENATOR SARLO: If there are any projects that currently have been approved, not being built because of the difficult economic times, and then they fall within these restricted areas, how are we going to deal with those projects?  (@ page 10)

 

  • SENATOR SARLO: Have we given the counties a definitive date? I know we’ve– And we appreciate the extension, and I think it’s the right thing to do from a public policy standpoint. But has a definitive date been provided? (@page 11)

 

  • SENATOR SARLO :… Let me clarify that. Make sure we get that clarified. I live in Woodridge, where I serve as Mayor. Somebody lives out of state, owns a piece of property in New Jersey, and their property has been clipped from the sewer service area. How is that property owner going to know that his property has been clipped from that sewer service area? He lives out of state and is not paying attention. He’s not going onthe Internet, he’s not paying attention to what’s happening in New Jersey, but he owns a valuable piece of property. (@ page 12)

 

  • SENATOR SARLO:  I mean, I have a concern that the perception here is, here is government coming in, taking away your rights as a property owner, and you have no say. You don’t have the ability to make a statement or make a say. If you’re sitting on a piece of property, perhaps it’s an investment property for down the road. And then you turn around to try and invest in it, you’ve made an investment, and now your property, in a way, has been devalued. So that is a concern of mine and I’m sure many others in the Legislature. (@page 13)

 

  • SENATOR SARLO: And just one final question: Are we concerned that– Is the Department concerned that some of these rules may provide local officials with kind of a back-door method to deny an unwanted project in their community? Could they use this to hang over — not-in-my-backyard type of syndrome on a project? Could they say, “Down the road they can amend it, and your property may fall within that area that’s going to no longer be a sewer service area. So we should deny your project now”? Is there any concern by the Department on that — that it could be abused by the local municipalities? (@page 13)

Daggett Ethics Agenda of Recent Vintage

August 20th, 2009 No comments

IMG_1046At a Trenton State House news conference today, Independent Chris Daggett released his ethics reform agenda.

As I reported previously, Chris Daggett served as Chairman of the DEP “Permit Efficiency Review Task Force” – (read the Daggett’s Report to DEP here) (see a summary of troubling Task Force Report findings and recommendations below).

Daggett was appointed to that position by the Administrative  Order issued by then DEP Commissioner Lisa Jackson. 

Daggett’s DEP Task Force had ethical problems from the outset. Several of its members represented clients that had ongoing regulatory issues or projects seeking approvals before the DEP, including Daggett himself.

This, at best, created the appearance of a conflict of interest, or actual conflicts.

State ethics laws prohibit creation of even an appearance of impropriety, as well as an actual conflict of interest:

(a) In our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people. Public officials must, therefore, avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated (NJSA 52:13D-12)

(3) No State officer or employee or special State officer or employee should use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others.

(7) No State officer or employee or special State officer or employee should knowingly act in any way that might reasonably be expected to create an impression or suspicion among the public having knowledge of his acts that he may be engaged in conduct violative of his trust as a State officer or employee or special State officer or employee

To remedy these problems, DEP Commisisoner Jackson was asked to make the Task Force deliberations tranparent and to restrict conflicts of interest – both she and Daggett failed to do so –
see:

NEW JERSEY TO CONSULT INDUSTRY ON ECO-REWRITES IN SECRET – “Efficiency” Task Force Members Not Barred from Self-Dealing with DEP

Trenton:

An industry-dominated task force to recommend an overhaul of state anti-pollution permits and policies will work in secret, according to an e-mail from the Department of Environmental Protection (DEP) Commissioner Lisa Jackson to Public Employees for Environmental Responsibility (PEER). Commissioner Jackson also rebuffed PEER recommendations that materials submitted to the task force are made a public record and that task force members be barred from lobbying DEP for their clients.

On March 25, 2008, New Jersey PEER Director Bill Wolfe wrote Jackson asking that task force sessions be open to the public, materials submitted to the task force be made publicly available and that task force members “be precluded from having any contracts, pending regulatory approvals, or financial relationships with the Department” during the 120-day life of the task force.

In a return e-mail on the evening of April 2, 2008, Commissioner Jackson denied all of PEER’s requests. Jackson stated:

“Public input can only occur once the Task Force has completed its analysis and compiled the group’s thoughts and recommendations. At that time, I will determine how to most effectively seek and obtain input from the public”; and

“I do not consider it necessary or reasonable to restrict members of the Task Force or their respective employers from having other business before the Department.


See this link for supporting documents, including the Jackson email reply to PEER request.

