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Murphy DEP Continues To Abdicate And Rely On Failed Local Land Use Plans

Market Failure And Perverse Local Incentives Demand State Regulation

NJ Spotlight just wrote another stunningly misleading climate – land use story, basically repeating the myth that local land use controls are effective in adapting to the climate emergency, despite blatant contradictions with their own prior reporting and sources in the story itself.

Amazingly, today’s reporting comes after it took NJ Spotlight – based on the biased opinions of the corporate planning group NJ Future – almost 2 years of warehouse development stories to finally report that reliance on local “home rule” and the voluntary NJ State Plan is “doomed to fail”. (NJ Spotlight, 9/12/22)

As an author of the 1986 State Planning Act, Gilbert said he and other drafters were told by the administration at the time to remove language that would dilute home-rule power while building up regional or statewide authority over the planning process.

“The governor and legislative leaders knew that to convince the collective towns and cities to give up this power, they would have to offer something in return. Furthering the public good was not enough.”

The latest attempt to establish statewide or regional planning policy is doomed to fail for the same reason, Gilbert argued.

“Hope springs eternal among planners,” he said. “But we don’t seem to be willing to learn from our mistakes. So here we have again another toothless wish list of wonderful things for towns to do.”

After almost 30 years of lies by State Plan supporters, it took almost 40 years for the media to tell the truth and report that the toothless State Plan was INTENTIONALLY “doomed to fail”.

Equally amazing, today’s climate – land use story – which focuses on land use planning and local property taxes – comes literally in the wake of Gov. Jim Florio’s death.

Not surprisingly, news coverage of Florio’s legacy failed to mention his outgoing State of the State address in 1994, which highlighted and warned about the voluntary State Plan, the dangers of “home rule”, and over-reliance on local property taxes. Florio said:

During the past few years, one very important tool for fighting property taxes and promoting responsible development has been working its way to completion. The State Plan was begun in 1985 by Governor Kean, and finally approved in 1992.

It’s the backbone of the effort I’m talking about today. My last contribution to that effort took place this morning, when I signed an Executive Order that will end the piecemeal implementation of our new State Plan. It requires all agencies of state government to immediately begin to coordinate their actions with each other and with the objectives of the Plan.

To fix those problems, Florio’s final action as Gov. was to issue Executive Order #109 to put State teeth in the State Plan – another key legacy that went unreported.

(Worse, in prior coverage of Florio’s legacy, NJ Spotlight not only failed to report this legacy, they provide a platform for Governors Christie Whitman and Tom Kean – the very people who reversed Florio’s accomplishments.)

So, with that context in mind, what did NJ Spotlight do?

They AGAIN relied on NJ Future as an expert source and AGAIN emphasized failed voluntary local planning and AGAIN let Murphy DEP off the hook for continuing abdication of DEP’s legal and moral responsibilities.

Do people forget that Murphy DEP Commissioner actually said THIS on the record? (NJ Spotlight, 10/14/20)

Although developers and builders fear the new rules will tighten limits on where they can build in coastal and inland areas, the regulations are unlikely to do that, LaTourette said in an interview with NJ Spotlight News. …

“We’re not at a point, nor do we think it’s our role, to tell people: ‘Don’t build here, you shouldn’t build there, you can’t do that,’” LaTourette said. “It is about making folks assess their risk and recognize the risk they are taking on. We are not saying: ‘You cannot build in a future flood-risk area.’ We’re saying that in a future flood-risk area, you need to at least do what you do now in an existing flood-risk area, which is: assess the risk, and notice that risk. It will forever live in the deed record of that property.”

“Not our role”. “Deed record” buyer beware. The Market rules. Right.

So let me explain today’s continuing media and regulatory failures.

In a rambling and convoluted complex climate story titled “How climate change could sink NJ’s tax base — and not just at the Shore”, the reader has to dig for and infer the lede – which is that real estate market profits and perverse local tax incentives are ignoring and compounding climate risks by continuing to develop in highly inappropriate locations, all while the Murphy DEP continues to abdicate a State responsibility.

Spotlight reported:

While few municipalities in New Jersey have started to plan for this impact, it’s something that Stratton, the Hoboken official, views as a future threat that’s commingled in a ball of financial risks associated with climate change.[…]

But that doesn’t mean local leaders are ready to make major changes. On the contrary, ongoing coastal development in many parts of the state will increase the value of private property and the scale of property-tax revenues jeopardized by rising seas.

