WolfeNotes.com

Reliance on Local And County Government For “Sustainable” Solutions Is Misguided

State Abdication Leaves Towns On Their Own Against Corporate Power

NJ Spotlight reports today on a planning study “Light Industrial Site Assessment” in Warren County, NJ – ironically funded by the NJ Highlands Council – that highlights threats of major warehouse development to rural NJ, see:

• ‘Warehouse sprawl’ has some NJ towns considering acting together on zoning

For critical sources, the story relies on a local “sustainable development” group and the corporate dominated planning group NJ Future.

Regular readers here know that for over a decade, I have strongly criticized those groups for abandoning effective state, regional and DEP planning and regulatory powers for reliance on local governments, private market solutions, and ineffective feel good voluntary individual measures, slogans, and token gestures (aka the Neoliberal corporate agenda).

Those criticisms have only grown more valid as the climate emergency highlights the need for and validates longstanding principles and practices of traditional regional land use planning and regulation (to reduce energy consumption, preserve prime agricultural lands/soils and forests, protect water resources, etc).

While we need planning, government intervention, regulation, and sound land use now more than ever to respond to the climate emergency, the environmental groups effectively have abandoned the “sprawl” issue and left the field to misguided groups and neoliberal strategies. (The notion of “planning” is largely foreign territory to most environmental groups, and “regulation” has almost become a dirty word. Similarly, as a result of vanishing advocacy, public support has waned and government capacity has been severely eroded.)

Without rehashing all that, for the context of this Warren County warehouse story, let’s just that that certain important dimensions of the story were left out, while the recommended solutions were completely wrong.

For example, right on page one of the Report, we find this statement:

Any Violence Will Be Fleeting

Protests Will Be Crushed

I Hope I Am Wrong

[Updates below]

[Update: 2/14/21 – Denoument: Trump coup defeated – will it be investigated and prosecuted? Listen to the best analysis I’ve seen:

• Trump’s Treason and McConnell’s Mayhem – Paul Jay ~~~ end]

I sense that Trump has already repeatedly laid the foundation for his claim of voting fraud and effectively labelled and demonized his opponents as either violent anti-fascists (ANTIFA), rioters, looters, BLM racists, Marxists or Socialists. He has also cultivated the institutional support of the police, the courts, and the US Justice Department, as well as the backing of violent militia’s, hate groups, and other Brownshirts. The military has been manipulated into a position where they have pledged that they would stand down in any “political” dispute and honor Constitutional outcomes (e.g. Supreme Court decisions, State Legislative actions, police deployments, etc).

The media has largely failed to be explicit about how all this is designed to steal the election and formally impose a Fascist State. They have been diverted by so many other Trump abuses and Tweets. So have the Democrats and most progressives. And very few have called out Trump as a Fascist or defended and supported the various street based protesters.

So, all that paves the way to 2 alternative coup scenarios:

1) The 12th amendment route: Swing States with Republican legislatures (e.g. Pennsylvania, et al) claim fraud, reject the vote counts for Biden, and select Trump electors. This results in neither candidate getting the necessary 270 electoral college votes, which throws the election to the House, where Republicans have 26 State delegations. TRUMP wins, and its all legal. (The Atlantic story outlined this scenario, while Greg Pallast has been warning about it for months). OR

2) Trump (using AG Barr, Republican Party lawyers, & loyal State Attorneys General & State officials) challenges state vote counts. The challenges wind up in the Supreme Court. Justice Kavanaugh has already laid the groundwork for relying on State LEGISLATURES over all other state powers (Courts, Governors). Chief Justice Roberts will defend the integrity and legitimacy of the Court, with Justice Barrett casting the deciding vote in a 5-4 decision. Trump wins, and it’s all legal.

The only way to stop this is for there to be massive and sustained nation-wide non-violent uprisings in the streets and general strike. Shut down the economy – as Mario Savio said “throw your body on the gears”.

I don’t think the Democrats and the general public have the spine for that.

There is no organized and powerful labor movement to make a general strike a reality.

The Left is small, disorganized, and has no discipline. The few real anti-fascist are local and similarly disorganized and their anarchist tendencies oppose discipline and organization. Many will be sucked right into street violence and spur police suppression or reaction by violent and murderous well armed Trump Brownshirts.

If there are sporadic uprisings, an already planned national coordinated campaign by local police, who clearly favor Trump, will crush local protests quickly, much like they crushed Occupy.

