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Manning Support March – Ft. Meade (Maryland) 12/17/11

[Update – Listen to the Music(video)! Graham Nash: Almost Gone (The Ballad Of Bradley Manning )

On Friday, the [Article 32] military trial of Bradley Manning began – he is the solider accused of blowing the whistle on US military war crimes (e.g. the video tape of the US helicopter slaughter in Iraq, infamously known as “Collateral Murder” – over 12 million hits).

Manning also is accused of downloading and providing more than 200,000 other secret documents on the Iraq and Afghanistan wars and State Department diplomatic cables to Wikileaks.

Manning has been held for 19 months, at times in solitary confinement and subject to psychological abuse, that some argue itself was a war crime.

From what I have read about the case, Manning is a classic whistleblower and hero. He was loyal to the truth and his sworn oath to uphold the Constitution, not obey and protect the military chain of command.

He upheld the highest ethical standards and honored the US military code of conduct.

When he witnessed evidence of war crimes and other wrongdoing, he acted to disclose it, at great risk to himself.

He is alleged to have supplied the information to Wikileaks, whose disclosures have changed the world. Famous Vietnam War Pentagon Papers whistleblower Daniel Ellsberg has praised Manning.

His case raises significant First Amendment issues (see this for excellent discussion).

He should get medals, not jail time.

I went down to Fort Meade (Maryland) to support Manning and attend a protest as the second day of the pre-trial hearings.

It was a brisk cloudy day – and the turnout was small, about 300. Unfortunately, two of my heroes, Daniel Ellsberg and Ray McGovern, could not make it. Although many people I talked to thought the police response was excessive, it was far less numerous and hostile that the response I’ve seen in NY at Occupy Wall Street.

Here’s some scenes from the day:

Retired Navy Commander

this is not Willie Nelson

US Army Colonel Ann Wright (retired)

Another Koch Brothers – ALEC Hit?

The Senate Budget and Appropriations Committee today released S1336[1R] (Sarlo D/Bergen, Van Drew D/Cape May) (we discussed this bill briefly last week – you can listen to testimony here).

The bill is part of a longstanding attack on government regulation and was supported by the NJ Chamber of Commerce and Business and Industry Association.

[Note: There is a distinct possibility, give co-sponsor Senator Oroho, that the bill was drafted by right wing group ALEC , the American Legislative Exchange Council. Compare the NJ bill to the ALEC model “Economic Impact Statement Act]

The bill is sweeping in scope and would effect all environmental laws, because those laws are all enforced and implemented via regulations.

By mandating broad new economic factors that State agencies must consider in drafting regulations (which are impossible to meet), and providing a new petition process and extraordinarily broad judicial review powers – including an ability to block the entire rule statewide on the grounds of its economic impact on one small business –  the bill amounts to a back door amendment that would weaken all environmental laws.

The Courts are provided broad new economic grounds to strike down regulations.

The new petition and judicial review process are a formula for gridlock in the regulatory process.

For example, adverse economic impacts that trigger the opposition of just one small dry cleaner could block DEP’s (federally mandated) statewide air quality regulations, and put millions of people’s health at risk.

The legislative findings read like they were drafted by the Cato institute and amount to a litany of unsubstantiated attacks on regulations. The findings lack credible supporting evidence and perpetuate myth and “horror story” anecdote:

Uniform regulatory and reporting requirements can impose unnecessary and disproportionately burdensome demands, including legal, accounting, and consulting costs, upon small businesses with limited resources.  The failure to recognize differences in the scale and resources of regulated businesses can adversely affect competition in the marketplace, discourage innovation, and restrict improvements in productivity.  Unnecessary regulations create entry barriers in many industries and discourage potential entrepreneurs from introducing beneficial products and processes.

The bill calls for a softening of the “regulatory and enforcement culture” of State agencies and relaxed regulations:

The consolidation or simplification of compliance or reporting requirements for small businesses so long as the public health, safety, or general welfare is not endangered;

The only safeguard, the endangerment criteria, is so broad as to be meaningless.