“I haven’t seen it affecting development, new development or redevelopment in any way,” Herrington said. [Herrington is at the Urban Coast Institute at Monmouth University]

Despite this municipal planning failure, market failure, and perverse economic incentives, the Murphy DEP has done nothing but talk:

A slow state response

Statewide efforts are underway, but those processes tend to move slowly. New Jersey’s Department of Environmental Protection announced an emergency rulemaking push following last year’s devastation from Ida, an attempt to create new restrictions on development in floodplains. But that effort has ground to a halt, with the state facing heavy pushback from business groups

So, what are the solutions? What level of government has the lead responsibility? Again they go local:

Kasabach sees coastal communities as having three choices as sea level rise eats away at properties.

And who is framing these failed local alternatives?

Kasabach [NJ Future] said it’s imperative the state move forward with the proposed floodplain rule.

“That’s going to give local officials more support to be able to make those tough planning decisions about areas where they’re not going to reinvest infrastructure dollars, where they’re not going to encourage redevelopment to take place,” Kasabach said.

Meanwhile, a recently enacted state law requires each of the state’s 564 municipalities to incorporate a climate change risk assessment into their master plan updates. Kasabach called the law a game-changer.

“As towns are starting to realize they need to meet this requirement, they’re starting to have the right kinds of conversations about their land use (and) future projections about what things are going to look like,” Kasabach said.

Let’s break that down:

1) NJ Spotlight again relies on Kasabach of NJ Future, which is the same corporate planning outfit that misled them for 2 years on the warehouse story by emphasizing failed local planning and the “doomed to fail” toothless State Plan.

Instead of accurately describing NJ Future as a private corporate planning group, they misled readers with this:

New Jersey Future, a nonprofit group focused on urban design.

NJ Future describes themselves: 

New Jersey Future has:

• Served as chief advocate for the adoption and implementation of the State Development and Redevelopment Plan, New Jersey’s smart growth blueprint for revitalizing communities and protecting natural resources.

After decades of misleading the people of NJ about the intentionally, by design, “doomed to fail” toothless State Plan, and then again repeating those same lies on the warehouse problems, NJ Future’s credibility should be zero and they should not be the sole source to outline alternatives. Period.

2) Note how Kasaback contextualized DEP’s regulations as merely support for local planning. He says it’s the municipalities that are to make the “tough planning decisions”, thereby again localizing a State responsibility.

3) In this story itself, NJ Future Kasaback’s emphasis on municipal planning is contradicted by other sources, who say municipalities are doing very little or nothing.

4) As I explained in detail, the law Kasaback mentions is NOT a “game changer”.

That law (according to NJ Spotlight’s spin):

requires each of the state’s 564 municipalities to incorporate a climate change risk assessment into their master plan updates. Kasabach called the law a game-changer.

Just like the voluntary State Plan is toothless, so too are Municipal Master Plans toothless, and for the same legal reasons.

Under NJ’s Municipal Land Use Law, the local Master Plan is NOT enforceable. There is no, what is called “mandatory conformity” requirement.

The local zoning code, which is enforceable and controls development, is not required to conform with the Master Plan.

So a “climate change risk assessment” sounds good, but it is a meaningless exercise, merely – to quote Jim Gilbert –

“another toothless wish list of wonderful things for towns to do“.

[Update: a well informed reader sent me this note on the “Climate Change Risk Assessment”: (my emphasis)

It only applies when a town redoes its master plan which is rare every 20 years or more – its not included the Periodic MP review which is every 10  years but its not mandatory- also there no mandatory implementation of the plan or zone changes required.

[End Note: With respect to the Hoboken sea wall solutions NJ Spotlight cheerleads for and why they will fail, see also:

• Christie’s Sea Wall Follies

No “Climate Emergency” Declaration By Gov. Murphy

No Moratorium On New Fossil Infrastructure

No DEP Regulations To Mandate Consideration Of This Science Or Mitigate Impacts

(Source: Figure 1. Maps and model estimates for 2051 levels of ozone across New Jersey)

The DEP just issued an “Addendum” to their 2020 Report on Climate Science, see:

• CLIMATE CHANGE IMPACTS ON HUMAN HEALTH & COMMUNITIES

As the title suggests, the Report focuses on devastating public health impacts currently occurring and projected to worsen due to the climate emergency.

As I expected, the Report was given glowing superficial news coverage by NJ Spotlight – I have not searched for or read any other NJ media stories.

The science is not new, but some recent data on the increasing rate of adverse NJ health effects is.