Trump will use militarized federal police forces (ICE, Border Patrol, DHS, etc) and maybe even nationalize the National Guard in a handful of states where protests last a week or so.

Pro-Trump Brownshirts will be deployed in some places and terrorize people while police stand down (just like the Trump Train in Texas and other weekend events).

Congressional Democrats will hold press conferences, but do nothing with legislative power.

The press will editorialize but be called Fake News by Trumpers.

Protests that are not violently crushed will fade out in 2-3 weeks.

There will be a huge  Pink Pussy Hat 2.0 protest in DC on Inaugural Day – it will be violently suppressed.

There will be no bottom to what Trump and fellow Republicans will do in second term. As they say, all options will be on the table.

Wolfe – 11/3/20

Flagstaff Arizona

PS – I wonder if this post will past through Twitter censors?

[Update – 12/28/20 – Technically, it ain’t over yet. Ted Rall’s scenario makes several of the points I made in the original post below, including the importance of a neutral (non-interventionist) Pentagon and US military, the role of local cops, Trump’s control of federalized police forces and the “MAGA goons”. There’s a Jan. 6 DC Trumper rally by “Women For America First” – which could be just an ironic spoof on the Pink Pussyhat Resistance, but one never knows. see:

• Trump Is Still Plotting a Possible Coup

[Update – 11/21/20 – This is the first time I’ve read of this July 2020 US Supreme Court unanimous decision, written by Justice Kagan, that absolutely destroys Trump’s strategy to flip Republican states by elector slates that contradict the popular vote (h/t/ Digby).

It is incredible that all the news coverage that has highlighted that possibility has failed to report this Supreme Court decision, which very clearly makes that strategy impossible.

In other words, the Trump coup via flipping Republican State electors was basically always bullshit that was hyped by the media (from The Atlantic article to Greg Pallast to The NY Times and WaPo).

I fell for it too, because I read that same media – without doing my own research.

How many times do we have to get duped by media? This nis actually worse than the reporting on Russia-gate. ~~~ end update.]

Update – 111/19/20 – I guess you could say we called this one! The NY Times reports today:

President Trump’s false accusations that voter fraud denied him re-election are causing escalating confrontations in swing states across the country, leading to threats of violence against officials in both parties and subverting even the most routine steps in the electoral process.

Update: 11/11/20 – NYT columnist Thomas Edsall identifies a third option to my prior two: under “continuity of government” law, Trump has extraordinary emergency powers he could invoke, including Marshall law. ~~~ end update]

Update: Tuesday AM, 11/10/20 – Just as we expected, the NY Times reports that Republicans and AG Barr are lining up behind Trump’s attempted coup:

Senator Mitch McConnell of Kentucky, the top Republican in Congress, on Monday threw his support behind President Trump’s refusal to concede the election, declining to recognize President-elect Joseph R. Biden Jr.’s victory as he argued Mr. Trump was “100 percent within his rights” to challenge the outcome. ~~~ end update]

Update: Saturday AM, 11/7/20 – As the votes are still being counted and the planned massive street protests have gone the same way as the Blue Wave Trump-Republican repudiation, let’s do a quick update and see how my scenario below – written at 9 am Tuesday Election Day – has played out thus far.

We’ll rely on Paul Street’s superb “early reflections“ and declare considerable vindication, thus far.

The threat of judicial coup by Supreme Court al la Bush v. Gore 2000 remains, but is being either ignored or dismissed by mainstream media.

The threat of Republican State legislature’s defying voting results remains an outstanding threat, yet to be determined, a fact you can finally find buried in this underwhelming NY Times story – What Happens When the Election Results Are Contested:

A state legislature has the authority under the Constitution to appoint the state’s electors, regardless of the status of the popular vote.   ~~~ end update]

Willow sky
Whoa, I walk and wonder why
They say love your brother
But you will catch it when you try

Roll you down the line boy
Drop you for a loss
Ride you out on a cold railroad
And nail you to a cross

November and more
As I wait for the score
They’re telling me forgiveness
Is the key to every door ~~~ Unbroken Chain (Grateful Dead, 1974)

Legislature Urged To Conduct Oversight Of DEP NRD Payments to Private Parties

Appeal To EPA Forthcoming

I was deeply troubled by the inclusion in a recent DEP NRD Settlement Agreement of payment of $2.8 million to the NJ Conservation Foundation, a private group.

