The signing statement – Jersey style

Posted on August 11, 2008 by

Corzine signs modest legislation that shows Trenton not serious about global warming
“… In recent years, our politics has tended toward incremental proposals made up of small policies designed to avoid offending special interests, alternating with occasional baby steps in the right direction. Our democracy has become sclerotic at a time when these crises require boldness.”
Al Gore
http://comment-blog.advance.net/cgi-bin/mte/mt-search.cgi?tag=Al%20Gore&blog_id=2882
President Bush has been criticized for the practice of issuing “signing statements” that are appended to bills passed by Congress. These statements basically say he reserves the right to violate laws passed by Congress. Bush takes the extreme position that he has “inherent powers” as “Commander in Chief” that can not be limited by Congress.
Former Boston Globe reporter Charlie Savage won the 2007 Pulitzer Prize for reporting on how Bush had gutted hundreds of laws by issuing signing statements, most recently to allow Bush to bypass laws banning torture and imposing conditions on appropriations of Iraq war funding. See: http://www.boston.com/news/specials/savage_signing_statements/
Because Congress speaks for the people, the Bush view of Presidential power is a fatal blow to democratic principles and the constitutional scheme of separation of powers.
Here in progressive NJ, we respect the Constitution – if not democratic principle – so we reject the radical Bush doctrine.
But we gut law and over-ride democratic principle in more subtle ways – the old fashioned way, so to speak.
In contrast to Presidential “signing statements”, Legislative intent statements are perfectly valid. In fact, a legislative Committee that releases a bill often will issue a Statement regarding the intent of the bill. At times, clever technical legislative drafting, backed by a Statement, can essentially gut a law before it even becomes law.
This rather cynical practice allows the bill’s sponsors to claim political credit for championing a popular cause, but without really doing much of anything (precisely the “baby steps” to avoid offending special interests that Al Gore righteously rails against).
Follow along for a recent case in point.
Polls of NJ voters show that solutions to global warming are an incredibly popular issue. Current NJ law – the 2007 Global Warming Response Act – calls for deep reductions in green house gas emissions. Accordingly, Governor Corzine and an overwhelming majority of Trenton legislators support taking steps to reduce emissions (or at least creating the appearance of doing so!).
Last week, Govenror Corzine quietly (i.e. no individual bill press release or public event was held) signed new legislation (A1559/S1788) related to global warming. For Corzine’s press release (certainly no signing statement) See: http://www.nj.gov/governor/news/news/2008/approved/20080805.html
Killing two environmental holy grails with one stone, the new law would allow towns to consider “green buildings” and “environmental sustainability” in the municipal Master Plan.
Sounds HUGE and GREAT right? Global warming AND sustainable development addressed in the same bill?
Ahh, but when one actually reads the bill and the Legislative statement, one finds extremely small potatoes.
First, the bill merely enables enlightened towns to act (avoiding the now taboo practice of a “State mandate”, or what we used to call leadership).
Second, the municipal Master Plan authority is limited in terms of actually requiring the necessary set of changes in land use, zoning, site planning, architecture, engineering, building codes, environmental controls, and mitigation that are required to truly address the global warming and sustainability issues and achieve legislated emissions reduction goals (for example, those goals would require retrofits of existing buildings to install energy efficiency and/or renewable energy, such as solar rooftops. New development will be required to offset carbon emissions.)
And third – and here’s where the cynicism comes in – the Legislative statement basically says the intent of the Master Plan can not be implemented or enforced via changes in building codes (as the highlighted text below indicates):
SENATE ECONOMIC GROWTH COMMITTEE
STATEMENT TO
[First Reprint]
ASSEMBLY, No. 1559
STATE OF NEW JERSEY
DATED: MAY 8, 2008
The Senate Economic Growth Committee reports favorably
Assembly Bill, No. 1559 (1R).
This bill amends the “Municipal Land Use Law” (C.40:55D-1 et
seq.) to allow a municipal planning board to include in a
municipality’s master plan a green buildings and environmental
sustainability plan element providing for, encouraging, and promoting
the efficient use of natural resources and the installation and usage of
renewable energy systems, considering the impact of buildings on the
local, regional and global environment, allowing ecosystems to
function naturally, conserving and reusing water resources, treating
storm water on-site and optimizing climatic conditions through site
orientation and design. This bill is not intended to modify or
supersede the State Uniform Construction Code.
http://www.njleg.state.nj.us/2008/Bills/A2000/1559_S3.PDF
So, next time the Governor or your local legislator exclaims his/her strong commitment to tackling global warming, ask to see it in the fine print.

