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Rare Summer Recess Legislative Session Generates Heat

Land Use Policy Working At Cross Purposes 

Amidst the third heat wave this year, the Senate Environment Committee met today in a rare summer recess session (move along, no need to mention climate change, an allusion is sufficient).

The Committee’s agenda included:

• a bill  to define standards for and mandate bio-diesel content for home heating oil.
• a legally required public hearing on a proposed Concurrent Resolution to authorize a ballot question to amend the Constitution to dedicate $200 million to open space preservation (Green Acres/Garden State Preservation Trust).

I hardly know where to begin in sharing the day’s contradictions with you, so I’ll just lay out a short list off the top of my head, starting with the morning news clips:

1. Audit of DEP reveals that Mr. Management Metrics – DEP Commissioner Bob Martin – can’t collect and keep track of permit and enforcement fines

NJ Spotlight reports that the most recent Office of Legislative Services (OLS) audit of DEP found:

Not collecting fines for violations of land-use regulations. Issuing permits without checking whether the applicants have paid their fees. Taking no further action when polluters fail to pay penalties assessed by the agency.

Those were among the recurring problems that the State Auditor in the Office of Legislative Services uncovered in the state Department of Environmental Protection’s Land Use Management and other programs.

Wow.

So much for Commissioner Martin’s private sector financial and management “expertise”.

What’s the status of prior OLS audits that found fault with DEP’s collection of revenues by the Office of Leases and Concessions?

What is the status of collection of the millions of dollars expected under the 120 Natural Resource Damage (NRD) lawsuits filed by DEP Commissioner Lisa Jackson?

Lots of money to be shaken from those trees.

2. Bio-Diesel bill would expand investments and commitment to a fossil fuel

The bill (S 2268) would establish a market for bio-diesel by mandating minimum content requirements (from 3-5%) in home heating oil. Industry representatives said this would increase investment in bio-diesel processing capacity in the northeast, and perhaps NJ.

Hearing a fossil fuel bill in the midst of another heat wave does raise a certain sense of whistling past the graveyard, no?

Instead of searching for incremental ways to reduce the greenhouse gas emissions of fossil fuels, a sane policy would be looking to reduce reliance on and ultimately phase out the use of oil as a home heating fuel.

But, even in the midst of another extreme heat wave – consistent with predictions of global warming models – a transition away from or phase out of fossil fuels was not remotely on the policy horizon and there was no sense of urgency. Just a narrow focus on perpetuating the existing carbon based home heating oil market.

Aside from ignoring the big picture on climate and the need to phase out fossil fuels, there are:

a) conflicting studies on environmental, land use, agricultural impacts and life cycle assessment studies regarding whether bio-diesel from soybeans creates net energy or reduces greenhouse gas emissions;

b) bio-diesel can not meet projected increases in demand for diesel, which undermines the energy independence myth; and

c) concerns about impacts on food prices, as soybean crops for fuel displace and compete with crops for food markets.

Chairman Smith concluded that there were net energy, environment, and GHG emission benefits and took strong exception to claims that the bill would drive up food prices, rejecting testimony that the bill would increase food prices for poor children.

The Committee voted to release the bill.

3.  Open Space Funding – Sales Tax Option

Chairman Smith began the hearing by noting that the Green Acres fund is out of money.

But no one mentioned the fact that the Gov. – during the 2009 campaign – promised to create a sustainable source of funding and that he failed to honor this commitment for almost 4 years, while letting the fund go broke.

This failure of leadership is what has brought us to these last minute emergency legislative maneuvers to meet deadlines to get the question of the fall ballot (which is highly unlikely).

No one mentioned that Gov. Christie set the terms of debate at the outset by rejecting any new taxes or debt, leaving the only option the unacceptable raid on existing revenues.

Smith then noted that the public hearing was a legal formality, requiring no Committee quorum or vote.

So, from my perspective, the hearing was not a time to persuade the Committee but to put arguments on the table and – frankly – shame the KIG coalition.

Chairman Smith began by summarizing what went wrong with the prior approach to dedicate a specific fraction of the sales tax.

Smith explained that with the sales tax projected to increase at 4% annually, revenues also would grow over the 30 year period (compound interest, for the math challenged). Based on this growth rate, the the OLS generated a $17 billion fiscal impact that “shocked the fiscal conscience” on the Assembly (OLS did not do a NPV analysis, but lets not get technical here.)