In my view, such a practice raises a host of legal, public policy, and ethical issues and reflects a clearly inappropriate entanglement of private sector interests in purely governmental environmental enforcement actions. Both the private party and the government have potential conflicts of interest and incentives that might be perverse, including self dealing and inverse forms of pay-to-play politics.

I would think that conservation groups would be concerned about their independence and the appearance of quid-pro-quo deals with friendly government officials. Similarly, I assume that the private sector and legal communities would be particularly troubled by the kind of abuses this invites.

While the DEP NRD Settlement was entered into by NJ State officials primarily under NJ State law, it did cite federal laws as the legal basis and the Wyeth site (formerly American Cyanamid) is a federal Superfund site subject to EPA oversight, so I assume that there is some federal legal hook that could warrant application of US DOJ settlement policies.

So, I did some quick research of what the US Department of Justice’s legal policies are on such a practice.

I learned that the US DOJ Policy “1-17-000 – Settlement Payments To Third Parties” expressly prohibits some forms and imposes strict conditions on payments to private third parties in civil Settlement Agreements. (hit above link or full text of the policy and see below letter for additional excerpts):

It is generally not appropriate to use a settlement agreement to require, as a condition of settlement, payment to non-governmental, third-party organizations who are not victims or parties to the lawsuit.  Department attorneys shall not enter into any agreement on behalf of the United States in settlement of federal claims or charges, including agreements settling civil litigation, accepting plea agreements, or deferring or declining prosecution in a criminal matter, that directs or provides for a payment to any non-governmental person or entity that is not a party to the dispute.”

NJCF is not a party to the dispute in the DEP Settlement agreement.

The public comment period on the Settlement is closed.

The DEP never provided an opportunity for the public to comment on such a highly significant policy.

The DEP’s NRD program continues to be implemented in the absence of regulations, including science based standards for measuring or estimating NR injuries and making transparent the factual and technical basis upon which NRD economic damage estimates are calculated.

The public has had no opportunity to review and comment on this kind of Settlement policy and DEP has refused to confine their broad discretion in the NRD program via regulations, despite previously entering into a judicial settlement agreement which obligated the DEP to do so.

As the NJ Law Journal reported:

A March 23, 2003, letter from deputy attorney general Richard Engel to Picco said the DEP “has long planned to promulgate regulations to improve the current Natural Resource Damage program” and “is currently developing its regulatory proposals, and plans to file one or more rule proposals prior to Aug. 1, 2005.”

The “forthcoming rules clearly will afford the NJ SEED plaintiffs an administrative forum, subject to judicial review, in which to present policy and legal arguments presented in or related to the pending litigation,” Engel said in the letter

A few years ago, Senate Environment Committee Chairman Smith – in the wake of the Christie DEP’s Exxon NRD Settlement Fiasco – announced the formation of a legislative Task Force on NRD standards and economic valuation methods to be incorporated in NRD legislation.

That Task Force has not released any recommendations as far as I know, so I fired off the below letter to Smith requesting legislative oversight.

I’ll reach out to US EPA in the near future as well to encourage their oversight, as this involves a federal Superfund site.

Dear Chairman Smith:

I just learned, via news reports, of a DEP NRD Settlement Agreement with Wyeth for groundwater damages associated with the former American Cyanamid site. To review the Settlement, see:

https://www.nj.gov/dep/nrr/settlements/amcy-wyeth-draft-settlement-agreerment.pdf.

The Settlement incorporates, among other things: (paragraph #9)

“an agreement with the non-profit conservation intermediary organization, New Jersey Conservation Foundation (“NJCF”) pursuant to which, and subject to the execution of this settlement, Wyeth will provide funds to NJCF for the purposes of land acquisition, and preservation, which preservation shall include the placement of a conservation easement on the acquired land, as approved by the Department.”

I am deeply troubled by inclusion of payment of NRD settlement moneys to private parties. As you know, NRD settlements are designed to compensate the public for natural resource injuries. Inclusion of payments to private 3rd parties in a State legal settlement agreement raises a host of legal, policy, and ethical issues, a discussion of which is beyond the intent and scope of this letter.

However, as a matter of legal policy and because this settlement involved a federal Superfund site and is expressly based in part on federal law, I research the US Department of Justice policy on settlement agreements, and found that they prohibit and restrict inclusion of payments to private third parties.

