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The Christie Mask is Off – Gov. Brags About Regulatory Dismantling 

Today the Star Ledger reports on a topic we have been writing about here for 18 months with this story: Gov. Christie says deregulation is key to N.J. economic comeback

This coverage comes in the wake of similarly right wing pronouncements by the Governor, i.e. denying that global warming is man made and implicitly endorsing teaching of Creationism in public schools. (just read a new one: defying the Supreme Court)

[Update: Christie has since said he would comply with the Court’s decision.].

My sense is that Christie’s Creationism comments finally opened the media’s eyes to how far the Governor is out of the political mainstream – or how cynically willing he is to pander to Republican wingnuts.

[Update: see this April NY Times story for the national context, which features Christie prominently: G.O.P. Push in States to Deregulate Environment – why is NJ press corps so behind the curve on this?]

Up until recently, any negative press coverage of the Governor largely focused on his demagogic and confrontational style, not ideology or policy.

Have we turned the corner? Has Christie’s overreach sown the seeds of its own destruction, as we recently wrote about in “The Dialectic of Red Tape”?

In the latest, the Star Ledger reports that Christie is bragging about his assault on regulatory protections that we have been documenting here for months:

NEW YORK – Deregulating the private sector is crucial to New Jersey’s financial recovery, Gov. Chris Christie told an economic forum here today, and boasted that in his first year in office he cut one-third of the state’s red tape.

The Republican governor cast himself as an “unashamed, unapologetic” advocate for businesses interests, which he said shouldn’t have to pay lobbyists and consultants to get their requests considered promptly.

In that regard, he praised Lt. Gov. Kim Guadagno, who has been meeting with business leaders and, as he put it, handing out her cell phone number asking people to call if they run into regulatory hurdles. …

David Brogan of the New Jersey Business and Industry Association agreed, saying environmental restrictions, for example, were too prohibitive.

“It’s not just reducing the number of pages, it’s also changing the tone and changing the way the state deals with business,” he said. “When you’re talking about where companies choose to relocate, perception is reality.”

Perhaps our newly awakened press corps will now do followup stories that focus on the substance of that radical regulatory rollback – and the slogans used to jusify them.

Better yet: the media can start to print substantive rebuttals of the Christie rollbacks and the affirmative case for why we need strict environmental regulation.

(or they can continue to swallow Dave Pringle’s spin.)

I went out to Penn State’s Nittany Cycling Classic to watch my son ride a few weeks back – camped in Black Moshannon State Park.

It snowed slightly on Friday, and rained the weekend, with wicked thunder and lightning too!  At least my tent didn’t leak.

And I ran into a TV news crew and was interviewed on a State park camping promotion – pretty funny – watch video clip here.  Some race and park shots below.

“We are putting people on that council whose job it is to overthrow, overturn and subvert the Highlands Act.” Senator Bob Smith 5/19/11

[Update: 5/25/11 – Surprise, Surprise! Star Ledger reports: New appointees in N.J. Highlands Council plan to balance property rights]

Today, the Democrat controlled Senate Judiciary Committee reviewed Governor Christie’s nomination of Roxbury Mayor James Rilee to serve on the Highlands Council.

I was not expecting much, because two weeks ago, despite harsh testimony opposing Christie nominees and strenuous objections by Senator Smith and others, the Committee approved a Christie nominee who was “180 degrees diametrically opposed” to the Highlands Act (see Tom Johnson, NJSpotlight:

•  What Are Gov. Christie’s Plans for the Highlands? The administration’s latest appointee to the Highlands Council is “diametrically opposed” to the Highland protection act

At this point, there can be no doubt that Christie is seeking to weaken the Act via appointments to the Council, because he can not repeal or amend the popular law in the Legislature.

In a YouTube right wing pandering moment, Christie notoriously falsely claimed that the Act was “based on a lie“ and has claimed that the Act took private property and extinguished development rights without fair compensation, so his agenda is no secret.(see “YouTube Wars – Christie Caught Lying on the Highlands” and this video).

