The Dialectic of Red Tape (or Waive This!)

Radical Proposal an Assault on the Environment, Rule of Law, and Democracy

[Update #5 – 9/21/11 – DEP “waiver rule” based on Christie EO #2, finally triggers legislative oversight and gets slammed: Senate panel moves against Christie environmental plans

Bill Wolfe, head of New Jersey Public Employees for Environmental Responsibility, predicted that every applicant before the DEP would apply for a waiver, increasing the burden on an agency trying to focus its resources on the biggest issues.

“This [waiver] makes the DEP workload go through the roof,” said Wolfe, a former employee of the agency.

Update # 4: 9/1/11 – AC Press killer editorial: DEP regulations / Kill the waiver rule

In giving itself the discretion to decide which regulations it will enforce, the DEP opens the regulatory process to a potential onslaught of lobbying and litigation. It creates a situation where well-connected developers could receive waivers out of public view, and it means politics could play a greater role than science when environmental decisions are made.

Lawmakers have already allowed for waivers in many environmental laws. In each case, the Legislature has decided that a waiver may be appropriate in specific situations. That is how the system should work.

If the Christie administration thinks that specific environmental regulations are too burdensome, it should propose revisions and hold public hearings.

The bottom line is that the DEP simply doesn’t have the authority to give itself this kind of power. And the Legislature should move immediately to remind administration officials of that.

Update 3: 5/10/11 – File this one under “N” for “No kidding”: NJ’s business climate woes are perceptual, not real, says state marketing head

Update 2 – I got a hoot reading this this morning – I met with and warned my colleagues about exactly these problems when DEP began the Staekholder processes, over a year ago: Environmental groups complain of being outnumbered by ‘special interests’ at DEP meetings

Update 1: and while we’re on the topic of The Enlightenment, here’s a real enlightened statement by Governor Christie. Christie goes all Spiro Agnew on us, revealing his deep ignorance, anti-intellectualism, and disdain for Democracy (which he calls a “circus”):

“It never ceases to amaze me” said the Governor, “the outrageous things that liberal academics in ivory towers are willing to say to try to preserve their failed status quo- and that is disgusting…he should be ashamed of himself.”

Christie added “but I’m not the least bit surprised, because I’ve been dealing with these type of liberal ivory tower academics who are completely in the tank for their liberal causes for my entire career…I guess they wanted to give the liberal academic in the ivory tower a chance to grand-stand – to try to vilify the administration…I am doing what I promised I would do to the people of New Jersey, which is examine every area of government that I could, to try to find savings where services could still be provided, and to keep their taxes lower…the public understands that these circuses they hold down at the Legislature – nobody cares, nobody.”

We started writing this post about DEP’s proposed “waiver rule” last Friday, but were interrupted by the Newsflash that Christie’s DEP’s supported fracking, despite public demands that the current moratorium by the Delaware River Basin Commission remain in place.

Ironically, just like Obama’s support for off shore drilling just weeks before the BP Gulf blowout, DEP’s support came just days before a fracking blowout, forcing Chesapeake Energy to suspend all fracking in Pennsylvania.

I then went on a General Strike during Earth Week to avoid all the bullshit (but Todd Bates got the context right: Environmental disasters cast pall on Earth Day).

Anyway, in the intervening time, several news stories and scathing editorials were written (“DEP Waiver – A Foolish Proposal”  and “As they like it: if DEP gets to choose when to apply the rules, more will get bent“ , so I thought I’d go in a different direction today.

Let’s examine the waiver rule from what I will call the lense of the Dialectic of Red Tape.

Dialectical reasoning is a very old idea, the objective being the pursuit of truth via competing rational arguments.

But modern philosophy has given the dialectic a different meaning, having to do with the nature of the historical process and reality itself.

I certainly am no philosopher, but my superficial understanding is a dialectical dynamic unfolds when an idea contains contradictions, which ultimately become the seeds of its own destruction.

Here’s a superb illustration that can be crudely applied to Christie Red Tape/waiver thinking, from Morris Berman’s “The Twilight of American Culture” (a great book I I just happened to re-read yesterday – boldface and links are mine):

The matter of “what went wrong” has intrigued a number of great twentieth century thinkers and critics of technology, … but it probably received its most detailed expression in the work of the Frankfurt School for Social Research – that of Max Horkheimer and Theodore Adorno in particular, and its American representative, Herbert Marcuse. In The Dialectic of Enlightenment, … [they] argued that Enlightenment thought slowly got transmuted into scientism and positivism. In this scheme of things, everything got objectified; only that which was measurable and empirical was regarded as real. The logical endpoint of this is a purely technocratic Weltanschauung, the vision of a totally administered world. The original freshness and strength of Enlightenment thought was its critical element; but as it became a tool of the existing social and political order, it started to convert the positive values it was elected to defend into “something negative and destructive”. So if political freedom is inseperable from Enlightenment thought, that thought nevertheless contained the seeds of a reversal. For modernity eventually issued out into the commercial society, which became a metaphysics in its own right. “The consumer”, concluded Horkheimer and Adorno, “becomes the ideology of the pleasure industry, whose institutions he cannot escape.” And in fact, utilitarianism is the real, and pervasive (if invisible) philosophy of American society, a society in which very little has value in and of itself. (@page 107)