The inclusion of the health effects of ultra fine particulates is good, because that is an issue that has long been downplayed or flat out ignored by DEP in their air pollution permitting and regulations.

I have not conducted a close reading of the Report, so for today, I will make a few observations on the policy and regulatory implications of the science, which, as usual, were completely ignored by NJ Spotlight’s story (other than this casual allusion at the end of the story:

The supplement to the 2020 study is expected to better inform the public on the health impacts of climate change and to steer the state’s planning and preparation for a worsening climate crisis. It also is expected to inform the development of the state’s climate change resilience strategy.

“Steer state planning” and “expected to inform”? Are you kidding me?

And, also as usual, NJ climate activists are giving the Gov. and DEP another pass by focusing on the national level and Biden, instead of controversial issues right in their backyard before Gov. Murphy and DEP:

The report was released at the start of Climate Week and coincided with a separate event by New Jersey’s most prominent environmental groups calling on the Biden administration to enact stronger pollution standards to protect public health and to reduce emissions that contribute to climate change.

So, here are some of the NJ based policy implications of the DEP Report that NJ’s “most prominent environmental groups” ignore:

1. Despite Climate Emergency And Increasing Health Impacts, Gov. Murphy Fails To Declare A Climate Emergency Or Impose a Moratorium On New Fossil Infrastructure

For years, climate activists have called on Gov. Murphy to use his Executive powers to declare a climate emergency and impose a moratorium on DEP approvals of new fossil infrastructure.

If not now, when?

2. DEP Proposed Power Plant CO2 and Environmental Justice Rules Do Not Mandate Consideration And Mitigation Of The Health Impacts Documented By DEP Report 

Despite the science documenting devastating health impacts on poor and minority overburdened and highly vulnerable designated “environmental justice communities”, the previously proposed DEP rules on CO2 emissions from certain large fossil power plants and on “EJ permitting” do not mandate consideration of these health effects and do not mandate mitigation of the harms created by regulated activities.

3. DEP Has Not Yet Even Proposed Climate Adaptation Land Use Regulations

No further comment required. All slogans: “resilience”, “adaptation”, “PACT” and “REAL” – it’s all FAKE.

Years of Talking Dangerously.

4. The Science Supports Shut Down Of Garbage, Hospital, And Sludge Incinerators

The findings include this:

The combustion of refuse produces not only the normal pollutants (e.g., CO, SO2, NO2, particulate matter, etc.), but can also release an abundance of toxic chemicals including, polychlorinated dibenzo-p-dioxins, furan, & PCBs.

We say, shut them down:

• Time To Shut Down NJ’s Highly Polluting And Racist Garbage Incinerators

See Section 3.1-1.1 Air Pollution from Biomass Combustion.

If DEP were serious about negative health impacts of fine particulates from fires, they would ban agricultural burning & prescribed burns; (and repeal immunity for harms), shut down garbage, sludge & medical wast incinerators; & regulate wood stoves (and ban new fossil combustion – gas plants emit ultra-fine particulates – as well as revise numerous air quality program regulations – see below)

5. The Science Supports Bans On “Prescribed Burns” And Logging Of Remaining Forests

The Report walks back prior DEP’s public statements that exaggerated NJ wildfire risks:

While the scale of wildfires in NJ does not compare to regions in the western United States, a significant portion of its homes are adjacent to forested areas, making even the small fires a concern for human health & property.

We called DEP Commissioner LaTourette out on those exaggerations:

• Murphy DEP Caught Blowing Smoke On Wildfires

• NJ Forests And Climate Are Nothing Like California And Western Forests – Don’t Let Fake Wildfire Fear Justify Logging

The DEP’s “prescribed burn” and “active forest management” policies are making the air pollution impacts worse.

And the Murphy DEP is not serious about reducing the risks of wildfires – they won’t even harvest the low hanging fruit and take action:

• Murphy DEP Denies Climate Wildfire Risk Petition

6. The Science Supports Bans On New Development In High Hazard Areas, Including Extreme Wildfire And Coastal and Inland Flood Zones

We’ve written many times about the need for a “strategic retreat” policy and plan, DEP bans on new development in high hazard locations, and revocation of NJ’s “right to rebuild” storm damaged properties in NJ CAFRA and Flood Hazard Acts.

Watching DEP do nothing in response is infuriating.