The only question at this point is whether Senate Democrats will stand up to the Governor and defend the Act and the drinking water for over 5 million NJ residents, or side with the developers in gutting the Act by stealth.

Listening to the hearing two weeks ago, there was no doubt that the deal was in.

Judiciary Chairman Scutari and members of the Committee openly admitted that they were bound by a political agreement with “leadership” to approve the Governor’s slate of nominees, facts be damned. It is highly unusual for such political deals to be publicly acknowledged and so crudely and openly discussed.

Today, Senate President Sweeney sat in for the start of the hearing to reinforce that same message.

But Sweeney didn’t stay very long.

Regardless, Sweeney and Senator Sarlo both voted (arrogantly, in absentia, having not even listenened to the testimony) in favor of Mayor Rilee, despite serious reservation and opposition by 5 fellow Democratic members of the Committee.  Sweeney and Sarlo’s votes enabled Rilee’s approval (which was released by the Committee without recommendation, which keeps all options open for a Senate floor vote).

I had not planned to testify, but after listening to Mayor Rilee dissemble in response to a series of detailed questions from Senator Smith, I felt obligated to do so.

Below is my testimony – the shit really hit the fan after I questioned Rilee’s veracity and integrity, in light of the oath he swore that his tetimony would be “true, correct, and complete.” Rilee simply was not credible in his evasion of questions regarding his statements on the record opposing the Act.

While Senator Weinberg described this as “reticence”, I saw it as a violation of his oath and a lack of personal integrity becasue he failed to openly state and defend his views on the Act, which are matter of public record.

The parts of my testimony about questioning the veracity and integrity of the nominee caused strong pushback by Senators Beck and O’Toole. If you’re interested, you can listen to the whole thing here – my testimony starts at 2:04

This is all extemporaneous, so please bear with me!

I am Bill Wolfe, Director of NJ PEER – that’s an acronym for Public Employees for Environmental Responsibility.

By way of background, I was [staff to] the Highlands Taskforce and involved with drafting the Highlands Act. I am going to make a few remarks just on the testimony I heard from the nominee.

Obviously, the charge of this Committee is to advise and consent. You are a co-equal branch of government with the Executive, and this is the Executive’s nominee.

So, the Executive’s intent is paramount here, in proposing a slate of candidates that some of the other witnesses have spoken about.

I would remind you that the Executive has very strong powers on the Highlands Council to direct action there. He has a veto over the minutes and he’s got the Department of Environmental Protection (DEP).

You need to consider your advise and consent role in the context of how the nominee will influence your legislation, because the [Highlands] Council itself has very wide discretion in making case-by-case determinations and in terms of crafting the Plan.

The Act provides enormous discretion to the Council, and therefore the judgement of the nominee is paramount and the focal point of you advise and consent role.

His judgement and his views are the criteria under which you evaluate him.

It’s not – Senator Smith made prior remarks about the need for a smoking gun – that’s not the standard you should apply. That’s clearly way too low a standard. We should not have to have someone opposed to the [Highlands] Act to be a disqualifying factor.

On the other end of the spectrum, I believe Senator Smith made a comment that the Governor won the election and [therefore] the burden [for this Committee] to reject the Governor’s candidate is high.

But that’s not the case because this Governor did not campaign on an agenda to roll back the Highlands Act or undermine the Act in any way. So there is no democratic imprimatur on that policy objective that the Governor himself has said, in public hearings.

He has publicly said that he has major problems with “takings”, and that’s what I want to talk about the nominee’s testimony.

I believe that the nominee is not in the mainstream on 4 specific points of law, science and public policy, and therefore should be rejected out of hand. And I want to be very clear here.

1. He used the word “taking“. The Courts have ruled that the Highlands Act is not a taking.

For someone now – after courts have ruled on the question – to publicly come forward and offer testimony to a legislative body that the Highlands Act constitutes a “taking” shows somebody’s views that are out of the mainstream.

That’s a property rights view. Its a radical view. And it’s not the law of the land.

Courts have spoken on the issue. So on that ground alone, it’s disqualification.

