Lessons for NJ Legislative Taskforce Developing Natural Resource Damage Standards

Corruption Of Environmental Agency Regulation Not Limited To Trump EPA

Dear Chairman Smith and Members of The Senate Environment Committee:

I am writing to convey recommendations for consideration by Senator Smith’s Task Force on developing Natural Resource Damage [NRD] standards.

As you know, I have long worked on various aspects of NRD policy, before the legislature and NJ DEP and other arenas.

My recommendations below seek to assure that the NRD Task Force considers not only methodologies to monetize NRD injuries, but broader aspects of an effective regulatory policy, including media specific DEP regulatory standards for NRD; ecological standards and wildlife criteria; removal of current legislative barriers to DEP’s adoption of such regulatory standards; and scientific integrity and ethical standards to limit undue influence on  and improper access to DEP.

The NY Times has done a series of superb investigative journalistic reports that document the total corruption of the Trump EPA’s entire regulatory apparatus, particularly under former EPA Administrator Scott Pruitt. Pruitt, who was forced to resign in disgrace, was so corrupt that industry virtually took over EPA.

But even after Pruitt’s departure, the corruption continues.

Yesterday, the Times told the story of former oil and gas industry lawyer William Wehrum, who now heads Trump EPA’s air office, see: As Trump Dismantles Clean Air Rules, an Industry Lawyer Delivers for Ex-Clients

WASHINGTON — As a corporate lawyer, William L. Wehrum worked for the better part of a decade to weaken air pollution rules by fighting the Environmental Protection Agency in court on behalf of chemical manufacturers, refineries, oil drillers and coal-burning power plants.

Now, Mr. Wehrum is about to deliver one of the biggest victories yet for his industry clients — this time from inside the Trump administration as the government’s top air pollution official.

But such corruption is not limited to the Trump administration or the US EPA.

I’ve long documented similar corruption of the NJ Department of Environmental Protection’s regulatory policy – under both Democratic and Republican Administrations.

Here’s one particularly timely example, where we produced a smoking gun letter from the Chemical Industry Council to the NJ DEP.

The CIC letter openly thanks Commissioner Campbell and Assistant Commissioner Hahn – two DEP officials with stellar reputations in environmental policy circles – for killing proposed toxic water quality standards, commonly referred to as “wildlife criteria”.

Take a look at the chemical industry’s thank you letter:

Interested readers can get complete background information in this press release and linked documents.

Of particular importance and relevance right now is the industry’s reference to “Natural Resource Damages (NRD) implications”.

The CIC industry lawyers knew that DEP’s adoption of “wildlife criteria” (i.e. water quality standards for toxic chemicals that harm wildlife) would have huge impacts on NRD enforcement, i.e. numeric regulatory standards would quantify and thereby make it far easier for DEP to determine whether NRD injuries had occurred, how widespread those injuries were, and how much the chemical industry would have to pay to restore natural resources and compensate the public for those injuries.

Simply put, a violation of a very low DEP regulatory standard in water, sediments, soil, fish or bird or wildlife tissue would trigger and facilitate enforcement of NRD damages.

Recall the Christie Administration’s controversial $225 million settlement in the Exxon case. The Corzine DEP had sought $8.9 billion in NRD damages.

Widespread criticism of the Christie settlement of the Exxon case prompted Senate Environment Committee Chairman Bob Smith to establish an NRD work group to make recommendations of how to calculate the economic value of NRD injuries.

As NJ Spotlight recently reported:

Another problem with the [NRD] lawsuits is the state lacks any objective standards to monetize damages to New Jersey’s natural resources. Sen. Bob Smith, the chairman of the Senate Environment and Energy Committee, set up a legislative task force of industry experts and environmentalists to try and come up with a framework to establish such standards.

The abandoned “wildlife criteria” and similar other numeric regulatory standards to trigger natural resource injury are a crucial part of the framework under consideration.

Therefore, in light of this history, we urge the “task force of industry experts and environmentalists, in addition to economic methods to “monetize” NRD injuries to:

1) include reconsideration of wildlife criteria previously abandoned by DEP;

2) the scientific methodology  and eco-toxicology DEP relied on to develop those standards;

3) update, expand the scope of, and promulgate current DEP Ecological Screening Criteria as enforceable regulatory standards to trigger NRD injuries;

4) consider necessary legal and regulatory changes required to remove current legal barriers and enable DEP to adopt those kind of ecological standards to hold toxic polluters accountable for NRD; and

5) scientific integrity and ethical standards to restrict undue and/or improper industry influence on DEP.

For additional background on those issues, see:

• Gov. Christie Killed Ecological Cleanup Standards At Heart Of Exxon Deal

• Ecological Standards Ignored For 16 Years – Polluters Dodge Billions In Liability

• Bombshell: Bungling By DEP Led To Exxon Deal

• Natural Resource Injuries Are Not “Like Pain and Suffering” 

• Christie Comptroller’s Office Rejected Request To Investigate DEP Natural Resource Damage Program

• NEW JERSEY FORFEITS HUNDREDS OF MILLIONS IN POLLUTION DAMAGES