To remedy that problem, the new Resolution caps the revenue amount at $200 million per year.

Concurrent Resolutions are now before the Senate and Assembly, who both must meet and approve them before August 1 in oder to meet deadlines to be on the November

That is unlikely to happen, but supporters all agreed to redouble their efforts to generate public pressure on legislatures to meet.

Here are the highlights of the testimony:

a) former NJ Senator Gordon MacInnes, now head of NJ Policy Perspective, opposed the dedication of the sales tax. He urged that the historical debt funding approach was preferable, and had been approved by the voters 13 times over 40 years. His concerns focused on State fiscal issues. He talked about impacts on the budget, given structural budget deficits, austerity policy, cuts to existing programs, and inability to raise new revenues to meet important unmet needs.

I strongly urge people to listen to his testimony (here).

b) I’ve ranted here previously in opposition to the sales tax option.

I ranted again in testimony today, on the following grounds:

• Policy is working at cross purposes

Gov. Christie is promoting growth and infrastructure enveywhere. Open space acquisitions are like putting expensive band aids on huge self inflicted wounds. THis is crazy from a and use planning perspective and a financial perspective (i.e. land targeted for growth is dramatically more expensive).

Land acquisition is just one part of land use management.  It is supposed to complement State and regional Planning and land use Regulation. But planning and regulatory tools are  are being dismantled – and even worse – now being used to promote economic development, not preserve environmentally sensitive land.

Examples:

1) The Gov. is promoting shore rebuild in hazardous locations. Yet the opens space funding is justified on the need for Blue Acres buyouts of flood prone properties. It makes no sense to promote rebuild unconditionally which increases risks, while buying out property to reduce risks.

2) The Gov. dismantled the State Plan (as a land use plan) and is using it instead to promote economic development, not manage growth and preserve land. That policy includes infrastructure and development everywhere  – and it works at cross purposes with a strategic and planning based open space policy , while it also perpetuates the current flawed ad hoc “shotgun” approach to buying land. This is tremendously expensive and not a cost effective way to conduct business.

3) The Gov. has stacked and used the regional planning bodies – the Highlands and Pinelands – also to dismantle regional planning and growth management and promote growth instead of preserve land. Again, this absence of planning policy undercuts and conflicts with the open space policy. Why should taxpayers be paying top dollar for lands that could or are regulated and should not be developed?

4) DEP is using its regulatory land use and enforcement tools to promote development of environmentally sensate lands, not protection of them. Examples abound: DEP added 40,000 acres of environmentally sensitive lands to sewer service areas. Land outside a sewer service are has much lower development potential than land in a sewer service area.

This sets up not only land use conflicts between sewering and open space acquisition, , but the inclusion of land in a sewer service area dramatically increases the development potential and thus the appraised value of land (e.g.  from 10,000/acre to $50,000/acre).

Why should taxpayers pay top dollar for environmentally sensitive land DEP foolishly mapped in a sewer service area to promote development?

• Fairness: Sales tax is regressive – benefits of open space are regressive

In addition to the state budget concerns Senator McGuiness raised (e.g.  dedication of $200 million would force cuts to other important social programs, including DEP’s budget), there are distributional and equity concerns of who pays for open apse and who benefits from open space.

The sales tax is regressive, e.g. those with low and middle income pay a disproportionate share of their income, compared to the wealthy.

At the same time, the benefits of open space are regressive in several ways: e.g. 1) higher socio-economic rural/suburban allocations consume about 80%, while higher population and  poorer urban areas get about 20% for much more pressing urban open space and parks needs; 2) the owners of land purchased tend to be corporations or wealthy people; 3) the external benefits of open space accrue to land owners who live near the acquired open space.

At a time of growing wealth and income disparities, this is just wrong.

• Stewardship is a vague objective that invites abuse

For the first time, open space money would be used for “stewardship” –

The word is not defined, and there is a huge debate right now about “stewardship” of state forests, with some defining that to include commercial logging.

NJ Audubon testified in support and recommended allocation of 20% of the Fund to stewardship.

This is way over the top – and I called it out.

It’s selfish enough to be stealing sales tax revenues from the general fund when there is a climate of austerity and a structural budget deficit.

