WolfeNotes.com

This is a Washington DC national policy level appointment, so it effects all of us.

From our good friends at PEER:

Today is “Made in NJ Day” (No, Not Goodfellas “made”)

A Lousy Riff on “My Dinner With Andre“

[Update 2 – 3/17/11 – This issue is so important it deserves its own post, but for now I’ll make the point in this update.

I went to Trenton today to hear the Assembly debate the Christie federal standards rollback bill, which was posted for floor vote.

[Update: 3/15/11 - In writing the story of this bill, the Star Ledger failed to target the source of the problem and hold Governor Christie accountable for his policy (see: Assembly delays vote on bill barring N.J. agencies from making rules stricter than federal standards.

Could that be because they are listening to Dave Pringle, who has frequently provided cover for the Governor?

Environmentalists have lobbied hard against the bill, calling it a blatant giveaway to polluting industries. David Pringle, political director of the New Jersey Environmental Federation, said federal standards are supposed to be a floor that states can exceed if they choose.

“It’s clear that the drive behind this legislation is to make it harder to have strong, appropriate public health and environmental standards,” said Pringle. “It sends the wrong message. The federal government plays the lowest common denominator.”

Curious, I never heard Pringle once criticize Christie for issuing Executive Order #2, the real “drive behind the legislation“. EO #2 adopts the same federal standards policies. And EO #2 is even worse that the Burzichelli bill in one key regard: it is broader and would apply to the re-adoption of existing rules, so it is real rollback. In contrast, the legislation was amended and would exempt the re-adoption of existing rules.

Maybe Dave and Star Ledger reporters should read Star Ledger editorials, like this July 6, 2010 editorial criticizing the bill:   New Jersey politicians shouldn’t meddle with science.

But while this editorial correctly addresses the delegation doctrine issues and politicization of science by putting the legislature in charge of rules, , it too fails to target the Governor as the source of the federalism policy. Why is it so hard to get all the issues addressed in one place? There are only three: 1)Christie EO as the source of the problem; 2) federal standards; 3) politicization of science.

BTW, the Burzichelli excuse for why the bill was held is a lie. The bill was amended and already has an exemption for emergency rules. Leadership blocked the bill. End update]

Soon after I got there, I got a call and was invited to a meeting with a reporter for a major metropolitan newspaper, when Jeff Tittel popped in to advise that the bill had been held. I was just explaining the problem of delegation and modern doctrine of administrative law since the US Supreme Court’s 1935 Panama and Schechter Poultry New Deal decisions (professors Nate Hackman and Ted Lowi would be proud), when Jeff blurted out something about the Tea Party, Koch brothers, and a Democratic fundraiser …

So, off I wandered through the Statehouse chaos, where, according to the NJ Business and Industry Association (BIA):

Made in New Jersey Day is a celebration of New Jersey’s manufacturing industry, organized by NJBIA. Twenty-four New Jersey manufacturers will display their wares in  the halls of the State Capitol and tell their stories to state legislators…

These key policymakers will be able to see the interesting array of products that are still being made in New Jersey and learn more about the challenges manufacturers face doing business in New Jersey.

I immediately realized the opportunity to hear these stories and learn firsthand about “the challenges manufacturers face”.

I also decided to conduct my own infomal, ad hoc, non-statistically valid, opinion poll (is that enough caveats?).

While my poll is not valid, it is no less rigorous that NJBIA’s poll of its membership. NJBIA relies on that poll to lobby. Like mine, NJBIA’s poll  is not only statistically invalid and biased, it is based on anecdotal personal perceptions of businessmen, not on facts and data.

I spoke briefly and cordially with representatives of about half the 24 NJ manufacturers with displays.

I wanted to understand how they perceived the impacts of environmental regulations and DEP permitting on their specific businesses.

I also sought to test their knowledge of the claims and legislative policies being advocated by NJBIA lobbyists and to ask whether these claims jibed with their business experience and whether they agreed with them.

I specifically asked each business representative the following:

• Do you have DEP permits? If so, what is your take on the impacts of environmental regulations and DEP permitting on your business practices? Please provide specific examples.
• are environmental requirements discouraging investments in expansion of production or retention of jobs?
• are environmental requirements driving production, investments, or jobs to locations in other states or countries?

