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Senator Sweeney (center) consults with Senate President Codey (right) on Senate floor

First I will lay out the general contours of the issue, and then I will provide the explosive goods. The goods will perfectly illustrate the problem. So bear with me.

It is no secret that Senator Stephen Sweeney (D-Gloucester), Senate Democratic Majority Leader, is a powerful force in South Jersey politics, the Legislature, and the democratic party. Sweeney knows how to wield that power.

It also no secret that Brad Campbell, former DEP Commissioner and one of the brightest environmental lawyers around, is no stranger to how the DEP makes decisions. Campbell has access to and knows how to influence DEP.

Former DEP Commissioner Bradley Campbell

What is a secret (to the public) and known among only a handful of insiders, is that Sweeney and Campbell have teamed up to pressure DEP to reverse a recent major pro-environmental decision (this link is only a teaser, read on).

Typically, when pro-environment DEP decisions have a major economic impact on a politically powerful interest, those interests work behind the scenes to pressure DEP managers to reverse the decision.  All too often, the DEP Commissioner caves in to the pressure and directly reverses the staff level decision. In other cases, the deal is not so obvious because the data, science and/or regulatory interpretations that formed the basis of the original decision are revised in a way to undermine the original decision (without leaving fingerprints of political intervention). These changes then force DEP to abandon the original decision and the result is that the the corporate interest prevails (some call this “Agency capture”).

Corporate interests and political DEP managers are enabled to do this under cover of secrecy. Deals are made behind closed doors. The public, the press, and environmental groups don’t even know good decisions were made by staff, never mind that they were reversed by high level managers due to political intervention. There is no transparency and accountability in the system. (Even without special political influence, DEP data show that over 95% of permits are approved by DEP. See latest DEP permit Report here.

The lobbyists, DEP managers and political appointees, and political dealmakers like things just fine this way.

Anti-environmental economic interests also benefit from a DEP staff that is intimidated and reluctant to blow the whistle, because DEP staff know that DEP managers retaliate and that whistleblower laws are weak. Few are willing to risk destroying their career and livelihood.

That’s why transparency at DEP is so important – and why we are working to enhance transparency at DEP.

That’s why whistleblower protections are so important – and why we are working to strengthen them.

That’s why ethical restrictions to limit political abuses are so important – and why we file ethics complaints and seek to strengthen ethics laws and their enforcement.

This is why we are fighting to stop the revolving door and influence peddling at DEP.

That’s why independent public science and scientific integrity are so important – and why we fight to defend them.

Well, every once in a while, this dynamic is reversed and the bright lights of media and public scrutiny make it very difficult if not impossible for the DEP Commissioner to cave in to political pressure.

I have a perfect example of how this all works:

In an August 20, 2009 letter to former DEP Commissioner Brad Campbell, DEP Assistant Commissioner Scott Brubaker made a scientific finding and determined that:

“[the Delaware Bay] is not appropriate for a large-scale wind turbine project due to “impacts to migratory and other bird populations.” and

“the Department has determined that we have, over many years of study and evaluation, developed sufficient information regarding the diversity, scope, and importance of avian resources in and around the Delaware Bay.  Based on these data, we conclude that, at this time, this area is not appropriate for a large-scale wind turbine project.” 

This is a fabulous decision. The Atlantic Flyway Council also opposed the project (see 7/28/09 letter) and the State of Delaware raised significant concerns (see letter)

Brad Campbell represents Delsea Energy, who are seeking DEP approval to put more than 100 wind turbines to produce more than 380 megawatts in the state waters of Delaware Bay.

The DEP rejection letter had been preceded by a closed door June 11, 2009 meeting with Senator Sweeney and DEP Commissioner Mauriello. Clearly, Campbell thought he had DEP support, in the wake of the June 11, 2009 meeting with Senator Sweeney and DEP Commisisoner Mauriello. After that meeting, Mauriello and Campbell had a private conversation that led Campbell to believe that he had DEP support for the project, or that DEP objections were minor or technical in nature.

DEP Commissioner Mark Mauriello

Instead, the DEP August 20 rejection letter clearly took Campbell by surprise because in an August 25, 2009 personal email to DEP Commissioner Mark Mauriello, Campbell complained:

“When you and I spoke, you said to expect a letter from land use suggesting a meeting to review technical concerns about the Delsea monitoring application”.Did I misunderstand, or has the Department’s position changed from what you described?…Is it really the Department’s view that private parties will not have the opportunity to collect data that might modify, rebut, or qualify F&W’s broad conclusions about the entire Bay?  I don’t want to protract a debate or impose unduly on your time, but the [August 20] letter is quite different from what I expected based on our conversation.”

So, there it is: a powerful Senator calls DEP on the carpet at his State House office in a private off the record meeting with the DEP Commissioner, the former DEP Commissioner and Delsea Energy.

But DEP scientists are not a party to the deal and object.

Campbell then objects to the DEP decision off the record in an email to the Commissioner.

Typically,  with this high powered political pressure brought to bear, such a decision would be reversed.

But now that folks are watching, let’s see what happens!

Oh, BTW – no way DEP Commissioner Mauriello would meet with Sweeney without the knowledge and approval of the front office – so Governor Corzine’s position on this project needs to be established. Will he back DEP scientists?