But, calling for 20% of the stolen money to go to support your own organization’s “stewardship” programs is just beyond the pale.

So, that about the end of my head exploding day of contradictions.

Oh, but wait, before I go I must share the Hopewell Chutzpah.

Hopewell is one of the wealthiest towns in the State.

They seem oblivious to that, and to the equity principle that the most privileged and wealthy in society owe a larger obligation to those less fortunate (the makers versus the takers, and all that jive).

I know. I built a home there and sent my kids through their outstanding K-12 school district.

The sent a contingent, including the Mayor, the Deputy Mayor, and the Stony Brook Millstone Watershed Association.

Seemingly oblivious to equity arguments and the perception that open space advocates are a bunch of selfish wealthy elitists, the Mayor said she understood the negative impacts on the state budget and other programs, but hey, she needed to look out for her property taxpayers – who benefit from Statre open space money.

The Deputy Mayor – get this – spoke in support of open space from his experience as a black man who grew up in Camden. As if Hopewell and Camden were even in the same universe these radical days of gross disparities in income, wealth, and political power.

Other than that, just another day in paradise.

No conspiracy theories here folks, but thought I’d point out some very close similarities between the ideas, findings, provisions, and debate on the NJ “Forest Harvest” bill and the model bill on forestry written by the American Legislative Exchange Council (ALEC).

In a touch of Orwell, the original Senate “Forest Harvest” bill has since been significantly revised, substituted, and renamed as the “Forest Health” bill, see S1085 SCS.

(for those unfamiliar with ALEC, hit this “ALEC Exposed” and/or watch this superb Bill Moyers documentary “United States of ALEC”).

I was initially curious, because the bill is co-sponsored by Senator Oroho.

Oroho is a conservative Republican who serves as ALEC’s NJ Co-Chair. He is ALEC’s point man and the bill’s co-sponsor.

As you can see from the bills he sponsored, Oroho is not what you’d call an environmental champion with a deep interest in “forest health”.

But he does represent rural Sussex County, home of thousand of acres of prime hardwood forests on State lands, so I’m sure Oroho views those forests as economic assets, not environmental treasures.

In addition to similar ideas and language, and the role of Oroho, there are other ALEC ties to the forestry legislation.

The NJ forestry bill is supported by corporate interests and right wing groups that have no legitimate interests in “forest health”. These groups include, gun rights advocates and right wing groups who engage in smear tactics, accusing NJ groups of being  “eco-terrorists” (See smears by NJ Outdoor Alliance).

Well, here is the ALEC model forestry bill –

Hit that link and note below the eeirely similar ideas and language regarding the provisions of the bill and the terms of the debate on that bill.

These include use of cover as promoting “forest health”, support of  a vague concept of “stewardship”;  specification of the reasons forests allegedly are “at risk”; the claim that there has been an “elimination of timber programs”; use of “timbering as a management tool”; and support for “prescribed burns” – read the NJ Farm Bureau testimony on the bill to confirm all that!

Groundhog Day For “Forest Stewardship”

“Stewardship” and “Sustainability’ Remain Vague Aspirations

Forestry Program Collateral Damage From Gov. Christie’s RGGI Veto

According to a 2009 law (P.L. 2009, c.256) signed by Governor Corzine just days before current Gov. Christie’s Inauguration, DEP was required to adopt a “forest stewardship program” and a “forest certification program”,  including “sustainability criteria”, “indicators”, and regulations.

Section 8 of that law directed DEP as follows:

Four years later, DEP has yet to distribute draft rules for public comment or formally propose and adopt them as regulations, as required by this 2009 law.

Virtually a well kept secret, the 2009 “forest stewardship” program was to be funded by the “Global Warming Solutions Fund,”, which received revenue from the emission allowances sold under the Regional Greenhouse Gas Initiative (RGGI).

Four years later, there is no money in that fund, because Gov. Christie unilaterally withdrew NJ from the 10 northeastern states’ RGGI pact – and stole the money to  pay for tax cuts for the wealthy and corporate subsidies.

Why do the conservation groups that support “forest stewardship” remain silent in criticizing the Gov. for RGGI withdrawal, a move that collaterally killed the “forest stewardship” program they so strongly support?

Why do conservation groups that support forest stewardship not criticize DEP for failure to implement the 2009 law?

We do know that those groups don’t consider climate change worthy of mention.