2. He talked about the need and preference for “home rule”.

Home rule is a fiction. Municipalities [powers] in this state are created by tthe Legislative body. The Legislative body has created the Highlands Act and taken away “home rule” powers.

So again, to come forward and talk about “home rule” is outside the mainstream and the balance of powers under the Highlands Act. It reflects a fundamental misunderstanding of the Act.

Therefore, that statement alone, tells me he doesn’t understand – particularly  with respect to probing questions of Senator Smith with respect to his role as a Mayor and a [local] Planning Board member.

Because those questions – Plan conformance and the details of those statements – dealt with who had the power, the political and legal power, to make very important decisions.

His testimony, upon reflection, did not show an understanding of the nature of the powers that: a) a municipality has; or b) that he will now have on the [Highlands] Council.

So that is really troubling, and again, it is out of the mainstream view on a very important issue.

3. The third point is with respect to science.

There were statements made here by the nominee about “science” that were not just cavalier and laid back, but clearly troubling.

Because the scientific basis – right now in the environmental policy realm, the key point is to attack the science, and just say it’s “pseudo-science” or “sounds like science” to discredit the science as a way around getting to the underlying [policy] issue.

If you make a statement that the delineation of the Preservation area lacks a scientific basis, the burden is on you to support that statement.

If you are a public official, you can’t just arbitrarily make a statement in public. You can’t have no basis for making a statement or to support a Resolution before a local governong body.

He clearly has understandings and opinions.

And that goes to the veracity of the nominee – and [whether] you can trust this man’s integrity.

Because he has clearly expresssed preferences and he swore an oath today. I heard the word “complete”. If staff could repeat the oath, I beleive the word “complete” was used.

So it’s not just honesty, it’s complete disclosure – complete transparency.

And I don’t believe he’s met that standard.

So, again, the basis to approve is lacking.

4. The last point – the delineation of the Preservation Area, which was done by statute. That’s over.

So, if you have problems with the delineation of the Preservation Area, you have problems with the Act.

And the earlier testimony of other panelists on the environmental side said that a disqualifying factor should be if you don’t support the Act you will be tasked with implementing and enforcing.

5. And the final point – this does not come just in a Gubernatorial political context.

There is litigation on the Highlands Act.

The core protection of the Act is what is known as the septic density standard.That’s a DEP standard.

Under the Act, all the Highlands Plan land use elements must be in conformance with the DEP regulations.

The DEP septic density standard thus becomes the lynchpin – it has an 88 acre density standard in forested areas.

That standard is under litigation by the NJ Farm Bureau. The DEP has filed a request that the Court postpone hearing of the case. The DEP Commissioner has signaled his intent to revisit that standard, which has survived an Administrative appeal and  been upheld by an Administrative Law Judge opinion and is the law of the land and duly promulgated regulation.

The Administration has publicly stated that they are going to relax that rule, and that’s an important element as well.

So if you’re going to come up here and talk about science and attack the science of the [Highlands] Plan, you ought to at least have the respect for this Committee and be prepared to defend those remarks.

Thank you. I’d be glad to answer any questions you may have.

Senator O’Toole: [@2:12:32]…but Sir, through the Chair, when you question an individual’s integrity, and come as close to saying he lied and committed perjury under oath,  that is something you really should think twice about before you do it. He said “listen to the oath… read back the oath”. The simple inference drawn from that characterization is that there is some violation, some impingement, some failure of his to testify completely. I haven’t seen that. I haven’t heard that from any of the Senators here. And I share Senator Beck’s caution that when you say that you are trampling on a person’s reputation, which just comes around once.  And to say that without backing it up, I think you have to be really, really careful.

Wolfe –  I believe that I backed it up – through the Chair –  respectfully, I  [interupted]…

O’Toole – – I disagree

Wolfe – that’s fine.

Chairman Scutari – that’s the end of that dialogue. Let me just say this. I don’t necessarily have a problem with you questioning it, it may not be true. I mean, the Governor calls people liars all the time. I don’t think that’s … I guess it’s not out of bounds when its coming from the Executive office.  Yet you can make that accusation [interupted]

Wolfe – for the record, I did not call anybody a liar.