The USDOJ settlement policy states: (emphases mine)

“The goals of a settlement agreement between the Department and a private party are to compensate victims, redress harm, and/or punish and deter unlawful conduct. It is generally not appropriate to use a settlement agreement to require, as a condition of settlement, payment to non-governmental, third-party organizations who are not victims or parties to the lawsuit.  Department attorneys shall not enter into any agreement on behalf of the United States in settlement of federal claims or charges, including agreements settling civil litigation, accepting plea agreements, or deferring or declining prosecution in a criminal matter, that directs or provides for a payment to any non-governmental person or entity that is not a party to the dispute.”

NJCF is not a “victim” and not a “party to the lawsuit”.

Does NJ Attorney General’s Office have a State policy on these issues?

The USDOJ Policy sets strict limits of settlements that include payments to private third parties. The US DOJ policy 1-17.000 states: (emphases mine)

https://www.justice.gov/jm/jm/1-17000-settlement-payments-third-parties

“Department attorneys may only enter into such agreements in three specific situations:

1. When the otherwise lawful payment or loan provides restitution to a victim or otherwise directly remedies the harm that is sought to be redressed (for example, harm to the environment or from official corruption).

2. When payment is directed towards legal or other professional services rendered in connection with the case.

3. When payment is expressly authorized by statute, including restitution and forfeiture.

This policy applies to all civil and criminal cases litigated under the direction of the Attorney General and includes civil settlement agreements, cy pres agreements or provisions, plea agreements, non-prosecution agreements, and deferred prosecution agreements.”

NJCF does not meet any of these conditions: they are not a victim; the settlement money is not directed to professional services; and there is no restitution or forfeiture. I am unaware of any NJ laws that “expressly authorizes” such NRD payments to private third parties.

The DEP settlement appears o contradict federal US DOJ legal policy.

I urge your immediate attention to this matter.

Among other issues, I urge you to ask the Attorney General’s Office and DEP to identify the legislative authority for such a settlement (i.e. which provide payments to private 3rd parties as noted above).

When did DEP provide an opportunity for public comment on an NRD policy of such significance?

As you know, the DEP NRD program continues to operate in the absence of implementing regulations, which is another fact I find deeply troubling.

The draft settlement was public noticed back on may 4, 2020 (during the hight of COVID). Unfortunately, the 60 day public comment period is closed, so I am precluded from commenting and therefore must rely on your intervention.

Respectfully,

Bill Wolfe

DEP Failed To Enforce Cleanup Laws For Over 20 Years, Making The Problems Far Worse

Commissioner McCabe tried to sweep all that under the rug with false statements about the benefits of voluntary compliance and cooperation

DEP Perpetuates Urban Neglect While Keeping Backyards of The Gentry Green

[Update below – US Justice Department Settlement Policy Rejects These Kind of Private Deals]

The Murphy DEP’s self congratulatory press release on a $4.2 million “Natural Resource Damage” (NRD) “voluntary” settlement at the former American Cyanamid Superfund site is misleading and leaves a lot of relevant information out. (read the Settlement document)

Let me highlight just a few issues that were spun beyond recognition or omitted entirely.

I) The deal was not “voluntary”

DEP described the settlement as “voluntary”:

The agreement, one of the largest voluntary settlements for natural resource damages (NRDs) to the state’s groundwater, compensates the public for resource injuries caused by the sprawling former industrial site that straddles Bridgewater and Bound Brook along the Raritan River.

That is just flat out false.

Under NJ’s Spill Compensation and Control Act and NJ Water Pollution Control Act, corporate polluters are under a legal obligation to compensate the public for damages to natural resources caused by their toxic pollution. Furthermore, DEP implements the NRD program via regulations and the Attorney General backs that up via litigation.

There’s nothing “voluntary” about that.

In an embarrassingly display, Murphy Attorney General Grewal contradicts DEP’s spin and correctly highlights “enforcement“: (MyCentralJersey story)

“As we’ve made clear for years, the [Gov. Phil| Murphy Administration is committed to holding polluters accountable, which is why we breathed new life into our Natural Resource Damage litigation efforts,” Attorney General Gurbir Grewal said in a statement. “Actions like today’s are why I remain committed to continuing our robust efforts to promote environmental enforcement and environmental justice all across New Jersey.”

In another embarrassing major policy conflict between Murphy Cabinet members, AG Grewal also uses the correct rhetoric “holding polluters accountable”, while DEP Commissioner McCabe lamely an falsely touts not only the “voluntary” nature of the settlement, but claims there are benefits of “cooperation” with “responsible parties”.