But in contrast to the silence on criticism of Gov. Christie’s climate rollbacks, we do know that those groups do criticize legislators who do not support funding programs that they themselves derive financial support from, like “forest stewardship” and open space acquisition (e.g. see the absurd whining attack on Senator Beck, who opposed sales tax Open Space bill in a losing landslide vote, like 36-2).

But, absurdly, despite DEP’s failure to implement this 2009 law, Section 3.c.(1) of the bill now on the Gov. desk links the new “forest stewardship” program to DEP regulations that were required to be adopted under the old 2009 law, but never were.

How are we to judge this legislative provision? How can know whether its a good bill when those 2009 rules were never proposed so we have no idea what DEP standards and criteria are to define “stewardship” and “sustainability”?

It’s all a sham.

The sponsors know that those 2009 DEP rules will never be proposed. There are no regulatory safeguards – that provision is a charade.

We are not fooled by that empty and fake attempt to create the appearance of regulatory safeguards.

So, the real question is: why is it groundhog day on “forest stewardship”?

But this situation is worse than just the typical extensive delay by DEP in developing a new program.

And it’s even worse that the fact that the Christie Administration’s hostility to regulations has virtually blocked any new DEP regulations.

The “forest stewardship” bill now on the Gov.’s desk was drafted by Democrats who knew about DEP’s failure to implement the 2009 law and failure to propose regulations and standards to define essential terms and appropriate regulatory safeguards.

Instead of confronting that DEP failure head on, the Democrats thought they could make an end run around DEP.

They chose to design a forestry program that would operate without DEP rules.

Instead of traditional DEP rules to provide safeguards, the program would be governed by private “standards” and oversight by the private Forest Stewardship Council (FSC).

The DEP initially reluctantly agreed to go along with all that – including FSC certification – in negotiating a political compromise last year with the sponsors and supportive conservation groups that DEP handpicked as “stakeholders”.

That political compromise was memorialized in a Senate Substitute bill – S 1085 SCS – that has passed both houses and now sits on Gov. Christie’s desk.

But, DEP rescinded prior support for FSC certification in a June 10, 2013 letter testimony.

We never supported the compromise or FSC as a replacement for public oversight via regulations.

So, we urge the  Gov. to outright veto the bill.

Given DEP’s opposition to FSC certification, at a minimum it is likely that the Gov. will conditionally veto the FSC certification and audit provision, which are the core safeguards and foundation of the political compromise.

Either way, the bill is effectively dead (as it is virtually guaranteed that the legislature would not over-ride an Absolute Veto and the Democrats would negotiated the FSC certification could never ratify a CV).

 Groups May be “Torn” – But Some Group’s Credibility Is Shredded

Public Lands Management Must Be a Public Process

[Update: 2/18/16 –  This is not expressing support for the FSC model or FSC standards. I am merely criticizing Eliot and the HiCo. They supported the Forest Stewardship bill only with the condition that FSC certification would provide a necessary safeguard. That was their position, not mine. I simply am saying that because the DEP opposed the FSC certification, that it would never be in a bill that would be signed into law by the Gov. Therefore, the HiCo safeguard is gone and they should no longer support the bill. ~~~ end update]

NJTV news did a piece on the “Forest Stewardship” bill the other night – Environmental Groups Torn Over Forest Stewardship Bill  (link includes the transcript and video.)

Let me be blunt right up front and make two points.

Point #1 – given the current facts, this is a flat out lie:

“We felt this was a bill that was going to allow logging on state-owned lands, which we of course opposed, but with the stipulation that all forest stewardship plans would require independent certification from the Forest Stewardship Council, the bill became more about stewarding our forests than about logging,”

It is simply a lie to say that the FSC will be certifying forestry in NJ.

DEP made this perfectly clear in a June 10, 2013 letter to the Legislature – let me quote the pertinent text:

The DEP’s remaining concern would be a mandatory Forest Stewardship Council (FSC) certification required for any stewardship plans we develop … While we respect FSC and recommended incorporating the FSC standards into the legislation, this mandatory certification is an un-necessary and costly requirement.  The DEP is the steward of New Jersey’s environment; we do not need our work validated by somebody else. Moreover, this unnecessary requirement adds a significant financial cost to the program, which will approach approximately $100,000 in the first year.