BTW, a very reliable source has told me that Chris Daggett owned contaminated property and has huge economic stakes in DEP brownfields, permitting, and toxic site cleanup issues he presided over and made recommendations on as Task Force Chair. I was also told, but have not confirmed, that Daggettt owned the parcel of contaminated Jersey City land that was specifically the land mentioned in the criminal complaint of Assemblyman Harvey. Harvey was bribed to pressure DEP to issue approval of cleanup plants to allow construction of a day care center and public housing on highly toxic chromium waste site in Jersey City.

Summary if Task Force Report

Independent Chris Dagett was just endorsed for Governor by the New Jersey Chapter of the Sierra Club. So, in an effort to educate voters, we thought we’d look at his most recent environmental accomplishment as Chairman of the DEP “Permit Efficiency Review Task Force” established by former DEP Commissioner Lisa Jackson. Readers can find all the relevant original documents at these links

1. Public Announcement by DEP Commissioner Jackson [link]

2. Task Force Final Report [link]

3. DEP Implementation plan [link]

Report Lowlights:

1. On “doing less with less”

“In this time of fiscal crisis, the challenge, before the DEP is to develop different approaches to managing, to consider doing less with less, recognizing that this must be done without compromising environmental protection or public health.”

2. On Privatization


In an output/performance-driven system, the DEP would focus on the efficient execution of inherently governmental functions and explore using outside assistance, advanced IT tools or both, to complete the straightforward tasks that are not necessary to be done by government. To accomplish this, a major change must occur in the way that scope and responsibility are allocated within the DEP. In short, if the DEP is ever going to reach a high level of efficiency and effectiveness, the goal for the DEP should be to determine which environmental services are essential and which can be eliminated; which can be consolidated and which cannot; which must be provided by government and which can be delivered by outside vendors or through advanced IT tools, or both.

3. On rewriting history to mask the real agenda of the Task Force –

The original composition of Task Force was established in Jackson’s Adminsitraive Order.

Later, the composition was expanded to include environmental, community and public interest representatives, but only AFTER strong public criticism of its failure to represent public interests (glad to provide that criticism to document the chronology):

The members of the Task Force included representatives of residential and commercial developers, environmental organizations, land use planning firms, nongovernment organizations, housing advocacy groups, business and industry, the environmental justice community, counties, municipalities, public utilities authorities, engineering firms, the EPA, the Governor’s office and environmental consulting firms. Three were former cabinet members: DEP, Transportation and Community Affairs. Exhibit 2 is a list of the members of the Task Force and their affiliations.

4. On ignoring the only pro-environment objectives, exposing them as green cover (notice the use of “shall and “may” and the limit in scope to “incentives” (aka subsidies) as opposed to “regulations” which apparently are taboo)):

 b. The report of the Task Force shall also provide recommendations for operational, policy and regulatory changes at the department to provide incentives for and to advance sustainable development projects that contribute to achieving statewide greenhouse gas limits, economic growth opportunities in urban areas and meaningful affordable housing and that, as a result of their location and design, have little or no impact on public health and safety, the environment or natural resources; and

c. As part of its deliberations, the Task Force may also identify possible statutory changes that would result in enhancing the DEP’s timely and efficient service or the DEP’s ability to provide incentives for sustainable development projects that contribute to achieving statewide greenhouse gas limits, economic growth opportunities in urban areas and meaningful affordable housing and that, as a result of their location and design, have little or no impact on public health and safety, the environment or natural resources.”

Where are these pro-environment recommendations in the Report? Not there.

5. On the use of Orwellian euphemism to mask a pro-business anti-environmental agenda:

 In short, the Commissioner formed the Task Force out of a concern that the current permitting process cannot keep up with demand. The Commissioner asked the Task Force to help her in making the permit process more timely, predictable, consistent and transparent to the regulated community [but not to the public?] and to do so at the lowest possible cost to taxpayers while enhancing New Jersey’s environment.” 

6. On confirming the fact that DEP rubber stamps most permits – only the really bad projects need “streamlining”

 Overall, 90 percent to 95 percent are approved, often with substantial changes as a result of DEP input, with the remainder being denied or withdrawn. The permit decisions are usually made within the statutory timeframe, which varies from program to program. The permitting system breaks down most frequently when there are multiple permits for a single project, when projects are large in size and when impacts to the environment are complex and potentially extensive.

7. On how the Big Boys in the Private sector know best – Task Force say DEP should emulate the large polluters who off-shored jobs and deindustrialized the US manufacturing base:

 Overall, there is no single silver bullet that can fix the various permitting problems of the DEP. Rather, what is needed is similar to the approach that enables certain manufacturing companies to stand out in their fields. The success of these companies is rooted in rigorous and unrelenting attention to all of the little details of the manufacturing process, or in the DEP’s case, the permitting process. The successful manufacturing companies have created a work culture with a bias toward action“ a performance-driven environment “ and have empowered its employees to perform.