Scutari – No one is saying you did.

Wolfe – there were legitimate questions as to whether the nominee was fully disclosing his viewpoints and he was sworn under an oath to do so. And therefore, when you asked a series of repeated, very precise questions that you dd not get answers to, then the candidate could either say: ‘I did not have a basis for that statement’ or  ‘I mispoke’, or ‘I no longer have that view’, or he could answer the question about what his views were. The fact that he did not – on a series of quesions, it wasn’t just one, it was a series of questions – and therefore the pattern that was expressed was not just the political finesse that any candidate for a political office is supposed to do, and probably was advised by the Front Office not to be particularly kind to detailed questioning, that’s the kind of guidance you get. And if I were in your shoes, I’d call him back and ask : was he coached and counseled by the Governor’s Office about how he should testify?  Those are legitimate questions. This is an Executive and Legislative brancch – you should have a tension here, not just an embrace.

Scutari – Thank you very much for your testimony.

Wolfe – thank you, Sir.

[end]

Update: 5/21/11 – discovered a small error in my testimony – I corrected it for the record:

Mr. Chairman:

I recently listened to my testimony before the Judiciary Committee on May 19, 2011 concerning the nomination of Mr. Rilee to serve on the Highlands Council and discovered a minor inadvertent error I would like to correct for the record.

I testified that I was “on the Highlands Taskforce”. That is in error. I was DEP staff to the Highlands Taskforce.

I stand by the remainder of my testimony.

Thank you.

Bill Wolfe, Director

NJ PEER

www.peer.org

Category 1 stream – downed trees provide habitat. Do you want a municipal civil engineer let loose in there “cleaning” it out with no DEP review?

[Update 2 5/19/11 – The Senate Environment Committee heard the bill today, but for discussion only. Chairman Smith opened by saying that he had been contacted by many municipalities (300?) and received many resolutions in support of the bill. But Smith also noted environmental group opposition, especially to the C1 waters. Sponsor Senator Cardinale was the first to testify. He made a series of outright false and/or misleading statements that were later very effectively rebutted. Folks should contact members of the Commitee, this is a bill we can kill. You can listen to the testimony here. ~~~ End update]

Update 5/19/11 – Bergen Record does a good story: Environmental groups oppose Bill drafted to alleviate flooding – end update]

Tomorrow morning, the Senate Environment Committee will consider S54 (Cardinale – R, Bergen), a bill that would weaken current protections for high quality waters under the guise of reducing flood risks.

According to the statement on the bill:

This bill would delete the provision under the current stream cleaning law that restricts county or municipal stream cleaning projects which include sediment removal activities to stream corridors of less than 500 feet in length. Under the bill, there would no longer be any such limit on the reach of the stream that could be part of any such project.  The bill would also modify the restriction on the average width of a stream bed that would be allowed to be part of any such project from 15 feet to 50 feet.

In addition, this bill would delete the provision under the current stream cleaning law that prohibits county or municipal stream cleaning projects which include sediment removal activities from occurring in category one waters. This bill would allow these activities to occur in category one waters.

This bill is necessary to allow municipalities and counties to properly, quickly, and economically clean and de-silt streams to help prevent serious flooding that may cause personal injury and property damage.

I just learned of it and banged out the below testimony –  I limited my remarks to the regulatory aspects of C1 waters, but there are other problems as well. In addition, the bill fails to deal with the underlying causes of flooding and reinforces misimpressions that DEP oversight is part of the problem.

Overall message: Legitimate steps to reduce flood risks and streamline DEP permitting must not come at the expense of water quality and protection of ecological function.

Here are DEP’s Stream Cleaning program guidelines the bill would repeal.

Testimony on S54 (Cardinale)

Senate Environment Committee

May 19, 2011

Bill Wolfe, Director NJ PEER

Mr. Chairman, good morning and thank you for the opportunity to comment.