7. The Science Supports Revisions Of Several Key DEP Regulations, Technical Manuals, Guidance Documents, and Risk Management Policies, Standards, And Practices

The findings of this Report demand that everything at DEP, from ambient air monitoring to risk assessment, must change. I’ve outlined and provided details in these posts:

• EJ community exposures to cancer causing hazardous air pollutants
• DEP lack of regulation of cumulative risk & impacts to multiple exposures and multiple pollution sources
• DEP’s failure to update the cancer risk screening, risk assessment, & pollution dispersions technical requirements
• DEP’s failure to enforce the NJ Air Pollution Control Act’s “advances in the art” standard
• DEP’ failure to require community level ambient air quality monitoring
• DEP’s long delayed and upcoming “environmental justice’ permit review regulation
• DEP’s current Climate PACT GHG rule proposal

DEP is not only ignoring the need to revise all this, but they are covering it all up by hiding behind their flawed EJ rule proposal.

8. The Science Supports Major Revisions To Put Teeth In NJ’s Global Warming Response Act and State Planning Act

Land use has major climate implications, from transportation emissions, electrification retrofit of existing buildings, and preserving forests and wetlands to maximize carbon sequestration and storage in forests and agricultural lands, to adaptation to extreme events.

But NJ’s land use planning regime under the State Plan is “toothless” and “doomed to fail”, according to Jim Gilbert, the man who wrote the 1986 State Planning Act and sat on the State Planning Commission:

• Gov. Tom Kean Killed The State Plan: The Truth On The Toothless State Plan Finally Comes Out After 40 Years

I’ve written so many times about the similarly toothless Global Warming Response Act I won’t even waste your time to provide a link. If you are a new reader out unfamiliar with all this, use the search box in the upper right hand corner.

9. The Science Does Not Support DEP Proposal Of “Emergency Rules”

We have a climate emergency, but – unless Gov. Murphy declares an “emergency” – that does not meet the “emergency” standard in NJ Administrative Procedure Act.

• NJ Environmental Groups Urged To Abandon Support of Murphy DEP’s Plan To Propose “Emergency Rules”

In sum, this DEP Report amounts to more Years of Talking Dangerously.

Swan Creek Redux

Long time investigative journalist and columnist Bob Hennelly has a good piece today at Insider NJ, read the whole thing:

• Year After Ida Killed 30, Flood Regs Stall while Projects Advance

While he nailed the big picture story, I think he got a few important things not quite right and left some important things out, so I sent him this note:

Bob – good piece – a few comments:

1. You included this quote, which comes from a cheerleader, not a competent and objective regulatory analyst:

“It sure was monumental because it directed the NJ DEP to address all of the impacts of the climate crisis not just in the environment but the broader economy and since the NJ DEP has done their job, yet the Governor hasn’t followed up on his end”

What? This is factually false. DEP has NOT done their job. Was there a typo that left out “not”?

In addition to failure to propose new climate adaptation regulations (and it’s not just flood hazard, but stormwater, wetlands, CAFRA, WQMP, NJPDES, SDWA (infrastructure regulations), Highlands, Pinelands, forestry, chemical safety (RTK and TCPA), solid and hazardous waste management, toxic site cleanup, well construction, and septic design regulations), there are several Christie DEP regulatory rollbacks that remain in place, while LaTourette re-adopted those Christie rules without change to prevent their expiration – take a look at them all:

https://www.nj.gov/dep/rules/readopt.html

On top of that, DEP has done very little on reducing GHG emissions. Their single CO2 emissions rule proposal – not yet adopted, 6 years into the Murphy Administration – is extremely weak (weaker than Obama’s Clean Power Plan). And RGGI allows for increases in emissions because of the cap, banking, credit generation, and other flaws.

Why do enviro’s continue to provide cover for this DEP Commissioner?

Identity politics has a lot to do with it.

Let me know if you want backup – see this for some links and watch the Sandy documentary! It also included former DEP Commissioner Mauriello and Princeton scientist (I got more air time than both!)

Years Of Talking Dangerously

http://www.wolfenotes.com/2022/08/years-of-talking-dangerously/

2. The emergency rule proposal idea is legally flawed and guaranteed to be rejected by NJ Courts.  If not Courts, then the Legislature will strike it down as “inconsistent with legislative intent”.

Exactly one day before the Builders et al wrote Gov. Murphy that letter, On June 2, I laid out the critique of why “emergency rulemaking” was legally flawed. I followed that June 2 post up with a July appeal to Enviro’s see

http://www.wolfenotes.com/2022/07/nj-environmental-groups-urged-to-abandon-support-of-deps-plan-to-propose-emergency-rules/

Emergency rulemaking was LaTourette’s idea and – best case – probably was a way to mitigate the harm from his own delay in adopting regulations and rubber stamping permits for thousands of units/millions of square feet of new developments in hazardous flood locations.