… Horkheimer and Adorno … make a distinction between a “good” Enlightenment and a “bad” one. The former is the Age of Reason, the world of Hume and Voltaire, which gave us our notions of critical analysis. The latter is the modern obsession with quantification, control, and the domination of the natural world. Human power over nature increased – we call this “progress” – but so did alienation from our natural environment and from the world of meaning and value. This alienation, in turn, impelled us to seek more power, which led to more alienation, and so on. “Progress” finally became an exercise in frustration, what the German sociologist Max Weber characterized both as the “disenchantment of the world” and the “iron cage” of industrial society. Underneath it all  … is an unconscious neurotic fantasy, the dream of absolute power over everything. In our own time, it means that cans of Coca-Cola must penetrate into the most remote villages of Africa, along with satellite television and Nike running shoes.” (@ page 114)

So lets look at the Christie Administration’s waiver rule as the result of a dialectical process.

The DEP’s radical “waiver rule” proposal is the logical culmination of the Christie Administration’s policy.

That policy – hopefully containing the seeds of its own destruction – is designed to serve “the commercial society”, whose members are viewed as “customers” by DEP Commissioner Martin, a man obsessed with power and control, who is alienated from and devoid of any substantive understanding of the natural environment.

It is driven by cost benefit analysis, an amoral technique of quantification that knows only narrow economic values, a fundamental expression of utlitarianism.

[Update: the waiver proposal is riddled with contradictions. Examples:

After all, if you see the Governor as a modern King, consider law and regulation as barriers to economic development, and view democratic processes as allowing the rabble to meddle in private corporate affairs, what could be better than giving the DEP Commissioner sole power to waive any rule?

In Christie Bizarro world, we are a Nation of Men, not laws!

In one swoop, it eliminates the problems of government oversight and a meddlesome public, and without all the headaches of legislative authorization and careful regulatory reform, which are a lot of work!

The Christie policy is based on a fetid stew of warped values and priorities, false premises, and bad information.

The key features of what I dub the Christie ideological stew are:

• market fundamentalism (“free markets” make better choices than government intervention);
• anti-government and anti-regulatory animus (government “red tape” and regulations stifle innovation, increase costs, and slow economic growth);
• rejection of the public sphere and commons (the “public” is a parasite and drag on the productive private class. The commons should be privatized to get rid of free loading parasites);
• perverse values and priorities (short term economic gains are more important than preservation of the remaining vestiges of the natural sphere or protection of “public health”.
• Government should promote economic activity (e.g. privatization) and get out of the way of economic “progress” (e.g. deregulation); and
• DEP over-regulation is the cause of economic recession and is hampering private investment and recovery

Aside from a few slogans (like “culture change at DEP” and “common sense regulation“), the Christie Administration has made no real effort to mask this policy.

As we have rigorously documented here for over 18 months, it began in the 2009 Gubernatorial campaign platform.

Following the election, it was expanded upon in the DEP Transition Report and codified in Executive Orders.

The programmatic road map was further fleshed out in the Red Tape Report.

And for the current phase, former Lt. Governor staffer, John Hutchinson, who wrote the Red Tape script, has moved into DEP to implement those policies.

None of this is any secret – and it should not have taken the NJ environmental community 18 months to wake up and understand the nature and magnitude of the threat.

After over a year of challenging Christie policy, back in January, we warned that “Shoes Drop in 2011, As DEP Implements Christie “Regulatory Relief” Policy.

One of the “shoes” I included on the list of “Kills in Progress” in 2011 was the waiver rule DEP held a public hearing on yesterday.

For the last 18 months, instead of circling the wagons to mount a defense against the Christie onslaught, they have played various naive and/or selfish political games.

Instead of educating the public and media, cultivating legislative support, and recruiting activists, they have wasted time and resources in useless insider “Stakeholder processes”.

DEP even held a Stakeholder process on the waiver rule – that’s like consulting lambs about the design of the slaughterhouse.

As a result, Christie and his hatchet man DEP Commissioner Bob Martin, have built momentum and a reservoir of credibility. Virtually none of their warped values, perverse priorities, or flawed premises have been challenged or exposed. In fact, they have been reinforced and are now considered accepted wisdom in many quarters of the legislature, media, and court of public opinion.

While it is a good sign that a dialectic dynamic of opposition finally may be emerging as a result of the gross over-reach of this waiver proposal, why has it taken so long to emerge?

It was far too long in coming, but the battle lines appear now to have been drawn.

We should never have arrived at this place. I fear great setbacks are on the horizon.