I am Bill Wolfe, Director of NJ Public Employees for Environmental Responsibility (PEER), a national non-profit alliance of local, state and federal scientists, law enforcement officers, and land managers dedicated to upholding environmental laws and values.

I was involved in developing the Category One stream designation and 300 foot buffer protection programs while at DEP from 2002-2004.

Because the bill would eliminate important currrent statutory and regulatory protections for C1 waters, I’d like to take a moment to brief the Committee on the C1 program.

Category One (C1) waters are designated by DEP pursuant to the NJ Surface Water Quality Standards regulations because of their “exceptional ecological, recreational, and/or water supply significance, or exceptional fisheries resources” (NJAC 7:9B-1 et seq).

The policy objective is to preserve the ecological integrity of and protect C1 waters from any reduction in existing water quality.

The designation of C1 waters by DEP is reviewed and approved by US EPA under the federal Clean Water Act, as an element of NJ’s federally mandated Surface Water Quality Standards’ “antidegradation policy”.

The Clean Water Act and EPA regulations mandate that States designate waters and adopt “antidegradation policies” and “implementation procedures” to protect those waters. But the Act and EPA rules do not prescribe how to do so, but leave it up to the States to make those decisions.

Once designated, C1 waters receive enhanced protections under various NJ DEP regulations, including:

1) the NJPDES discharge permit regulations (NJAC 7:14A – 1 et seq);

2) the 300 foot riparian zone requirements under the Flood Hazard Protection Act rules (AKA stream encroachment – NJAC 7:13 – 1 et seq); and

3) the “Special Water Resource Protection Area” (SWRPA – 300 foot buffers) in the Stormwater Management rules (NJAC 7:8-1 et seq).

Under the stormwater management rules, in order to prevent degradation of water quality, disturbance of soils or vegetation in C1 buffers by “major development” is prohibited in most instances. Encroachment and disturbance is allowed in the buffer zone between 300 and 150 feet if a satisfactory demonstration is made that equivalent water quality protection and ecological function can be provided.

I mention the Stormwater Management rules (NJAC 7:8 – 1 et seq) because the SWRPA C1 buffers iitially were promulgated and codified in those rules. The technical and regulatory basis for the C1 buffers in those rules was as a “Best Management Practice” (BMP) designed to protect water quality.

The Stormwater Management Rules – including the SWRPA 300 foot buffer BMPs – are cross referenced in NJ DEP’s municipal stormwater permit rules (NJAC 7:14A – 25.1 et seq).. As such, the C1 buffers also are an element of NJ’s EPA delegated and approved municipal stormwater permit program under the federal Clean Water Act.

The designation methodology and of individual C1 waters is implemented by regulatory amendment of NJ Surface Water Quality Standards, which are reviewed and approved by EPA under the federal Clean Water Act and EPA “antidegradation policy” regulations.

The 300 foot buffer protections are a part of NJ’s EPA approved “antidegradation implementation procedures” required under the Clean Water Act.

Given the exceptional resource values of C1 waters, it is poor public policy to remove regulatory protections and the current statutory prohibition on stream cleaning projects and sediment removal activities from occurring in category one waters.

Legitimate steps to reduce flood risks and streamline DEP permitting must not come at the expense of water quality and protection of ecological function.

Given the US EPA oversight of C1 waters under the federal Clean Water Act’s water quality standards and municipal stormwater permit programs, the bill also raises complex issues of compliance with federal requirements.

I urge the Committee to delete the provisions of the bill related to removing the current prohibition on conducting these activites in highly sensitive and environmentally exceptional C1 waters.

Thank you. I would be glad to respond to any questions you may have.

Man Bites Dog - Christie Rejects Red Tape and Supports Environmental Regulation

Governor Christie outright vetoed 2 bills last week.

Due to extensive media coverage and strongly critical editorials – see: Asbury Park Press:  Bay bill veto disappointing and Star Ledger:  Barnegat is worth it: Christie erred by vetoing bill to help keep bay clean – most are probably aware of the veto of the Barnegat Bay stormwater bill.