Worst case, it was a cynical ploy to create the appearance of doing something and then blaming the Builders when it failed in Court.

La Tourette is now blaming the Gov. Office for putting the brakes on his terrible emergency rule idea. The Builders letter obviously prompted a rigorous legal review.

3. The enviro’s are not even asking for the 2 most important policy elements in any climate adaptation plan:

a) strategic retreat – this will require DEP planning and mandates not only on prohibitions on new development, but on buyouts from destroyed property, a move away from the exclusively reliance on voluntary willing sellers.

Senator Smith was quoted recently in NJ Spotlight saying that the regulatory mandate approach to new development restrictions would constitute an unconstitutional “regulatory taking”. Smith is as far right ideologically on land use as the radical western wise use movement people. (Smith only sponsored the Highlands Act because Gov. McGreevey told him to, and so he could control the amendments that significantly weakened the introduced version of the bill. I know this first hand. I was in the room and represented DEP as part of the small OLS team that drafted the bill.)

b) repeal right to rebuild – NJ might be the only coastal state with a “right to rebuild” storm damaged property.

NJ CAFRA and Flood Hazard Acts both have “right to rebuild” provisions. There was a Senate bill to repeal them back in 2014 but it died, see:

• Proposed Legislation Would Restrict “Right- to-Rebuild” Storm Damaged Property Along the Coast

This is one reason why NJ is a national “leader” in FEMA repeat storm damage claims. The federal bailout gravy train is not sustainable.

Let me know if you want links to support all this.

Wolfe

End Note:

How oblivious must Gov. Murphy and his stafff be? Did he not realize how cruelly ironic a press event on flooding at Swan Creek in Lambertville is? (See above photo I took 11 years ago in wake of Irene flooding there.)

Is he not even aware of this history? Of the failure of previous Gov.’s “Flood Task Forces” and DEP?

His administration is clueless and only adept at press releases.

A Message For Labor Day

“[Ad]venture down into the bowels of the molten pit”

“Those singed by the fire of reality become “burnt children”

This Labor Day, in contrast to a lot of the recent “good news” about the resurgence of labor unions, we excerpt a passage from a brilliant 2014 address by Chris Hedges: (read or listen to the whole thing)

• The myth of human progress and the collapse of complex societies

I am reading and rereading the debates among some of the great radical thinkers of the 19th and 20th centuries about the mechanisms of social change. These debates were not academic. They were frantic searches for the triggers of revolt. Lenin placed his faith in a violent uprising, a professional, disciplined revolutionary vanguard freed from moral constraints and, like Marx, in the inevitable emergence of the worker’s state. [Pierre-Joseph] Proudhon insisted that gradual change would be accomplished as enlightened workers took over production and educated and converted the rest of the proletariat. [Mikhail] Bakunin predicted the catastrophic breakdown of the capitalist order, something we are likely to witness in our lifetimes, and new autonomous worker federations rising up out of the chaos. [Peter] Kropotkin, like Proudhon, believed in an evolutionary process that would hammer out the new society. Emma Goldman, along with Kropotkin, came to be very wary of both the efficacy of violence and the revolutionary potential of the masses. “The mass,” Goldman wrote bitterly toward the end of her life in echoing Marx, “clings to its masters, loves the whip, and is the first to cry Crucify!”

The revolutionists of history counted on a mobilized base of enlightened industrial workers. The building blocks of revolt, they believed, relied on the tool of the general strike, the ability of workers to cripple the mechanisms of production. Strikes could be sustained with the support of political parties, strike funds and union halls. Workers without these support mechanisms had to replicate the infrastructure of parties and unions if they wanted to put prolonged pressure on the bosses and the state. But now, with the decimation of the U.S. manufacturing base, along with the dismantling of our unions and opposition parties, we will have to search for different instruments of rebellion.