The bill would greatly expand factors state agencies must consider in adopting regulations, particularly in terms of potential economic impacts on small business. DEP has only 1 economist on staff and it would be impossible to comply with the economic impact requirements.

If DEP were to fail to consider a material fact, or underestimate compliance costs on just one small business, an entire rule could be blocked under the new judicial review provisions.

For the first time, the bill would provide an opportunity for a petition and then judicial review of the economic factors and petitions.

5.    (New section) a. A small business that is adversely affected economically or aggrieved by final ¹[rule-making] rule-making¹ action may object to all or a part of a rule subject to regulatory flexibility analysis by filing a petition with the agency within 90 days after the date of final rule-making action.  For the purpose of this subsection, “date of final rule-making action” includes the date of adoption of a rule or of an amendment to a rule, or of readoption of a rule due to expiration, or of the end of a five year period following the effective date of a rule, whichever is applicable.

A petition filed pursuant to this subsection shall be based on the following grounds:

(1)   the agency failed to prepare a regulatory flexibility analysis; or

(2)   the regulatory flexibility analysis issued failed to contain or consider a matter or factor required by law or contained a clear error or omission of a material fact which directly resulted in the agency’s failure to consider, or the agency’s underestimation of, an adverse economic impact.

The petition shall include a detailed and comprehensive explanation of the grounds.

If the petition were denied, the small business could seek judicial review. The Court could strike down the entire rule and remand it to the agency or block enforcement of the rule:

b.    If an agency determines that the petition filed under subsection a. of this section has no merit or an agency fails to take action it deemed necessary on a petition that the agency determined had merit, the small business that is adversely affected economically or aggrieved by final rule-making action may seek judicial review by the Appellate Division of the Superior Court of agency compliance with the requirements of P.L.1986, c.169. …

In granting any relief in an action instituted pursuant to this section, the court shall order the agency to take corrective action consistent with P.L.1986, c.169, including, but not limited to, remanding the rule to the agency, and deferring the enforcement of the rule only against small businesses unless the court finds that continued enforcement of the rule is in the public interest.

I testified to oppose the bill as unnecessary, poor policy, and in violation of delegated federal environmental laws. I suggested that the bill sailed through the Assembly with literally no scrutiny.

I agreed that current regulatory impacts analysis are technically flawed, done after the fact, and have no impact on the design of the rule.

But, despite these flaws, other recent changes in administrative law address these problems.

Specifically, at the front end of the rule making process, Governor Christie’s Executive Order #2 mandates early, pre-proposal involvement os business groups.

At the back end of the process, the legislature recently amended th law to allow for “substantive changes on adoption” (PL 2011, c.33), based on comments raised by business during the public review phase.

To illustrate the risks of lax regulation of small business and the harms they create, I cited the recent SCI Report on mob influence in the garbage industry, and lax oversight of the recycling industry.

I then identified multiple environmental disasters that have been caused by small business, including illegal ocean dumping, contaminated soil disposal, illegal medical waste disposal, creation of Superfund sites, et al.

Last, I advised legislators that the OLS fiscal note, which found minimal impact,  was flawed and not technically credible.

DEP regulates thousands of small businesses. Preparing credible and thorough economic impacts assessments per the specific factors in the bill would be a lot of work (DEP has just 1 economist on staff). If just 1% went the petition and/or judicial review route under the bill, the workload would be significant.

I urged the Committee to reconsider the bill.

If they were unwilling to table the measure, then they should

• delete the judicial review powers
• exempt all environmental laws, or
• exempt federally delegated programs

The bill was released with minor technical amendments by vote of 10-0-1 (abstain).

Senator Greenstein (D/Mercer) abstained. She said she had not considered but agreed with some of the concerns I raised, and might seek floor amendments.

Chairman Sarlo went out of his way to urge his fellow Committee members to support an over-ride in the event the Governor CV’d the bill.