As I’ve focused on the Barnegat Bay issue, I will get around to analyzing the Governor’s rationale for the veto.

But given the paucity of coverage and lack of awareness - especially in light of all the Christie criticism here - I want to note and praise the Governor for his veto of a bill that would have rolled back current X-ray safety requirements under the guise of reducing Red Tape.

I’d also like to hold the sponsors accountable – and criticize Senate Democratic sponsors Gordon and Sarlo – for supporting a bill that clearly was intended to rollback health and safety protections for economic reasons.

That is a very bad policy that unfortunately has crept into conventional wisdom. I have scathingly criticized Governor Christie and DEP Commissioner Martin for that economically driven policy here numerous times – but many Democrats share that ill advised and often corrupt view that it is OK to tradeoff public health for private corporate profits.  

The bill, S-617/A-2871 (Gordon, Sarlo/Voss, Casagrande)  would have limited DEP regulation of medical diagnostic x-ray equipment in facilities performing 750 or fewer x-rays per year and prohibited DEP enforcement of public health and safety laws.

Below is the heart of the Governor’s veto message –

While I reject the entire lack of an ethical premise, the cost-benefit policy, and the entire methodological approach of so called “balancing” of public health and compliance costs behind the Governor’s reasoning, I reluctantly must support the Governor’s action:  

This bill would lessen radiation protection requirements for x-ray diagnostic facilities that perform 750 or fewer x-rays per year.  Specifically, the bill exempts such facilities from current requirements for testing the chemicals and processors which are used to develop x-ray film.  Proponents of this bill offer this legislation as a means to alleviate burdens and reduce compliance costs for diagnostic facilities that make infrequent or limited use of such diagnostic equipment.  While my Administration is firmly committed to eliminating red tape and reducing unnecessary regulatory costs, I do not believe that this bill strikes the right balance.  In my view, any proposed savings in regulatory costs is outweighed by the additional health risk to patients and health care workers that would occur if this bill were signed into law.

I also want to credit DEP professionals for their recommendations to Commissioner Martin to oppose this bill. That took integrity, given both the Commissioner’s and Governor’s attacks on DEP science and DEP regulations as Red Tape. As the Governor noted:

Both the Department of Environmental Protection and the Department of Health and Senior Services expressed concerns about this bill as it worked its way through the legislature.  These Departments explained that the regulatory threshold of 750 diagnostic x‑rays per year was arbitrarily drawn and not rationally related to the health concerns for the individual patients and equipment operators.  The testing requirements are intended to protect the health of patients and workers by, among other things, ensuring that the x-rays taken at medical facilities are clear.  First, this protects patients by reducing the chance of misdiagnosis arising from difficult to read x-rays.  Second, it protects patients and equipment operators from excessive exposure to radiation when multiple x-rays are taken due to poor image quality.  Excessive radiation exposure increases the risk of cancer and other diseases.

The existing requirements are consistent with a study of the National Council on Radiation Protection and Measurements, which specifically concluded that x-ray facilities that perform less frequent diagnostics present special control risks in x-ray processors.  The bill would also undermine the success of the current regularly program.  Under the current regulatory program, the Department of Environmental Protection has seen a significant decline in violations over the years, from numbers in the thousands to a little over one hundred, and attributes these declines to auditing measures which identify and correct violations almost immediately.  We owe it to the public to continue these health and safety measures since each and every patient and health care worker is vulnerable to risks from radiation and quite properly expect uniform levels of protection regardless of the frequency of x-ray diagnostics performed at a medical facility. 

[Update: Dear Readers – please don’t think I’ve gone all Pringle on Christie.

I fully realize that the veto of this bill was a very light political lift, given the fact that it gored no powerful political ox, the economic impacts of the regulations Christie upheld were small, and the bill was sponsored by Democrats. 

But the Governor, in his own veto message, revealingly and ironically lays out policy arguments about why his Red Tape and cost benefit regulatory policies are so wrong headed. I could not resist writing about those contradictions.