Repeat: FSC will not be certifying forestry in NJ – DEP is in charge and Elliott Ruga knows this, which makes his statements a bold faced lie.  Prior to June 10, he could have said this, but not after. He is now intentionally lying and misleading the public.

But it is not just that DEP has rejected FSC oversight.

Without FSC oversight and certification – or requirements in the bill to adopt FSC standards as State DEP regulations – FSC “standards” themselves do not exist. They are merely guidelines.

A “standard” is something that is legally binding, in contrast to a guideline or “best management practice”, which are voluntary.

The bill does include FSC standards but does NOT require FSC standards be implemented in forest management plans or enforced.

Rather, the bill leaves DEP in complete charge of determining if and when FSC standards apply or if and when to implement or enforce any FSC standard.

The DEP Forester decides whether the DEP forestry program “conforms” to FSC (see Section 3.b.)

There are no DEP regulations or public review process to hold the DEP Forester accountable to this FSC “conformance” determination.

The original version of the bill included explicit public review requirements – including public hearings.

Those mandatory public review requirements were eliminated and are not in the current Senate Substitute version.

Rather, public participation is up to DEP, based on how DEP implements the FSC public review standards. That is very likely to produce the hand picked faux “stakeholder” process.

DEP has convened dozens of these “stakeholder” groups, and they did so in negotiating this bill.

DEP hand picks friends and supporters – critics and the general public are completely shut out of that DEP stakeholder process. It is NOT a traditional public hearing process.

Section 3.b.(5), regarding FSC certification,

(5) seek and obtain the forest management certification from the Forest Stewardship Council for each forest stewardship plan developed;

will certainly be vetoed out by the Governor, in light of DEP’s June 10 letter testimony opposing it.

Section 4 provides that the State Forester design and implement the program, and not subject to transparent, participatory, and science based regulations.

The program will operate in the State Forester’s sole discretion because of the lack of controlling regulations and because FSC will not be reviewing, certifying and auditing the DEP forestry program.

Lets repeat : DEP rejected FSC certification – and in writing to the Legislature.

I worked in DEP Office of Legislation for 4 years, and can assure you that when a DEP Commissioner states a position in writing on a bill, he is always backed up  by the Governor. Always.

Summarizing: no FSC certification; no public oversight; no regulations to constrain DEP – this equals total DEP discretion exercised behind closed doors.

All this is the exact opposite of what Elliott Ruga is telling the public.

Point #2 – this is highly misleading:

What’s wrong with the bill, says Pringle, is that there’s no enforcement component. But Rouga says that’s not true.

“There is enforcement. Forest stewardship plans are essentially contracts written by DEP and if you don’t follow it, you don’t get paid,” Rouga said.

Contracts can be enforced, that much is true.

But withholding payment on a contract is NOT DEP enforcement.

And there are deep legal and philosophical differences: corporations define relationships with consumers and other corporations via contracts. In contrast, governments define relationship with citizens through law.

DEP is not a corporation – at least not yet.

It is highly misleading to equate DEP contract administration with DEP enforcement.

There are not only huge legal distinctions, but there are very significant distinctions in actual implementation in a bureaucracy.

Payment withholding is a weak tool, compared with enforcement authority. It can not prevent, deter, compel corrective action, or punish wrongdoing the way enforcement can.

And there are huge bureaucratic impediments to implementing any kind of program based on leverage derived from withholding contract payments.

And I say this as someone who has supervised the administration of over $200 million in hundreds of contracts at DEP on a day to day basis over a 3 year period.

As someone who tried – and failed – to inject environmental performance requirements into contracts.

As someone who tried – and failed – to get DEP contract administration and Department of Treasury staff and the Attorney General’s Office on board with that kind of approach.

Elliott Ruga simply does not know what the fuck he is talking about.

But there are even larger problems with the concept of the bill, that are perhaps best illustrated by an analogy.

Everyone knows that the word “Kosher” refers to a food certification system:

Kosher standards are developed pursuant to Jewish law, by a private Jewish institution, in accordance with Jewish culture, tradition, and beliefs. Kosher is enforced and overseen by Jewish law.

In contrast, the US Department of Agriculture (USDA) also has a food certification system.