After briefly discussing these questions, I asked more:

• are you aware that NJBIA lobbyists have claimed that environmental requirements are a major factor in the economic recession and loss of jobs in NJ?
• Do you agree that environmental requirements make NJ uncompetitive and drive manufacturing jobs to other states? If so, how? 
• are you aware that NJBIA lobbyists are seeking across the board rollbacks in NJ’s environmental laws and standards?
• Are these NJBIA claims and rollback policies consistent with your corporate philosophy and/or policies?

I got some interesting answers.

A few manufacturers said that environmental requirements had helped them economically by creating new markets, new products, satisfying consumer demands for environmentally friendly products, or serving marketing objectives by presenting the company as a good environmental steward (again, in response to public demands).

One explained how DEP restrictions improved his company’s handling of toxic heavy metals – which he said was not only good business, but reflected his personal concern for taking care of the planet’s health for his children and grandchildren (several business folks said something along these lines in personal support of the environment, and I think it was sincere and not merely corporate PR).

Based on these interviews, it seems like the NJBIA membership companies are philosophically far more more enlightened than their lobbying positions.

Only one company took the hardline NJBIA attack, Nustar Energy (Valero L.P. and Valero GP Holdings, LLC are now NuStar!)

So, after a brief but fierce “debate” – during which a Mr. Doug Brown from Nustar said his pro-environment business colleagues were “lying” to me - I felt compelled to remind Mr. Brown of the #1 corporate “Guiding Principle” on the huge placard displayed right behind him and then asked him how he reconciled the contradiction between attacking DEP and environmental regulations and adhering to his #1 corporate principle:

"1. Take care of yourself, others and the environment"

With the exception of Nustar, no other company could provide specific examples of how DEP hurt their businesses or would agree with NJBIA claims or policies advocated.

When I suggested I understood Nustar’s dinosaur perspective because there were inherent conflicts between oil refining and environmental protection, the Nustar spokeperson said Nustar was not just an oil company, but an energy company. So I then asked Mr. Brown - but he couldn’t provide an answer - how much Nustar was investing in non fossil fuels and alternative energy R&D or production. Earlier, I had seen Whitman Administration former DEP Deputy Commissioner Mark Smith at the Nustar display, so assumed Brown was up to speed on these kind of issues. I asked if Mr. Smith was with the company. Brown stated he had just met Smith and that he was Nustar’s lobbyist. Given NJ’s energy policies, I hope Mr. Smith is more knowledgeable than Mr. Brown and finds some time to give him a call to brief him on those policies.

So, after all this heavy lifting, I worked up quite an appetite, which gets us to the title of this post.

After the NJBIA heavyweights had their fill at the lunch trough, I stuck my head in the room and asked for alms for the poor - and the kind folks at NJBIA obliged!

Who said there’s no free lunch!

How’s That Oyster Creek 10 Year Deal Looking Now, Governor Christie?

[Update 2: 3/28/11 – Guess it’s not “safer than working in a grocery store” (more Whitman lies). Bergen Record story

The frantic effort to get temperatures down and avert a widening disaster has been slowed and complicated by fires, explosions, leaks and dangerous spikes in radiation. Two workers were burned after wading into highly radioactive water, officials said.

Update 1: 3/23/11 – Too late Larry! DEP and Governor Christie should have thought about this before cutting the deal to eliminate cooling towers, which allowed the plant to operate for 10 more years: U.S. court questions Oyster Creek nuclear license after Japan disaster

Insisting the plant is safe, Larry Ragonese, a spokesman for the state Department of Environmental Protection, said his agency is reviewing Oyster Creek’s design plans in the wake of the Japanese incident “just to see if there aren’t any lessons that need to be learned here.”

File this under “S” for “sickening” (or “shocks the conscience“) – and the hell with copyright laws, here’s the whole thing:

Delaware River (looking north towards watergap)

[Update: 3/15/11 – I guess nobody at the Ledger reads Wolfenotes, because today they again ignored the elephant (see second issue below). In writing the story, the Ledger failed to target the source of the problem and hold Governor Christie accountable for his policy (see: Assembly delays vote on bill barring N.J. agencies from making rules stricter than federal standards.