We must develop a revolutionary theory that is not reliant on the industrial or agrarian muscle of workers. Most manufacturing jobs have disappeared, and, of those that remain, few are unionized. Our family farms have been destroyed by agro-businesses. Monsanto and its Faustian counterparts on Wall Street rule. They are steadily poisoning our lives and rendering us powerless. The corporate leviathan, which is global, is freed from the constraints of a single nation-state or government. Corporations are beyond regulation or control. Politicians are too anemic, or more often too corrupt, to stand in the way of the accelerating corporate destruction. This makes our struggle different from revolutionary struggles in industrial societies in the past. Our revolt will look more like what erupted in the less industrialized Slavic republics, Russia, Spain and China and uprisings led by a disenfranchised rural and urban working class and peasantry in the liberation movements that swept through Africa and Latin America. The dispossessed working poor, along with unemployed college graduates and students, unemployed journalists, artists, lawyers and teachers, will form our movement. This is why the fight for a higher minimum wage is crucial to uniting service workers with the alienated college-educated sons and daughters of the old middle class. Bakunin, unlike Marx, considered déclassé intellectuals essential for successful revolt.

It is not the poor who make revolutions. It is those who conclude that they will not be able, as they once expected, to rise economically and socially. This consciousness is part of the self-knowledge of service workers and fast-food workers. It is grasped by the swelling population of college graduates caught in a vise of low-paying jobs and obscene amounts of debt. These two groups, once united, will be our primary engines of revolt. Much of the urban poor has been crippled and in many cases broken by a rewriting of laws, especially drug laws, that has permitted courts, probation officers, parole boards and police to randomly seize poor people of color, especially African-American men, without just cause and lock them in cages for years. In many of our most impoverished urban centers — our internal colonies, as Malcolm X called them — mobilization, at least at first, will be difficult. The urban poor are already in chains. These chains are being readied for the rest of us. “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread,” Anatole France commented acidly.

Erica Chenoweth and Maria J. Stephan examined 100 years of violent and nonviolent resistance movements in their book “Why Civil Resistance Works.” They concluded that nonviolent movements succeed twice as often as violent uprisings. Violent movements work primarily in civil wars or in ending foreign occupations, they found. Nonviolent movements that succeed appeal to those within the power structure, especially the police and civil servants, who are cognizant of the corruption and decadence of the power elite and are willing to abandon them. And we only need 1 to 5 percent of the population actively working for the overthrow of a system, history has shown, to bring down even the most ruthless totalitarian structures. It always works on two tracks — building alternative structures such as public banks to free ourselves from control and finding mechanisms to halt the machine.

The most important dilemma facing us is not ideological. It is logistical. The security and surveillance state has made its highest priority the breaking of any infrastructure that might spark widespread revolt. The state knows the tinder is there. It knows that the continued unraveling of the economy and the effects of climate change make popular unrest inevitable. It knows that as underemployment and unemployment doom at least a quarter of the U.S. population, perhaps more, to perpetual poverty, and as unemployment benefits are scaled back, as schools close, as the middle class withers away, as pension funds are looted by hedge fund thieves, and as the government continues to let the fossil fuel industry ravage the planet, the future will increasingly be one of open conflict. This battle against the corporate state, right now, is primarily about infrastructure. We need an infrastructure to build revolt. The corporate state is determined to deny us one.

The state, in its internal projections, has a vision of the future that is as dystopian as mine. But the state, to protect itself, lies. Politicians, corporations, the public relations industry, the entertainment industry and our ridiculous television pundits speak as if we can continue to build a society based on limitless growth, profligate consumption and fossil fuel. They feed the collective mania for hope at the expense of truth. Their public vision is self-delusional, a form of collective psychosis. The corporate state, meanwhile, is preparing privately for the world it knows is actually coming. It is cementing into place a police state, one that includes the complete evisceration of our most basic civil liberties and the militarization of the internal security apparatus, as well as wholesale surveillance of the citizenry.

Don’t miss the closing.

Gov. Florio’s Leadership And Legacy Are Sorely Missed

Whitman Assault Ground That Legacy To Ashes

Short-term expediency as a way of avoiding the long-term public interest is, in the ultimate reckoning, a sure-thing losing cause. ~~~ Gov. Jim Florio (Jan. 11, 1994)

Following his close electoral loss to Christie Whitman, in 1994, former Gov. Jim Florio issued a powerful and visionary outgoing State of the State address (read the whole thing).

Before he was Governor, Florio had a national environmental leadership reputation as prime sponsor of the Superfund law (1980) and the Resource Conservation And Recovery Act (1976). He also led passage of the federal law that created the Pinelands National Reserve (few people know that the federal Pinelands law was enacted before Gov. Byrne’s NJ State law, and that it was motivated not only by conservation values of John McPhee’s book, but to block off shore oil and gas development by erecting a barrier to pipelines across the Pinelands to Delaware River refineries. For details, see “Untold Pinelands History”).