8. On providing a rationale Commissioner Jackson relied on to privatize DEP science (i.e. Science Advisory Board) and abolish the Division of Science and Research – the “study group” was never formed, nor was the mistaken recommendation to “restore the stature of the Office” implemented (BTW, Science and Research was a Division at the time of this Report, a revealing error. The Division was downsized to an Office):

“In the course of Task Force deliberations, two issues arose which were outside the charge of the Administrative Order but which directly impact the efficiency of the DEP. The first is the quality of science and research that provides the underpinning of the policies, guidance, directives and regulations of the DEP. Through the first two decades of the DEP’s history, the Office of Science and Research was one of the most highly regarded programs in the country. However, during the past two decades, budget cuts and reorganizations have undercut the quality of the program. While the Office still does excellent work, the staff simply cannot keep up with the breadth and scope of DEP needs. Accordingly, the TaskForce recommends that the DEP convene a study group that examines this issue and addresses possible ways to restore the stature of the Officewith a particular focus on collaborative efforts with academic research institutions and outstanding practitioners to minimize or avoid significant budget and staff increases.”

DEP Involved in Corruption Scandal

July 27th, 2009 No comments
DEP Headquarters, Trenton, NJ

DEP Headquarters, Trenton, NJ

NEW JERSEY ENVIRONMENTAL AGENCY AT HEART OF BRIBERY SCANDAL — New Rules Needed to Ban “Pay-to-Play” and Protect Staff from Strong-Arm Tactics

 Washington, DC — Last week’s indictment of 44 people, including several New Jersey officials and two state legislators, underscores that “pay-to-play” is alive and well in the Garden State, especially within its Department of Environmental Protection , according Public Employees for Environmental Responsibility (PEER). Today PEER proposed new rules to end the closed door dealings within DEP that fuel corrupt practices and put its professional staff in an untenable position.

To facilitate development projects, state legislators pressure DEP to improperly approve permits, sign-off on incomplete clean-ups and shelve enforcement actions. Typically, legislators deliver their messages to the DEP Commissioner or the Assistant Commissioners, who in turn direct staff. As one of the indicted lawmakers, state Rep. Daniel Van Pelt, who sits on the committee overseeing DEP, bragged to the FBI confidential informant, he knows the “right guys” who “work” the “channels”.

“The back channels into DEP need to be shut down,” stated PEER Executive Director Jeff Ruch. “As long as DEP does its business behind closed doors, corruption will continue to blossom.”

Today PEER is proposing transparency rules for DEP that are virtually identical to ones which the agency rejected when PEER first proposed them in 2007. These rules would provide:

  • Notice of Meetings. DEP convenes closed-door meetings with lobbyists, legislators and other insiders with no public attendance or publication of meeting agendas. The agency defends this secrecy as a matter of “executive privilege and the deliberative process privilege”;
  • Publication of Top Officials’ Calendars. The DEP Commissioner and top deputies routinely make decisions on enforcement and other pollution control policies in meetings with legislators and corporate executives, often from the same companies charged with violations. DEP shields appointment calendars to protect “the privacy interests” of attendees; and
  • Repeal Gag Orders Forbidding Staff from Talking to Media and Public. Under current DEP rules, agency scientists and other specialists are barred from speaking without prior approval from the agency Press Office. DEP says this is needed to enforce the chain-of-command.

“A big problem in New Jersey DEP is that the professional staff has little recourse when confronting management orders to less than faithfully execute the law,” Ruch added, noting that the state’s whistleblower law does not protect employee disclosures about threats to public health, manipulation of science, mismanagement or ethics violations. “Sunlight is the best hope for deterring sleazy deals.”

Political influence over DEP is now so deep that it is an accepted fact of life. For example, in a July 14, 2009 letter, DEP Acting Assistant Commissioner Scott Brubaker explained why he was setting aside water anti-pollution rules because legislators had introduce a bill to bully DEP to bend over for a favored project:

“The Department is also under pressure from the development community, which fears that the Department will unilaterally remove sewer service areas. Recently, legislation has been introduced that would extend the submission deadline…Together these added burdens would preclude the Department from adopting any new or updated wastewater management plan for the foreseeable future. Any Department effort to withdraw sewer service areas would encourage this legislation.”

“So long as DEP succumbs to political pressure, it invites that pressure,” Ruch concluded.

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Examine the DEP role in latest bribery scandal

Read the PEER petition

View the DEP letter acknowledging political bullying

Look at DEP rebuff of transparency rules in 2007

See the full text of the federal criminal complaints