We’ll keep you posted and urge all to reach out to EPA on potential federal problems and contact legislators to derail this runaway  lame duck train.

Amber  (5/96 - 12/10 - may she rest in peace)

[Update– for a beautiful story of another man and his dog, see: In Memoriam: My Dog, Chloe – a story I share some strong afinities with.]

A Machine for Loving

Two weeks after my arrival Fox died just after sunset
I was stretched out on the bed when he approached
And tried painfully to jump up he wagged his tail nervously
Since the beginning he hadn’t touched his bowl once
He had lost a lot of weight

I helped him to settle on my lap
For a few seconds he looked at me
With a curious mixture of exhaustion and apology
Then, calmed, he closed his eyes
Two minutes later he gave out his last breath

I buried him beside the residence
At the western extremity of the land
Surrounded by the protective fence
Next to his predecessors

During the night a rapid transport
From the Central City dropped off an identical dog
They knew the codes and how to work the barrier
I didn’t have to get up to greet them

A small white and ginger mongrel
Came toward me wagging its tail
I gestured to him
He jumped on the bed and stretched out beside me

Love is simple to define
But it seldom happens in the series of beings
Through these dogs we pay homage to love
And to its possibility

What is a dog but a machine for loving
You introduce him to a human being giving him the mission to love
And however ugly, perverse, deformed or stupid this human being might be
The dog loves him, the dog loves him

A full moon rising over Osgood Pond near Paul Smiths, N.Y - Adirondack spruce forests and bogs will be destroyed as NY climate and growing season become like Georgia due to global warming. Credit Ruth Fremson, NY Times

“People have to realize there is nothing going on with our state forests right now,” said Sen. Bob Smith (D-Middlesex), the bill’s sponsor. “That’s why we need an innovative program in the middle of this economic morass to generate revenue to help protect them.” 

“Cutting a 100-year-old oak is about as popular as shooting puppies,” Allen said. ~~~ Star Ledger 12/12/11

[Important Update below]

As we previously noted, the Star Ledger yesterday reported that the legislature is poised to approve a bill that would allow commercial logging on state owned lands: public parks, forests and green acres (see S1954[2R]).

The bill was heard last summer in the Senate Environment Committee and presumed dead since then. But seemingly out of nowhere, the controversial measure re-emerged and moved quickly in the lame duck session.

While the sponsors mouth rhetoric to justify the bill (e.g. to promote forest health, sustainable forests, and reduce wild fire risks, etc), the real objectives of the bill are hidden in plain sight.

The primary objectives are economic (from the bill):

e. The Legislature further finds and declares that it is in the public interest to explore ways to create an economic market for forest products; that such products may serve as renewable biomass, which may be used to produce energy; and that such renewable sources of energy could reduce the use of coal and other fossil fuels, thereby reducing carbon emissions.

f. The Legislature further finds and declares … that thinning the forests in State-owned ²[land] lands² would provide much needed revenue to manage ²[the State’s parks and forests] State-owned forested lands² ; that the establishment of a viable market for such products would create”green” jobs for the citizens of New Jersey and produce new revenue streams for the State; and that such a market may provide the support necessary to encourage responsible and sustainable forest stewardship throughout the State.

Further, but subtle, evidence of an economic purpose was the deletion of the key phrase “forest ecosystems” from the “sustainable management practices” findings of Section 1.d of the bill. This moves the focus and objectives away from ecosystem functions and towards logging.

These economic objectives are not ameliorated by the attempt to limit the damage by amending the bill to eliminate funding for “operation and management of state parks and forests” and limiting it to recovery of the costs of the logging program:

e. All revenues for the program shall be deposited into a dedicated, nonlapsing special account within the Department of Environmental Protection.  Moneys in the account shall be used by the department ²[only for the operation and management of the State’s parks and forests] to cover the reasonable costs of implementing the program.  Any remaining revenues shall be deposited into a dedicated nonlapsing special account in the New Jersey Natural Lands Trust, to be used only for restoration projects to increase biodiversity, or to enhance habitat for rare, threatened or endangered flora or fauna, on lands held or managed by the New Jersey Natural Lands Trust, in State parks and forests, or in State wildlife management areas.  Interest earnings and any return on investment of moneys deposited in the account shall be credited to the account.  Moneys in the account may be disbursed by the trust for projects upon written request by the forest stewardship advisory committee established pursuant to section 8 of P.L.2009, c.256 (C.13:1L-36)².