During his brief tenure as NJ Gov., Florio enacted nationally leading environmental policy initiatives, including passage of the: 1) Clean Water Enforcement Act,; 2) Pollution Prevention Act; 3) Toxic Packaging Reduction Act; 4) Dry Cell Battery Management Act; 5) mandatory hazardous and solid waste use reduction policies; and 7) mandatory source separation and recycling laws.

Driven by Florio’s Executive Orders, on the regulatory front, Florio’s DEPE adopted a radically new and progressive Statewide Solid Waste Management Plan, one of the world’s strictest air emission standards for mercury emissions from garbage incinerators, and stricter DEP coastal development regulations.

Florio’s Executive Order #2 created an Environmental Prosecutor in the Attorney General’s Office.

Florio’s Executive Order #8 established a Solid Waste Task Force which developed policy recommendations that ultimately terminated 15 proposed garbage incinerators, deemed incineration a “technology of last resort”, created new source reduction policies, mandated via regulation the nation’s most aggressive recycling goals, and shifted hundreds of millions of dollars of State subsidies previously allocated to incineration (“resource recovery”) to local recycling and waste reduction programs.

Florio’s Executive Order #82 began and structured the public campaign that ultimately led to later passage of the Highlands Act in 2004:

WHEREAS, both the Skylands Greenway Task Force and the U.S. Forest Service Highlands Study recognized the continued threats of uncontrolled suburbanization and urbanization on the natural resources of the region and recommended protection and conservation of the region’s important water and contiguous forest resources;

By issuing a reorganization Plan and Executive Order #38, Florio anticipated the climate emergency when he merged State BPU energy programs into the DEP, forming the Department of Environmental Protection And Energy (DEPE).

WHEREAS, Reorganization Plan (No. 002-1991) is due to become effective on August 19, 1991 in order to enhance the coordination and integration of the State’s utility, environmental and energy policies;

Florio anticipated the need to adapt to climate chaos (policies now called “adaptation” and/or “resilience”). He issued Executive Order #115:

WHEREAS, various natural hazards have caused physical and financial impact in New Jersey and will continue to do so and these impacts have resulted in unexpected costs to county and local governments as well as degradation of the State’s health, safety, environment, infrastructure and economy; and

WHEREAS, the opportunities to significantly mitigate the impacts of coastal storms, hurricanes, floods, wildfires, earthquakes, and other natural hazards are identifiable and should be executed as funding is available;

Executive Order #115 established a State Hazard Mitigation Team, and directed a new policy and planning process:

4. The SHMT shall develop a systematic program to identify hazards, monitor changes in hazard vulnerability and implement measures for reducing potential damage by providing a mechanism for follow-up activities crucial to the successful implementation of team recommendations.

5. The SHMT shall develop and maintain a comprehensive plan for the reduction of natural hazards. The team shall review and update this document as deemed necessary.

6. The SHMT shall work to increase the public’s awareness of the risk associated with known hazards and promote preparedness among residents of the State.

The team included Department of Environmental Protection and Energy: Supervisor of Land-Use Regulations. State Floodplain Management Coordinator. State Forest Fire Warden.

In a strategically smart move, Florio responded effectively to the right wing manufactured public outrage over the Department of Health’s “runny egg rule”. (a faux grassroots group, Hands Across NJ, formed to exploit that controversy and the “toilet paper tax” backlash. That group was the precursor to later Tea Party (e.g. scroll down to see photos of Congressman Holt’s 2009 “Town Hell”) and MAGA campaigns).

Florio got out in front of the business community’s opportunistic political attacks on regulations and prevented their rollbacks and corruption via business community recommendations of cost-benefit analysis, “red tape” reviews, and rollbacks for federal consistency. Instead, Florio adopted a progressive oriented “regulatory reform” process that emphasized public participation under Executive Order #97.

Florio sought to preserve small family farms and strengthen the Farmland Assessment program via Executive Order #109

Florio promoted and created the first Environmental Education week via Executive Order #111.

Florio’s State Planning Commission finally adopted the State Development and Redevelopment Plan begun almost a decade previously by Gov. Kean, a visionary but toothless blueprint for growth and preservation.

But in his final State of the State address, Florio announced another bold initiative to put regulatory teeth in the State Plan, via an Executive Order #114. 

That message was not only a recognition of the need for regulatory teeth in the voluntary State Plan, it also was an assault on home rule and local property taxes (theretofore sacrosanct and taboo “political third rail” topics!)