Could that be because they are listening to Dave Pringle, who has frequently provided cover for the Governor?

Environmentalists have lobbied hard against the bill, calling it a blatant giveaway to polluting industries. David Pringle, political director of the New Jersey Environmental Federation, said federal standards are supposed to be a floor that states can exceed if they choose.

“It’s clear that the drive behind this legislation is to make it harder to have strong, appropriate public health and environmental standards,” said Pringle. “It sends the wrong message. The federal government plays the lowest common denominator.”

Curious, I never heard Pringle once criticize Christie for issuing Executive Order #2, which adopts the same federal standards policies.

And EO #2 is even worse that the Burzichelli bill in one key regard: it is broader and would apply to the re-adoption of existing rules, so it is real rollback.

The legislation was amended and would exempt the re-adoption of existing rules. BTW, the Burzichelli excuse for why the bill was held is a big lie. The bill was amended and already has an exemption for emergency rules. Leadership blocked the bill. End update]

Going through the NJ news this morning, and realize its time to shut off the computer and get out on my bike before my fracking head explodes!

I just read back to back environmental stories on major issues, and both newspapers got it wrong on the most critical factor.

I am not talking about nitpicking, in the weeds, wonky details – but big and basic issues: the proverbial elephant in the room.

I’ll start with this Star Ledger editorial on fracking: “Halt gas drilling until water safety is assured”:

The Delaware River has become a precious economic and recreational resource, vital to the economies of towns that thrive along its banks. It’s beyond question that the need for clean-energy sources is a pressing national need, but fracking shouldn’t proceed unless the safety of our water is guaranteed.

I of course agree with the Star Ledger’s recommendation and have written exactly the same thing myself, i.e. “The burden to prove that fracking can be done safely is on the gas industry. They have not come close to meeting that burden” – Fracking Debate: “Our Water, Our Future“).

But the Ledger editorial badly misses the mark on how that objective (i.e. a “halt [to] drilling“) would be implemented and who is responsible for implementing it in NJ.

As the Star Ledger correctly notes, the primary fracking risk to NJ’s water supply is from gas drilling located in NY andPennsylvania, in the Delaware River watershed (there are significant other risk ignored, including: 1) gas pipelines through NJ to serve NY markets; 2) imporation of fracking watewater; 3) huge greenhouse gas emissions. Natural gas is a fossil fuel, and EPA just revised GHG emissions from natural gas – they are closer to coal. See: Climate benefits of natural gas may be overstated; and 4) the economic reality that cheap and abundant natural gas undermines much needed investments in non carbon renewable energy sources.

The Ledger also correctly targets the regulatory body that manages risks to that river, the Delaware River Basin Commission (DRBC).

There will be no fracking in NJ, so any legislation banning it or imposing a moratorium in the state of NJ, while well intentioned, is a symbolic hollow gesture.

This is not just my criticism – both Senate (Gordon) and Assembly (Wagner) sponsors themselves have acknowledged that ban or moratorium legislation would have no impact, is “symbolic”, and is meant to “send a signal”. The Star Ledger must know this, as those remarks were made by legislators on the record during legislative hearings (see: Assembly Hears Fracking Compromise).

But there is one elected government official in NJ responsible for the risks from fracking in NJ – Governor Chris Christie.

The Legislature has delegated power to Governor Christie to represent NJ’s interests on the Delaware River Basin Commission.

Any power delegated by the Legislature to the Governor can be modified or revoked by the Legislature, so any claim of “separation of powers” doctrine to avoid legislative action is a sham excuse and nothing more than grovelling before the Governor. 

Christie’s DEP Commissioner sits on the DRBC and is supporting proposed draft DRBC regulations.

Those DRBC regulations are seriously flawed and their adoption by DRBC would end the current DRBC moratorium on fracking.

Lifting the current DRBC moratorium would open the door to over 18,000 wells in NY and Pennsylvania, according to DRBC. Those wells would use over 100 BILLION gallons of water; generate more than 25 BILLION gallons of toxic hazardous wastewater with unsafe levels of radioactive contaminants; and destroy over 150,000 aces of forests and farms, more than all the land protected by the NJ Highlands Act.