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13 Responses to The signing statement – Jersey style

  1. Politburo says:
    August 11, 2008 at 11:23 AM

    “the Legislative statement basically says the intent of the Master Plan can not be implemented or enforced via changes in building codes”
    The legislative statement only says that the bill is not intended to be a modification of the UCC. Even without the statement, local governments couldn’t use the building codes to implement any green Master Plan items, because the code is generally controlled by the State government. Municipalities can still use ordinances, zoning and land use restrictions to further green development, but I’m not an expert in that area and I don’t know how successful that would be as compared to a change in building codes.
    Master Plans must be prepared to the specifications set forth by the law and implementing regulations. Without this change in law, I do not believe that municipalities could consider these environmental elements in their Plans. While only allowing these items to be considered isn’t substantial progress on the issues, the situation just isn’t comparable to the Bush signing statements.

  2. nohesitation says:
    August 11, 2008 at 1:34 PM

    Politburo – Thanks for comments – to clarify, I was not equating or comparing Legislartive statements and Corzine press release with Bush signing statements. As a matter of fact, to the contrary, I very clearly lagally distinguished and contrasted them. One can write about 2 different topics ina relational way, no?
    The UCC needs to be changed to require various energy related and sustainability measures. So, enabling local Master Plan authority at local level without state law change is limited.
    In NJ land use law, zoning and local ordinances do NOT have to absolutely conform to the Master Plan, so this is anotehr weakness.
    My major poiints were:
    1) bold changes are required to address the global warmign crisis, yet the Gov adn legislature are playing games with small bore actions; and
    2) democratic (small d) preferences are manipulated by how NJ legislates.

  3. nohesitation says:
    August 11, 2008 at 2:13 PM

    Politburo – you admit:
    “I’m not an expert in that area and I don’t know how successful that would be as compared to a change in building codes.”
    Well, as I stated, here is the mix of regulatory tools (at the state and local level) that will be required – if Corzine and the legislature were serious, these are the laws they would be changing. Laws would be mandates and provide regulatory power, not just incentives and voluntary compliance – but the NJ Builders Association would be HOWLING! The fact that they only revised enabling Master Plan authority is so small bore as to be revealing:
    “Second, the municipal Master Plan authority is limited in terms of actually requiring the necessary set of changes in land use, zoning, site planning, architecture, engineering, building codes, environmental controls, and mitigation that are required to truly address the global warming and sustainability issues and achieve legislated emissions reduction goals (for example, those goals would require retrofits of existing buildings to install energy efficiency and/or renewable energy, such as solar rooftops. New development will be required to offset carbon emissions.)

  4. Politburo says:
    August 11, 2008 at 2:37 PM

    I guess my question is that if the leg and press release are not signing statements, why did you have a several paragraph intro about signing statements and why is it in the headline? It was a rhetorical trick designed to equate the two while simultaneously being able to claim you’re not equating them.. but this is ultimately irrelevant to the meat of the piece.
    I completely agree with your first major point. I’m not so sure I understand the second. Is your argument saying that the legislature is stifling democracy by not allowing municipalities the full power to enact green changes?

  5. nohesitation says:
    August 11, 2008 at 2:45 PM

    Politburo – what I did was find a hook and narrative to write my story around.
    The media completely ignored the Govenropr’s press release I linked to, so I could not write a straight: John Ciorzine sign bills” story.
    There is no environmental reporter at the Star Ledger, and other papers just aren’t paying attention.
    My hope is writing this is to educate interested people adn maybe genrating news coverage.
    My second summary point about frustrating democracy is that Legislators can PRETEND to be acting in the interests of constituents. Bush doesn’t even PRETEND, hw flat out flouts democratic controls on his power. NJ egislators do much the same thing, but in a legal and far more sophisticated way.
    The public wants action on global warming.
    Environmentalists let Trenton get away with lip service.
    The public needs to know this.
    Wolfe

  6. nohesitation says:
    August 11, 2008 at 2:48 PM

    One more point – it was a rhetorical trick –
    I assumed readers are far more interested in Bush violations of the Constitution that Jon Corzine’s minor legislative accomplishments.
    Don’t all headline writers do this?
    Don’t most journalists do the same thing when they write policy stories as human interest stories?

  7. Politburo says:
    August 11, 2008 at 2:51 PM

    You are arguing that just because it’s in the Master Plan doesn’t mean it becomes reality via zoning, LU, etc. I agree. However, at the same time, just because the Master Plan doesn’t automatically make something reality doesn’t mean that it won’t happen via the zoning board, etc., if the municipality truly wishes the changes to be made. As I understand the process, certain items have to be in the Master Plan in order to give the municipality the authority to zone and enact planning ordinances, etc.
    I guess basically I agree with all of your criticisms of this law, but I feel like you’re failing to acknowledge that it does give municipalities one more tool that they didn’t have before.