Florio presciently warned:

When President Eisenhower left office he spoke of the growing danger of the military-industrial complex.

My message is closer to home, but please take it in the same spirit. … […]

During the past few years, one very important tool for fighting property taxes and promoting responsible development has been working its way to completion. The State Plan was begun in 1985 by Governor Kean, and finally approved in 1992.

It’s the backbone of the effort I’m talking about today. My last contribution to that effort took place this morning, when I signed an Executive Order that will end the piecemeal implementation of our new State Plan. It requires all agencies of state government to immediately begin to coordinate their actions with each other and with the objectives of the Plan.

The plan requires investment in housing, transportation and other fields to be concentrated in areas of designated higher growth. In protected natural and agricultural areas, investment will be more limited. The logic is simple, and I think understood by most. If you put a wastewater treatment plant in the middle of nowhere, guess what happens: development, which you then have to pay to service.

A sustainable future for New Jersey requires that we strike a balance between preservation and development. Wise development, not the growth without vision that was an unfortunate hallmark of the 1980s, is our goal.

The State Plan is a vision for growth. More than a colorized land-use map for New Jersey, it is a vital, living document, a road map if you will, that will allow us to plan wisely, tax fairly, and measure the real cost of growth. “Emergency room” government was an approach that failed in the 1980s. The State Plan is a good example of the kind of “preventive care” approach that the 1990s demand. Anticipating and acting to avoid problems before they occur is what we seek – an approach that looks to the next generation, not just the next election.

President Lyndon Johnson once said, “We have talked long enough…We have talked for a hundred years or more. It is now time to write the next chapter and to write it into the books of law.” He was talking about civil rights, but the same could be said of the State Plan here in New Jersey.

More than a framework for responsible growth, the Plan is a tool for avoiding the mistakes that we now pay for with exorbitant property taxes. Indeed, by following the state plan and putting development in the right places, it’s estimated that New Jersey taxpayers will save as much as $1.3 billion in capital costs over the next 20 years, and up to $400 million each year in operational costs.

Under my Executive Order, the agencies of state government will act with a unified voice and pursue policies that reflect the goals of the Plan when it comes to investing state resources. Within the next two years, under the Order, state agencies will also assist municipalities in designating the centers where most growth should occur, and assist our hard-pressed cities in developing Strategic Revitalization Plans.

To fight property taxes, to make sure development in New Jersey makes sense for people, we cannot retreat from where the State Plan points us. …

Short-term expediency as a way of avoiding the long-term public interest is, in the ultimate reckoning, a sure-thing losing cause.

Tragically, incoming Gov. Whitman systematically dismantled this legacy.

[Update: 9/3/22 –  As I wrote in “This Is What Regulatory Capture Looks Like”

Initially during the “Open for Business” deregulatory Whitman administration (1994 – 2002), DEP mangers formed what is now called the “Industry Stakeholders Group” (ISG). During the Whitman DEP, Commissioner Bob Shinn euphemistically called this a “re-engineering” initiative, whereby private corporations and their consultants were given carte blanche to literally re-design the air permit and enforcement programs and write the technical content of DEP air programs (this was where later DEP initiatives like “Technical Manuals” and “Permit Efficiency” came from).

(Skeptics can read Whitman’s STARR Report (see p. 46 summary) “Strategy to Advance Regulatory Reform” (Department of State, Office of Business Ombudsman, July 1995) and read Whitman’s first State of The State address for examples of her no holds barred assault on DEP and regulation. Whitman abolished the Office of Environmental Prosecutor via Executive Order #9 and created the anti-regulatory Business Ombudsman’s Office via Executive Order #15) Whitman sought to roll back stricter NJ state standards to federal minimums via Executive Order #27. These are just a few of Whitman’s attacks that have been expanded upon by Gov. Christie and embraced by Gov. Murphy.)

And we’re now living with the consequences.

[Full disclosure: as a DEP staffer, I worked extensively “off the record” with Florio’s campaign, transition team, and Gov.’s Office on many of the above Florio leadership policies and initiatives. I faced retaliatory discipline by DEP managers – who were withholding information, erecting roadblocks, and resisting Florio reforms – for insubordination for some of that work (twice). This “prior record” subsequently was used against me by Whitman’s DEP Commissioner Bob Shinn as “third strike” grounds for dismissal for my leaking documents that proved Whitman and Shinn knowingly and intentionally were lying to the public and covering up public health risks from toxic mercury.]