Both Houses of the Legislature have spinelessly withdrawn strong bills that would prohibit the Governor from approving DRBC regulations. Citing a constitutional “separation of powers” issue (a so called legal opinion which was never even rendered by OLS in writing, but communicated by OLS to Senator Beck in a phone call just minutes before Thursday’s hearing), legislators now refuse to take on Christie under a sham pretext of a separation of powers issue. That’s bad enough.

But surely the Star Ledger editorial writers know all this – so how could they possibly ignore it and give Christie a pass?

If I were a cynic, I might suspect that they and NJ legislators merely want to make it appear that they oppose fracking while knowingly allowing it to happen.

The second example is today’s Bergen Record story: Business-friendly vote up for vote in N.J. Assembly

A sweeping bill to prevent New Jersey from adopting rules that are more stringent than federal standards is up for a vote in the Assembly on Monday and has environmentalists worried that it could undermine the state’s efforts to control pollution and development.

This one is a litttle harder for me to swallow, for two reasons.

First, I have been writing about the issue furiously and in detail here at Wolfenotes for over a year – that issue is Governor Christie’s regulatory policy – more specifically, his “federal consistency” policy in Executive Order #2. That policy seeks to restrain strict NJ state standards by DEP in favor of weaker national EPA standards.

The legislation involved (A2486 2R) (Burzichelli, D-Oil) would codify the Christie federal consistenty policy – and go even further by prohibiting proposal of rules “not specifically authorized” by the legislature, a provision the sponsor stated would require legislative approval of more stringent rules prior to agency proposal. This would put the legislature in charge of rulemaking, a radical rollback in the modern framework of Administrative and environmental law, which are founded on a broad delegation doctrine, where the Legislature delegates power to executive branch agencies to use their scientific expertise to fill in the details of complex legislation.

The second reason is because the Bergen Record itself already previously correctly wrote the story about the risks of relying on federal standards (see:  New Jersey backs off plans to test water suplies for chemical found in rocket fuel).

The Record then editorialized about it (see: Cleaner Water)when they wrote about NJ  DEP’s failure to adopt NJ State drinking water standards for the chemical perchlorate, in lieu of waiting for federal standards.

(please see this for all supporting documents: RATIONALE FOR NEW JERSEY WATER QUALITY DELAY IS BOGUS – Commissioner Claim of Imminent EPA Perchlorate Action Contradicted by E-Mails

Trenton – A decision last month to abandon a multi-year effort to stem the spread of perchlorate, a chemical found in rocket fuel, by New Jersey’s Department of Environmental Protection Commissioner on the grounds that federal regulation will soon be forthcoming is belied by e-mails from the federal experts who briefed state officials, according to documents released today by Public Employees for Environmental Responsibility (PEER). As a result, New Jerseyans will be exposed to growing levels of this dangerous chemical for several years to come without any governmental protection. (Note: this all led to this superb cartoon)

Bergen Record

The elephant is again Governor Christie.

Christie adopted Executive Order #2 during the first hour of his first day in office (see: Christie off on the “Right ” Foot – Executive Orders Attack Environmental Protections

Over a year before Princeton economist and NY Times columnist Paul Krugman wrote about Governor“Shock Doctrine” Walker of Wisconsin, we warned about Christie’s use of  a so called multi-billion debt as a pretext for providing “regulatory relief”! (see Star Ledger coverage and  my January 4, 2010 post:”Christie’s Shock Doctrine for NJ’s Environment“)

Here’s what EO #2 mandates with respect to federal standards(note that the objective is “immediate relief from regulatory burdens“):

 1. For immediate relief from regulatory burdens, State agencies shall: [a. – d.] 

 e. Detail and justify every instance where a proposed rule exceeds the requirements of federal law or regulation. State agencies shall, when promulgating proposed rules, not exceed the requirements of federal law except when required by State statute or in such circumstances where exceeding the requirements of federal law or regulation is necessary in order to achieve a New Jersey specific public policy goal.

How can we have democracy and political accountability when the press and the advocates both pull punches and ignore the fat elephant in the room?