USDA standards are developed pursuant to US laws passed by Congress, overseen by a government agency staffed by public employees, based on science, and promulgated pursuant to open and transparent public rule making procedures. USDA standards are enforced and overseen by public employees, subject to oversight by Congress, the Courts, the public, and the media.

There are fundamental differences between Kosher and USDA standards and food certification systems.

Applying the analogy, for purposes of forest management, Kosher is analogous to the Forest Stewardship Council (FSC) and USDA to NJ DEP regulations.

The take away lesson is this:

I can not go to a public hearing and try to convince the Rabbi’s to adopt or change a Kosher standard based on scientific evidence, and neither can you.

[I can’t oppose or to try to change the fact that FSC standards allow herbicide treatments – in water supply watersheds too – and bridges, roads and logging in Category One stream buffers and on steep slopes, or logging for “renewable” biomass fuel production, either.]

It’s take it or leave it.

Same thing for FSC standards.

In contrast, I CAN go to a public hearing and try to persuade DEP to adopt of change a forestry standard.

And therein lies the rub.

But, even if you have no problem with these fundamental distinctions between private and public forest certification systems, there still remains a fundamental problem.

Lets go back to our Kosher analogy.

Suppose the USDA Commissioner correctly said “USDA is in charge of US food standards. We respect but do not subject our standards or otherwise abide by Kosher standards”.

That would make the relationship between Kosher and USDA standards abundantly clear.

No one could credibly then argue that Kosher standards would apply to all foods sold in the US.

Well, we have exactly that same abundant clarity with respect to FSC and NJ DEP.

The DEP has spoken and rejected  FSC standards.

So, why the hell is Eliott Ruga of the Highlands Coalition lying to the public that FSC standards and FSC certification will protect NJ’s forests?

I actually felt that some of my prior posts had been a little harsh in singling out Elliott Ruga of the Highlands Coalition, but I no longer feel that was, because Elliot is now knowingly misrepresenting the facts, and the facts are very simple and very clear.

So, let me repeat them – using Elliott’s own words, in his June 10 testimony:

We have a Natural Heritage Committee …comprised of some of the most preeminent wildlife biologists, naturalists, forest ecologists in the state … and they debated this bill for over a year. And what they came up with is a position paper. What it required to support this bill was really one thing: and that is that a forest stewardship plan for State owned land be certified by the independent Forest Stewardship Council. ~~~  Testimony of Eliott Ruga, Highlands Coalition, to the Assembly Ag. & Natural Resources Cmte. 6/10/13 (listen)

1. The “Forest Stewardship bill was a political compromise.

The Highlands Coalition (and other conservation groups) only agreed to support the bill because inclusion of the Forest Stewardship Council certification. 

Conservation groups testified that FSC would provide an essential safeguard and so so in 3 specific ways:

a) by FSC forest management standards

b) by FSC oversight and certification of DEP forest management plans to assure that they met FSC standards; and

c) by FSC field audits of actual forestry operations to assure that they meet FSC standards.

The FSC was perceived as an essential safeguard for 2 reasons:

a) because conservation groups did not trust DEP’s forest management program, but did trust FSC’s program.  Conservationists felt that independent FSC oversight would keep any feared DEP abuses under control; and

b) because DEP lacked forest management regulations and FSC standards were considered protective safeguards that could serve in lieu of DEP regulations.

Well, that political compromise is no longer in effect. Which takes us too my second point:

2. DEP rejected FSC certification.

Lets repeat that: DEP rejected FSC certification – and in writing to the Legislature.

I worked in DEP Office of Legislation for 4 years, and can assure you that when a DEP Commissioner states a position in writing on a bill, he is always backed up  by the Governor.

The Gov. will – at a minimum – CV the FSC certification provisions.

So, Elliott, please STFU!

Greek classic for our times 

Ignored and then killed for correctly exposing a ruse.

Laocoön and His Sons

Laocoön and His Sons

The story of Laocoön had been the subject of a play by Sophocles (the play is now lost), and was mentioned by other Greek writers. Laocoön was killed after attempting to expose the ruse of the Trojan Horse by striking it with a spear. The snakes were sent by Poseidon^[3] (although Athena or Apollo have also been suggested) and were interpreted by the Trojans as proof that the horse was a sacred object. The most famous account of these events is in Virgil‘s Aeneid (See theAeneid quotation at the entry Laocoön), but this very probably dates from after the sculpture was made.