Are There Bad Faith Dealings on “Forest Stewardship” Bill?

 Legitimate Differences in Intepretation? Or Misleading Statements?

The Bill’s Supporters Must Clarify – In Writing – Before Any Asssembly Vote Today

The Star Ledger finally reports on the recent development on the controversial “forest stewardship” bill, which is scheduled for full Assembly floor vote today (see: Bill up for vote in N.J. Assembly would allow logging on state land).

After reading the Ledger story, there seems to be, at best, a serious misunderstanding of the bill (which I doubt), or flat out bad faith dealings by the sponsors.

[and this is stated as the scientific rationale for the bill:

The idea, on its surface, is simple: Clear out trees from overcrowded land and open up the forest canopy, letting in sun light and spurring new growth.

Surely, the sponsors know that more forest disturbance and sunlight on the forest floor create more edge habitat and bring more invasive species, respectfully, that make the deer population larger and the browse problem worse. That’s why they passed the Highlands Act, to preserve large contiguous tracts of forest, severely restrict any forest fragmentation and disturbance, and maximize canopy cover. WTF are they thinking? Or are the just being spun by the foresters and the mitigation whores and covertly seeking to attract a timber industry to NJ?]

The misunderstanding revolves around three major things (which should not be in doubt this late in the game):

• the role of the Forest Stewardship Council and FSC standards and certification;
• exactly how the public is involved in forest planning and management decisions; and
• whether the various protective environmental  “standards” in the bill are enforceable

All of these issues are impacted by a recent change in law recommended by Gov. Christie’s “Red Tape Commission”, which flat out prohibits DEP enforcement of what are known as “Guidance documents” (see P.L. 2011, c. 215).

This law applies, because all the technical standards that serve as safeguards, including the FSC standards and certification process, are left to the DEP’s discretion and implementation of them will be via what are legally the equivalent of “Guidance documents”. The bill does not require that DEP adopt regulations to administer the forest stewardship program or that the safeguards in the bill be adopted as regulations. Without regulatory status, those safeguards are purely voluntary and left to the DEP’s discretion.

[Example: DEP has a “by invitation only” stakeholder process. DEP has a list of friendly supportive “stakeholders”. DEP used this list and met secretly with them in negotiating this bill. The public was excluded. Is DEP going to rely on the same sham for public involvement in forest management plans? DEP could never get away with that in a regulatory permit program.]

According to the Ledger story, the sponsors insist that the FSC standards and certification will govern the DEP’s forest planning and management process.

But many who’d objected previously now support the bill or have remained silent as it moved through committees in the Assembly. McKeon said that’s because he made numerous changes, the biggest of which was adding a requirement the program meet standards set by non-profit Forest Stewardship Council and that DEP seek certification from it.

But, as I wrote last week, DEP has rejected the FSC certification, and nothing in the bill mandates that DEP comply.

Here is DEP’s official position on FSC:

While we respect the FSC and recommended incorporating FSC standards into the legislation, this mandatory certification is an un-nececessary and costly requirement. The DEP is the steward of NJ’s environment. We do not need our work validated by somebody else. Moreover, this un-necessary requirement adds a significant financial cost to the program

The Ledger reports that the sponsors met to discuss these issues, and are pointing the finger at the Office of Legislative Services:

He and the Sierra Club’s Jeff Tittel met last week with McKeon and state Sen. Bob Smith (D-Middlesex), another primary sponsor, to ask for changes. The lawmakers, relying on guidance from the Office of Legislative Services, said the changes were unnecessary.

My bullshit meter is pinned.

I virtually guarantee that the sponsors can not produce a written OLS opinion to that affect. I’d be glad to eat my words, but am sure they won’t. So, Smith and McKeon, consider this a public challenge.

Since the inception of the bill, I have testified in support of [the need for regulations] and have advocated that the bill include regulatory standards.

The sponsors fully understand the issues. They rejected a regulatory approach and now are embarrassed to defend a voluntary bill, especially after DEP rejected independent FSC overnight.

They have refused to require that DEP promulgate regulations because of two reasons:

1) the forestry industry strongly opposes regulation of logging practices; and

2) after 4 years, the DEP still has failed to promulgate “forest stewardship” standards and regulations required under a 2009 law for private lands. (See P.L. 2009, c. 256).

The current forestry bill provides that the DEP public lands “stewardship plans” be “consistent with” these private land regulations required under PL 2009, c. 256.

The sponsors know that the term “consistent with” is not legally equivalent to the term “comply with”.

So, if this is the alleged regulatory hook, it is no hook at all, its a fig leaf.

They played the same BS game with the provision that the plans be “consistent with” the Highlands Act. What does that mean? Who determines “consistency” and how?  On what basis? Do they think we are stupid?

Plus, DEP has failed to propose these regulations so we have no idea if they are adequate safeguards in them. Rules just don’t exist. Virtually every major DEP program operates under rules. Why should logging of public lands be any different?

Instead of confronting DEP about this failure to implement the 2009 law and adopt regulations, Senator Smith has dodged a confrontation and refused to repeat what he views as a mistake.

At any rate, at this point, the conservation groups the Ledger claims still support the bill – after DEP rejected FSC – must public clarify their position, as I urged in an open letter to them.

Here’s what the Ledger says: (but fails to note that DEP rejected the FSC certification that garnered their support):

The measure has received support from the New Jersey Conservation Foundation, Pinelands Preservation Alliance, the Highlands Coalition, New Jersey Farm Bureau and the Audubon Society. “All of the major environmental groups are a part of signing onto this,” McKeon said, noting two big exceptions.

Those groups must speak out publicly, and right now.

Here’s my letter today to Speaker Oliver:

Dear Speaker Oliver:

I request that you postpone the scheduled vote today on A2837 (“Forest Stewardship”).

In its current form, the bill lacks adequate safeguards to require public involvement in forest management planning and decisions and that any commercial logging in our state forests be done in an environmentally responsible way to protect NJ’s natural resources and water quality.

The sponsors promised to draft additional amendments that would provide those safeguards, to assure that the voluntary standards in the bill could be enforceable.

This is made necessary due to a recent change in law that prohibits the enforcement of Guidance documents (see P.L. 2011. c.215) http://www.njleg.state.nj.us/2010/Bills/PL11/215_.PDF

Additionally, conservation groups only agreed to support the bill under the assurance that the independent Forest Stewardship Council would certify state DEP forest management plans and oversee the DEP program.

However, in a last minute June 10, 2013 letter to Chairman Albano, DEP rejected the FSC certification model.

The bill does not mandate that DEP adopt FSC standards and certification program, so they will not do so.

Given that FSC certification was the basis for conservation groups support and that is now gone, good faith dealing requires that the bill beheld.

I appreciate your favorable consideration.

Bill Wolfe, Director, NJ PEER