  8. nohesitation says:
    August 11, 2008 at 2:59 PM

    I agree that it clarifies existing law (for those towns and judges that take a conservative narrow view of their delegated authority). But I think you could find all these objectives under the existing MLUL – you should read Judge Feinberg’s decision (Mercer County Superior Court) in the recent challenge to the Hopewell zoning ordinance, which was based on sustainable water supply. These new objectives are :
    green buildings and environmental
    sustainability plan element providing for, encouraging, and promoting
    the efficient use of natural resources and the installation and usage of
    renewable energy systems, considering the impact of buildings on the
    local, regional and global environment, allowing ecosystems to
    function naturally, conserving and reusing water resources, treating
    storm water on-site and optimizing climatic conditions through site
    orientation and design.

  9. nohesitation says:
    August 11, 2008 at 3:04 PM

    Politburo – on the more important issue you raise, i.e. whether real action will happen:
    I disagree.
    This bill is a set back to real legislation. It takes all the wind out of the sails, becuase now the legisalture can say the law has been fixed.
    This makes it HARDER to get a real land use/global warming related bill passed.
    If legislators and the Governor can pretend and get praise for doing so little, why should they take on the real heavy lifts?

  10. blarneyboy says:
    August 12, 2008 at 6:57 AM

    IF SOLUTIONS TO GLOBAL WARMING ARE A POPULAR ISSUE, HOW ARE WE SOLVING RED CHINA’S EVER-INCREASING CARBON FOOTPRINT?
    THEY ARE NOW THE LEADING MANUFACTURER IN THE WORLD, AS WE MOVE OUR INDUSTRY(AND JOBS) THERE. OUR PENSION FUNDS INVEST IN RED CHINESE INDUSTRY ON A MASSIVE SCALE.
    YET, THEY HAVE BEEN OPENING A NEW, COAL- FUELED POWER PLANT EVERY WEEK! IN ENGLAND, THERE ARE PROTESTS FOR TRYING TO OPEN THEIR FIRST NEW COAL-FUELED POWER PLANT IN OVER THIRTY YEARS. WE DON’T OPEN THEM HERE, EITHER, AS FOOL IS INCREASING CONTROLLED BY OUR SAUD AND RUSSIAN ENEMIES.
    HAS GREED OF OUR INVESTORS AND CORPORISTS SO BLINDED US THAT WE CAN’T SEE THE TRUTH THROUGH THE COMMUNIST SMOG?

  11. blarneyboy says:
    August 12, 2008 at 9:46 AM

    I’m the “fool”, I meant “fuel”. Sorry readers.

  12. isbjorn1 says:
    August 21, 2008 at 12:35 AM

    As I was reading this piece, I was struck by how well it is written–the hed, the deck, the epigraph, the lede, and the development of the piece itself. I will probably use it an example in writing courses I teach in the future.
    The use of an implicit comparison (“–Jersey style”–in the hed) of Bush’s signing statements to Corzine’s actions to get readers’ attention–and the first few paragraphs are not just fluff or irrelevant to the heart of the piece. Nor do I see the this comparison as simply a rhetorical ‘trick.’
    Of course it is partly that, and yes, it is a commonly used device. At national mags I edited in NY on and off for 2 decades we did this regularly w/both headlines & cover lines.
    If these are “sexy” enough, the reader will indeed read and will get to
    “Here in progressive NJ, we respect the Constitution – if not democratic principle – so we reject the radical Bush doctrine. ”
    Terrific. Makes us Jerseyans think we’re better than the average US citizen. But then we get caught off guard by
    “But we gut law and over-ride democratic principle in more subtle ways – the old fashioned way, so to speak.”
    And the push-and-pull of this is terrifically engaging:
    “In contrast to Presidential ‘signing statements,’ Legislative intent statements are perfectly valid. In fact, a legislative Committee that releases a bill often will issue a Statement regarding the intent of the bill. At times, clever technical legislative drafting, backed by a Statement, can essentially gut a law before it even becomes law.”
    These are traditional journalistic devices used by the best feature writers as well as columnists and reporters.
    And they make it challenging and fun for us readers–lulling us into comfort then bringing us up by the short hairs (excuse the vulgarity).
    The Bush material is compelling–certainly not a waste of space no matter how you use it to compare, contrast, or otherwise get readers to think about our home state later in the piece.
    The entire article is clear, witty, clever, and very informative; I, for one, learned a lot.

  13. nohesitation says:
    August 21, 2008 at 10:23 AM

    Hey isbjorn1 – WOW! Thanks for a nuanced and well written analysis of the post.
    Frankly, it is only upon reflection that I fully understand what you say. I did not consciously lay out the narrative in a premeditated fashion by intentionally deploying the writing techniques you describe.
    I just wish our real “professional” “journalists” had half the knowledge and integrity that you bring here. (those “quotes” ARE intentional!)
    Wolfe

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