The fact of the matter is that as soon as you allow a bureaucracy to generate fees to fund itself, everything else goes out the window as the bureaucracy does whatever it has to do to crank out revenues to fund itself.

Over the last 20 yeas, DEP has become increasingly reliant on fees to fund environmental programs.

While this has been justified as implementing the “polluter pays” principle, as a result, two very bad things have happened at DEP as a result of what amounts to a perverse incentive system:

1) environmentally destructive fee funded activities – like permits – are increased dramatically and rubber stamped in order to generate revenues. DEP’s own data show that DEP approves 95-99% of permit applications. Because permits are their lifeblood, permits must be issued.

2) Essential public non fee generating functions – like science and research, monitoring, data collection and management, environmental standards development, natural resource management, regulations, policy development, planning, community involvement, technology, staff training, etc – are underfunded, ignored, downsized, and/or eliminated.

The commercial logging bill would play right into this dynamic and result in all kinds of poorly designed and poorly monitored “sustainable forestry” practices.

The bill would provide a green light to destroy our forests and we must not let that happen.

The New York Forestry Experience

In addition to this perverse incentive system that results from fee based government, the bill fails to address the real and more important risks to healthy forest ecosystems.

As outlined in this recent “Response to Climate Change in New York State” Report, those risks are caused by:

• global warming impacts
• pollution – acid rain deposition, nitrogen loading, and ozone
• land use changes – development and fragmentation
• invasive species (exacerbated by global warming changes)
• deer

If NJ legislators and DEP are serious about protecting NJ’s forests, they might want to look at NY State’s forest management programs – including their “Forest Resource Assessment Strategy” report and Forest Health Aerial Survey Program.

The Pennsylvania Forestry Experience

For an example of why we should be thankful that, as Senator Smith says, “nothing is going on in NJ’s forests” and to learn what NOT TO DO in FORESTS, legislators need look to our western neighbor, Pennsylvania, where headlines like this are generated:

Can Pennsylvania’s State Forests Survive Additional Marcellus Shale Drilling?

Pennyslvania is allowing this devastation to occur for economic reasons, particularly the explosion in revenues from oil and gas leases.

Yet, a recent Pennsylvania DNR Report  “Impacts of leasing additional state forest for natural gas development paints an absolutely devastating picture of the complete destruction of ecologically sensitive forest lands.

That superb Report uses GIS mapping technology to illustrate the devastation caused by fracking – and this does NOT include all the pipelines, air pollution and global warming impacts that fracking will cause.

I strongly urge my readers, all legislators, and citizens to read this Report for a cruel lesson of what happens when market based economic objectives drive land and forest management policy.

This hike is one of the best – see NY/NJ Trail Conference for info:

I set out from the trailhead just west of (above) Greenwood Lake marina.

Appalachian Trail - at NY/NJ Border

Perfect day – some ice on rocks in the morning, but it warmed up pretty quickly.

Superb views of Greenwood Lake, and north towards Bear Mountain. Too bad that high ozone haze impeded views somewhat.

Managed to re-sprain my ankle along the AT just about a mile north of the state line (I sprained it a little over a month ago playing soccer with kids next door).

So it was tricky coming down, as I had to “club foot” as I rock hopped along downhill portions of the trail that were flowing streams and/or leaf covered rocks.

After I got back in the car, needed some refreshments, but the Rainbow Inn was closed for the season, so, had to drive home hungry and with a stiff ankle! Check out the show:

Greenwood Lake