Check this story out – Herb Jackson of the Bergen Record calls out EPA Administrator Lisa Jackson and the Record gets the headline exactly right [link to story]:

EPA chief’s spin on DEP audit

Tuesday, September 1, 2009

BY HERB JACKSON – WASHINGTON CORRESPONDENT

New Jersey can improve the way it checks the quality of information it gets from contractors cleaning hazardous waste sites, but the program is not badly managed, the nation’s top federal regulator said Monday.  

An audit released Friday by the U.S. Environmental Protection Agency criticized the state’s Department of Environmental Protection for failing to implement improvements it promised to make in 2006. It also said officials in the DEP office responsible for hazardous site cleanups were not doing enough to check the work of contractors.

“The EPA assessment team was told that responsible party contractors and/or DEP contractors are ‘certified professionals taken at their word,’ ” the audit said.

Let’s repeat EPA’s audit finding:

“Finding 8: None of the Site Remediation Program’s bureaus interviewed do any project assessment and/or process improvement beyond data validation, (i.e. no field audits, no split samples, no internal assessments, etc). The EPA assessment team was told that Responsible Party contractors and/or NJDEP contractors are “certified professionals and taken at their word.” (link to report here)

What is Jackson’s alleged factual basis for that claim that EPA audit found that DEP programs are not badly managed? According to Jackson:

Lisa Jackson, EPA Administrator. Photo taken when she was NJ DEP Commissioner

“The audit came out, that’s a good thing. I read about it like other folks did,” Jackson said. “My understanding of this audit was it was about data quality, not about program management. Here’s an opportunity to strengthen that.”

First of all, the audit didn’t just “come out“. It was NOT released by EPA or DEP. Negative audits are always buried. The audit was leaked. I received a copy and publicly disclosed it. 

Jackson is wildly spinning the EPA audit findings by trying to distinguish poor data quality and lax oversight of the polluters’ consultants, from competent program management and failure to honor her written commitments to EPA. 

Last week’s EPA audit was not the first documentation of management problems at DEP.  A PRIOR 2008 EPA Inspector General’s Report found that the DEP site remediation program was so poorly managed that EPA had to take over control of many NJ sites where DEP had allowed cleanups to flounder.

As a chemical, engineer (with a Master’s from Princeton) surely Jackson knows that poor data quality leads to flawed analysis and poor decisions that jeopardize people’s lives and the health of the environment. 

Perhaps Jackson never took a management class? Surely she knows that a manager is responsible for data quality, verification, and program design? Failing to inspect site to field verify toxic site cleanup compliance is a management issue. Taking a consultant for a polluter “at his word” is a program design issue. Environmental programs are designed to reflect policy goals. Lax DEP oversight and enforcement are not accidents. They are built into the design of programs to reflect a a hands off policy.

Jackson, who spent 16 years in the EPA toxic site cleanup program seems to have forgotten history as well.

Surely she knows that DEP’s lax oversight and deference to private sector consultants reflects a hands off policy at DEP that began in 1993 with the few dozen sites in the Florio administration’s “developer’s track” program. That program was designed to prioritize sites with investment backed bona fide redevelopment that was ready to go at the local level. These sites still were subject to strict DEP oversight and enforcement, but were pushed to the front of the DEP review line to expedite decisions so that real developments would be built. That small program was greatly expanded by Whitman in 1995 to several thousand sites in the “voluntary cleanup program“. Whitman’s policy was designed to privatize decisions, cut cleanup costs, and reduce DEP oversight and enforcement powers. Whitman no longer required a bona fide redevelopment. The pace and extent of cleanup was set by the economic interests of the polluters and redevelopers, not environmental and health risks. This is the logic of “brownfields” program enacted into law in 1997. That policy has now come to its logical conclusion in the completely privatized “Licensed Site Professionals (LSP) program, where polluters are now  “taken at their word” and government oversight is practically non existent..

Perhaps Jackson also forgot she championed the LSP program while at DEP? Maybe she forgot that she testified to Senate Environment Committee Chair Barbara Boxer during her Senate confirmation hearings that she would NOT pursue her lax LSP oversight policy while at EPA?

Perhaps Jackson is spinning so hard because the EPA audit was critical of Jackson’s own management performance and because EPA criticized Jackson’s own failure to make the changes she pledged to EPA in writing to make? Let’s get back to that excellent Bergen Record story:

“EPA Administrator Lisa P. Jackson, who had promised to make improvements when she was New Jersey’s DEP commissioner for two years until late 2008, would not comment at a news conference when asked why they had not been made.

Jackson said she agreed when she took over the EPA to recuse herself from involvement with any actions she took as New Jersey’s commissioner. A spokesman said the recusal is designed to prevent Jackson from influencing EPA employees to act one way or another regarding New Jersey.”

That’s more spin – recusal is like pregnancy. You can’t be partially and selectively recused. If Jackson was recused from NJ, then why does she choose to make this very selective and misleading comment which was clearly intended to say there was no managment problem at her own DEP?:

“The audit came out, that’s a good thing. I read about it like other folks did,” Jackson said. “My understanding of this audit was it was about data quality, not about program management. Here’s an opportunity to strengthen that.”

As I’ve said, poor data quality is a management issue. Failure to meet your commitments to EPA is a management issue.

Lisa Jackson’s spin doesn’t change any of those inconvenient facts.