Obama’s EPA Choice Pending

This is a long and difficult post for me to write given my personal involvement, but, given the stakes, I feel obligated to do so. The views expressed here are solely my own and are not meant to disparage anyone personally, but instead are intended to focus on public policy.
Media speculation is heating up over who President Elect Obama will nominate as Environmental Protection Agency (EPA) Administrator.

Not surprisingly, NJ Senator Frank Lautenberg (D) and some NJ based environmental group lobbyists are cheerleading for the home town candidate, Lisa P. Jackson.

Bill WolfeLisa P. Jackson, Commissioner of NJDEP, testifies before the Senate Regulatory Oversight Committee on May 1, 2008, to defend proposed toxic site cleanup standards and water quality management planning regulations.

Since 2006, Jackson served as Governor Jon Corzine’s Department of Environmental Protection (DEP) Commissioner and recently resigned to become Corzine’s Chief of Staff. Prior to that, Jackson served under former Commissioner Brad Campbell for 4 years as DEP Assistant Commissioners for Enforcement and later for Land Use Management. Before joining NJ DEP, she was a longtime EPA staffer in the Superfund toxic site cleanup program. She is a trained chemical engineer, with a masters degree in Chemical Engineering from Princeton.
Let me begin by noting that personally, I like Jackson. She is a people person and her heart is in the right place. The record shows that at the outset, I praised her nomination by Corzine as DEP Commissioner (sorry, can’t find a link to the Star Ledger article archive for the quote). At the time, I felt that Jackson might help take some of the politics out of the scientific and regulatory policy decision-making at DEP, which had become overly politicized and media driven during the Campbell tenure (full disclosure: I was directly involved and worked for Campbell).
I also praised Jackson – who hails from New Orleans – for media remarks that drew a moral line in the sand in support of strong flood control rules (a stand she later compromised in the regulatory fine print) and her legislative testimony in this January 30, 2008 NJ Vocies post:
“In articulate, substantive, and at times charming testimony, DEP Commissioner Lisa P. Jackson had the Senate Environment Committee completely under control on Monday. The Commissioner presented her 2008 priorities, and responded to mostly softball questions from the new Committee.”

http://blog.nj.com/njv_bill_wolfe/2008/01/hearing_casts_doubt_on_deps_ab.html
But I was wrong. Jackson has been a disappointment. Here’s the troubling inside story.
Her tenure as DEP chief has left the agency adrift, suffering from 3 consecutive years of budget and staff cuts and handcuffed by a hiring freeze. In addition, about 300 career professionals have been forced out by early retirement programs – thus DEP has lost institutional memory. Morale is low.
Jackson has shown questionable judgement. For example – on policy and management, she has allowed her Assistant Commissioner for Site Remediation to continue to badly mismanage the toxic site cleanup program.
And here’s where I lost confidence in Jackson. Her credibility was called into question by a highly misleading press release she issued jointly with the NJ Attorney General in response to the Kiddie Kollege mercury poisoning tragedy, where about 60 toddlers were poisoned by mercury in a daycare center that was a DEP regulated mercury former thermometer factory. According to Jackson:
“As soon as the DEP discovered that the formerly abandoned site was housing a day care center, inspectors moved in, took samples and shut it down,” said DEP Commissioner Lisa P. Jackson. “We remain committed to working with the AG’s office and DHSS to get to the bottom of this egregious and unconscionable situation. A day care center should be a safe haven — not a room full of toxic mercury.”
Lisa P. Jackson August 3, 2006 NJ Attorney General press release:
http://www.nj.gov/oag/newsreleases06/pr20060803b.html
But, as I documented and disclosed to the NY Times, Jackson knew that DEP failed to enforce a 1995 cleanup Order and that DEP “discovered” the problem at the day care center during the first week of April 2006. But instead of acting immediately upon “discovery” of the problem, DEP quietly negotiated a voluntary cleanup agreement with the owner and waited over 14 weeks before they sampled and notified parents on July 28, 2008. According to the NY Times:
“the site remained contaminated, and as far as the department knew, unoccupied, until inspectors visited it in April and found that Kiddie Kollege, a day care center serving children as young as 8 months old, was operating in the building. Yet the center, which is in Franklin Township, was allowed to remain open for more than three months, until state environmental investigators determined in late July that the site was still contaminated.”
Memo Shows Agency Knew of Danger in Child Care Building
http://www.nytimes.com/2006/09/01/nyregion/01mercury.html
For complete story of how the Kiddie Kollege tragedy emerged, see NY Times: After Mercury Pollutes a Day Care Center, Everyone Points Elsewhere
http://www.nytimes.com/2006/08/19/nyregion/19mercury.html
Disturbingly, Jackson: 1) eliminated the DEP’s Division of Science and Research; 2) proposed legislation to privatize the “broken” toxic site cleanup program; and 3) bowed to economic and political pressures from the builders lobby to “streamline” DEP land use permit and stream buffer protection programs (see “Permit Extension Act” and “Permit Efficiency Task Force”, respectively).
She has proven ineffective in saying “no” to the Governor, legislators, local officials, and powerful business interests, most specifically developers, energy, chemical, and pharmaceutical industries, who have called the shots behind the scenes on big environmental policy decisions.
Jackson negotiated a weak agreement under the northeast states’ “Regional Green House Gas Initiative” (RGGI) that – contrary to public understanding and expectations – not only fails to reduce or “cap” green house gas emissions, but would allow current emissions to increase by more than 10%. . Later, Jackson negotiated flawed implementation legislation and subsequently failed to meet regulatory deadlines to enable NJ to participate in the first RGGI auction in September. This is especially troubling, because the RGGI agreement is supposed to be the model for national “cap and trade” legislation during the Obama administration.
Similarly, Jackson missed a huge opportunity and failed to put forward a plan to meet the deep emission reduction requirements of the Global Warming Response Act. That law, signed by Corzine in July 2007, mandated that a plan be submitted by DEP by June 30, 2008 – almost 6 months later, no action.
Surprisingly, Jackson has dodged accountability for this monumental failure, largely because focus on global warming was diverted to the “Energy Master Plan” being developed by the Board of Public Utilities. But that BPU plan applies only to the NJ based electric sector which is responsible for less than 1/3 of NJ emissions. Energy imports and GHG emissions from transportation and building sectors are not governed by the voluntary BPU plan. The fact that BPU – not DEP – is lead is a huge vote of no confidence in DEP and a show of the power of the energy industry. Failure by DEP to move forward on the regulatory front is particularly troubling given that DEP adopted rules to regulate green house gases as “pollutants” under NJ’s State air pollution law way back in 2004. This NJ leadership action anticipated that same issue which was decided last year by the US Supreme Court in the “Massachusetts v. US” case, where the Court found that CO2 is a “pollutant” regulated by the federal Clean Air Act. See: http://supreme.lp.findlaw.com/supreme_court/docket/2006/november/05-1120-massachusetts-v-environmental-protection-agency.html
The Bush EPA was denounced earlier this year, when it refused to move forward with regulations as directed by the Supreme Court. Yet, NJ DEP has failed equally to use existing regulatory authority to reduce GHG emissions, but has not received any criticism. See:
http://globalwarming.weblog.com/
http://www.mass.gov/Cago/docs/Environmental/AGTestimony6-07.pdf
There has been no action on other major NJ environmental priorities as well, including the critical Water Supply Master Plan, air toxics, environmental justice, and long promised reforms to the toxic site cleanup program.
Jackson repeated the troubling pattern of elevating politics and spin above science and sound public policy. For example, for stream buffer protection, floodplain management, and chemical plant security, Jackson exaggerated the benefits of these alleged “major initiatives”. However, a close reading of the fine print of the regulations demonstrated that they were rather modest and loophole ridden.
Jackson failed to lead and convince the Governor to strengthen the Highlands Regional Master Plan that was developed by the Highlands Council. The Council had proven to be dominated by local pro-development interests, who prevailed over the strict land preservation and water resource protection requirements of the Highlands Act. Instead of convincing the Governor to enact enforceable changes to the RMP, Jackson joined Corzine in a press conference touting an Executive Order that not only failed to strengthen the RMP, but it weakened DEP regulations and – contrary to the Act – effectively delegated important DEP regulatory powers to the local and pro-development Council. In contrast, the Highlands Act preserves DEP supremacy over statewide water resources. But when this DEP lead role proved politically controversial, Jackson caved in to local pro-development politics instead of strong science based statewide regulatory protections.
In closing, Jackson has very little to show in terms of positive accomplishments. For example, one of the few issues she claims to have demonstrated leadership on is the adoption of the Highlands regulations. I was intimately involved in drafting the Highlands Act while I was with DEP (when Jackson was AC for Enforcement) and later in negotiating the DEP implementing regulations as a consultant to NJ environmental groups (when Jackson was AC for Land Use). So I can assure you that she had virtually no role in those achievements. The fact that she now claims that those regulations are evidence of her leadership is resume padding in the extreme.
For a letter to President Elect Obama that lays out in more detail see:
Download file
For links to technical backp to support the letter, see:
http://www.peer.org/state/state_info.php?sid=nj