II)  DEP Cooperation With Polluters Is a Failed Policy

DEP Commissioner McCabe touts alleged benefits of “cooperation” and “applauds” the corporate polluter:

“This agreement demonstrates how the State and responsible parties can work together for the public good,” Commissioner McCabe said. “I applaud Wyeth for working cooperatively with DEP’s Office of Natural Resource Restoration to amicably resolve their liability and to enhance natural resources in the Raritan River watershed. Cooperation like this ensures that our time is better spent restoring and improving outdoor spaces for the enjoyment of all New Jerseyans.”

That is a crock of shit. It reads like a press releasee from Wyeth. What the hell was McCabe thinking? Why would she praise a corporate polluter? Merely for coming to the table to settle and dodging a lawsuit (while paying pennies on the dollar of actual damage)?

DEP’s “cooperation” with corporate polluters – and failure to enforce toxic site cleanup laws – was the target of a highly critical US EPA Office Of Inspector General (OIG) Report. see:

• EPA REPORT BLASTS NEW JERSEY TOXIC CLEAN-UPS – State Failures to Enforce Law Lead to Worst Delays in the Country

The DEP’s failures at the Wyeth (formerly American Cyanamid site) were specifically targeted and audited in that OIG Report.

The OIG Report focused on several toxic clean-up operations that had been going on for more than 20 years without completion and concluded that –

• New Jersey had the worst track record in the nation, accounting for more than one quarter of all unresolved Superfund clean-ups more than 20 years old;
• Delays were primarily due to the state department of Environmental protection (DEP) not using legal tools available to them to force responsible parties to clean up pollution; and
• The U.S. EPA should step in and take over mired state-supervised clean-ups.

Cleanup delays, caused by DEP’s failure to enforce cleanup laws, allowed the toxic pollution to spread and migrate off site via the Raritan River and groundwater, and harm fish, wildlife and human health, including the pollution and closure of drinking water sources, see:

But you would never know any of this by reading DEP’s false and highly misleading self congratulatory press release.

III)  $4.2 Million is Peanuts

My initial reaction was $4.2 million is peanuts, especially for the magnitude of natural resource damages from that site.

Neither DEP nor Wyeth conducted a formal natural resource injury damage assessment and quantified those damages (as per NJ DEP site remediation and NRD program regulations). No doubt DEP’s failure to do that was intended to avoid another Exxon NRD fiasco, where DEP quantified almost $9 billion in NR damages, which then exposed their paltry settlement. See:

• Bungling By DEP Led To Exxon Deal.

DEP admits that in paragraph #8: (none of the reports referenced quantified economic damages):

(and despite that bungling, DEP still has failed to adopt regulations to quantify NRD damages – and what ever happened to the Senate bill (sponsored by Chairman Smith) that would have mandated that DEP adopt NRD regulations? See:

• Lessons for NJ Legislative Taskforce Developing Natural Resource Damage Standards

Will anyone ask Senator Smith and Attorney General Grewal and DEP Commissioner McCabe about this?

So how did DEP arrive at $4.2 million?

Answer: It was purely a deal (and a dirty one at that).

It reminds me of the recent oxycodone settlement with the Sackler family.

American Cyanamid and Wyeth are some deep pocketed corporate polluters that have billions in assets that could have been tapped (also recalls the Christie Exxon NRD settlement – 3 cents on the dollar).

IV)  Environmental Justice?

I was shocked by AG Grewal’s statement about “environmental justice”.

Attorney General Gurbir Grewal said in a statement. “Actions like today’s are why I remain committed to continuing our robust efforts to promote environmental enforcement and environmental justice all across New Jersey.”

The settlement money went to purchase land in East Amwell, a wealthy Hunterdon County town that is the opposite of an EJ community. DEP is doing more of this:

• NJ’s Landed Gentry – Open Space Has Become A Tool For The New Restrictive Covenants
• Keeping the Backyards of the Landed Gentry Green – With Public Funds

And while DEP is keeping the backyards of the Gentry green, they are ignoring and neglecting urban interests, like Trenton’s magnificent Duck Island, which could become a fantastic urban riverfront State Park with a little DEP leadership and NRD money:

• Murphy DEP Delaware River Litter Cleanup Day Exposes Hypocrisy, Neglect, And Another Missed Opportunity

What was AG Grewal thinking?

V)  Green Cover

I was very troubled to read that a NJ conservation group was directly involved in the Settlement: