WolfeNotes.com

Speaking out in defense of career professionals & against political deals is laudable

Brad Campbell (L), Bill Wolfe (R), Earth Day Protest debate, (2005)

Let’s be very clear here:

What Brad Campbell did in writing a NY Times Op-Ed criticizing the political intervention of Governor Christie’s Office in the Exxon litigation was laudable and brave.

We salute and support that effort, as well as the actions of career professionals at DEP and/or the AG’s office who spoke with Campbell and leaked the Exxon deal to the NY Times. We need much more of that.

All too often, public officials and career professionals, in a position to know of corruption and political intervention, just sit down, shut up and look the other way as corrupt political interventions undermine the science, law, and public interest they are sworn to uphold.

We urge other DEP and AG  professionals who have documents and personal knowledge of this and similar abuses to step forward as well – openly or anonymously. We are here to assist your efforts.

Campbell very publicly voiced the concerns of career professionals and we applaud that. Regardless of his motivations, his arguments are credible and persuasive and his allegations warrant investigation.

Campbell joins former DEP Commissioner Mark Mauriello, who we also have praised, for defending the integrity of DEP as an institution and standing up for the public interest.

We have had many policy disagreements with Campbell, including some about political intervention at DEP – with some very bitter and some intensely personal – all of which are dwarfed by and  irrelevant to this situation.

We have criticized the DEP’s NRD program and urged that it be strengthened. That too is irrelevant.

The Christie Administration’s attacks on Campbell are transparent and blatant attempts to kill the messenger and in doing so only confirm the allegations of improper political interference.

Good work Bradley!

I was planning to fix and re-write part 3 of our Pipe Dream series this morning before heading off to Trenton, but the snow has wiped out the Legislature’s hearings and my focus has been diverted by former DEP Commissioner Brad Campbell’s explosive NY Times Op-Ed, the expanding Exxon scandal, and today’s NJ Spotlight poll on the Pinelands pipeline, which I am compelled to make a few comments on.

• Political Posturing – Democrats in High Dudgeon

Senator Sweeney has pledged to kill the Christie Exxon Dirty Deal.

While of course I am pleased by that, I have to note that there is a lot of posturing going on here. Once again, the Democrats are getting a pass and are playing environmentalists and media (praise and cover coming just at a time when Sweeney was taking a lot of heat on his Pinelands abuse, Smith on Open Space funding, Prieto on Liberty State Park development, and Campbell on the Ferriero corruption trial ).

1) Senate President Sweeney, Senate Environmental Committee Chairman Smith, & Senator Lesniak all did nothing for YEARS as some of us were warning – repeatedly – that the DEP NRD program needed to be beefed up by regulations and stronger enforcement. We even petitioned the Christie Comptroller to investigate what we correctly saw as a huge multi-million taxpayer ripoff and giveaway to polluters:

PEER is asking the Comptroller to review the performance of the NRD, determine the extent to which taxpayers are not attaining full NRD recoveries and make recommendations for putting the program back on track in a more transparent and accountable fashion.

We got crickets on all that.

In contrast, the State Chamber of Commerce as not shy about their concern in opposing NRD – so the inaction by Legislators to strengthen the NRD program effectively promoted the Chamber’s agenda to minimize NRD liability. As they framed that concern in a 2008 legislative hearing on key priorities:

We have to keep in mind, at the same time, the challenges that are before us. As we go away from the pristine parcels of land and start to develop in those areas, there are challenges of developers with regard to natural resource damages, permit delays, environmental justice, and other litany of issues.

2) They all did not block the $50 million cap in last year’s budget language;

3) Regardless, legally, the $50 million cap would have been over-ridden by the November 2014 voter approval of the Constitutional Open Space ballot, but Senator Smith amended his SCR84 to delete NRD settlements as one of the dedicated revenues sources.

As we’ve written several times now, dedication of NRD settlement revenue was included in the introduced version of the SCR84, (lines 31-35 on page 3), but that was OPPOSED by NJ Keep It Green Coalition (what we have called on of the biggest blunders of all time.

How’s that opposition to NRD dedication looking now? After the loss of $140 million on the Passaic settlement and at least $200 million in Exxon deal? That $340 million is more than 4 YEARS of funding from your paltry deal you struck on Open Space (about $80 million this year). HECKOFAJOB!

• Former DEP Commissioner Campbell”s explosive NY Times Op-Ed

Brad Campbell, DEP Commissioner 2002 – 2006

Brad Campbell has a killer Op-Ed running in the NY Times today. It was so strong, it has spawned a news story as well.

Of course, in his legitimate focus on the Christie corrupt political intervention, Campbell conveniently omits the policy problems we have brought to the fore, that continue to be ignored in the bright light of the growing scandal.

Ironically, even Gov. Christie’s Transition Report on DEP included the same recommendation we have advocated on the need for NRD regulations:

With respect to the State’s efforts to seek compensation for damages to natural resources (NRD), we recommend that NRD efforts fall under the jurisdiction of the Site Remediation Program, and that rules be adopted to provide transparency, certainty and consistency in the assessment of those damages.

And blowing our own horn: We were the first to report Brad Campbell’s role in expanding the NRD program and the fact that the deal was likely leaked by career professionals in DEP or the AG’s Office, a fact Campbell confirmed today in a NY Times Op-Ed.

On Monday, 3/2/15, we wrote:

The settlement was apparently leaked to the NY Times, who ran a huge story on Friday. I assume it was leaked by some one from DEP or the AG’s Office who was outraged by the sellout.

Today, confirming that, Campbell wrote:

Former colleagues of mine in state government, where I served as commissioner of environmental protection from 2002 to 2006, have told me that Mr. Christie’s chief counsel inserted himself into the case, elbowed aside the attorney general and career employees who had developed and prosecuted the litigation, and cut the deal favorable to Exxon.

Finally, while I’ve given him strong praise for vastly expanding a moribund NRD program that was on life support under the Whitman DEP, of course Campbell is guilty of the same kind of compromises and dirty deals he criticizes. (See: A new Green Deal for the City of Linden – where I discuss some aspects of this and how NRD settlement revenues could anchor renewal).

One NRD settlement in particular, i.e. the Dupont statewide NRD settlement, where not only did Dupont get a deal worth pennies on the dollar, they also donated contaminated land to the State: (see: Dupont Deal Gave State More tainted Soil, Bergen Record 12/6/10)

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

Bradley M. Campbell, an environmental lawyer with offices in Trenton and Washington, was the state Department of Environmental Protection commissioner at the time of the agreement with DuPont. Asked why such a settlement included property that was polluted, Campbell said he didn’t think any of the settlement property was contaminated.

[* full disclosure: I was hired by Campbell in 2002 and worked for him from 2002-2004.

• Spotlight Poll on Pinelands Pipeline

I see these silly reader polls in increasing frequency in the brain dead media, so I’m not exactly enthused to see them at Spotlight.

It is so obvious that they are designed to polarize and stoke debates in a desperate attempt to attract readers and clicks.

But Spotlight does those things in their own unique way, typically with a more intelligent framing of the issues and a broader range of choices.

But stil, the poll becomes a way to propagate arguments,  spin issues, and mislead readers without taking any responsibility for the argument that is framed in the polled question.

Today’s poll does that by regurgitating some pipeline industry arguments as the first two questions, while at the same time leaving out of valid anti-pipeline arguments that could be framed as poll questions.

That is unworthy of Spotlight. Those kind of games are beneath Spotlight and if Spotlight wants to make policy arguments, then they should write them down in an editorial and not hide behind them in poll questions.

Which takes me to the two best arguments for opposing gas pipelines that were not even mentioned in the poll, which I would frame thusly:

• Pipelines and fracked natural gas provide no new manufacturing jobs and only a handful of temporary short term construction jobs. NJ already has far more gas pipeline capacity than the state consumes. The costs far exceed the benefits

• The planet is approaching irreversible tipping points for runaway climate change that would destroy civilization as we know it. We must stop all extraction of fossil fuels and investments in fossil infrastructure and make a rapid transition to renewable energy.

Poll that!

 No Benefits To NJ From Fracking & Pipelines

Policy Makers Duped By Energy & Chemical Industry

Pipe Dreams – Part 2

(Source: NJ Dept. of Labor)

Look at that gray line going down – The data above show a remarkable decline in NJ’s chemical industry production and employment. The largest single component of NJ’s manufacturing sector is the chemical industry.

In my prior post, I emphasized the key fact that NJ’s manufacturing sector was in steep decline, particularly during the last 5 years of the Christie Administration, declining by an average of 5.1% per year.

The chemical industry decline comes at the same time of Gov. Christie’s pro-business “regulatory relief” and “voluntary partnership” enforcement policy, so industry lobbyists can not trot out the standard Big Lie that environmental regulation caused the declines.

That period of steep decline also corresponds with the rise and tremendous growth of the natural gas fracking industry, which has produced a glut of gas in the region.

Because the chemical industry uses natural gas as a production input, we were assured – loudly and repeatedly – by the energy and chemical industry lobbyists that the growth of fracking and declines in the price of natural gas would spur a “renaissance” in chemical manufacturing, fueling huge new growth.

Hal Bozarth. Chemistry Council lobbyist

That spin was presented in an Aug. 25, 2011 CCNJ Press release praising Gov. Christie’s veto of legislation to ban fracking in NJ:

“Governor Christie recognizes that New Jersey benefits enormously from natural gas production,” said Hal Bozarth, executive director of CCNJ. “Adequate, affordable natural gas supplies help sustain thousands of high-paying chemistry industry jobs.  Natural gas is also important to more affordable electricity for New Jersey’s manufacturers, small businesses, and citizens.

“U.S. shale gas production is spurring a manufacturing renaissance in the country, and New Jersey can potentially benefit through economic development and job growth in the state,” Bozarth continued.

The actual data on NJ’s chemical industry’s production and employment during the boom in fracking totally contradicts those exaggerated industry claims.

So, where is the “manufacturing renaissance” Hal? LOOK AT THE ACTUAL DATA!

(Source: NJ Dept. of Labor)

NJ receives just a handful of temporary construction jobs and few economic benefits from all the fracking pipelines the energy industry wants to build.

The costs far exceed any benefits.

NJ could even wind up even exporting gas to lucrative foreign markets. A point we take up in part 3.

Two Gas Explosions in a Week Raise Safety and Government Oversight Concerns 

Defective Gas Valve Installed in 70,000 South Jersey Homes – Already 3 Emergencies, Including Fire

Gas Company and BPU Slow To Replace and Warn Public

[Update below]

[Update: 3/14/15 – add the Seaside Heights explosion to the list – end update.]

Let me begin this post by stating very clearly that I know virtually nothing about the technical aspects of gas pipeline safety and that I have no intention of scaring anybody or opportunistically using disasters to advance an agenda (for context, see Point Pleasant explosion and Stafford explosion).

I post this information so that perhaps those that do have expertise or regulatory responsibility – or media – can investigate what, from a layman’s perspective, looks troubling. I really have no idea if this is a big deal or a trifle – or if the problem has been solved and risks are minimal.

I was recently given credible information about a gas safety issue – including a fire that caused major damage and a lawsuit – related to a defective gas valve that was installed in approximately 70,000 homes and business by the South Jersey Gas Co.

Based on my review of sworn testimony to BPU, is sure seems that neither BPU nor South Jersey Gas are in any hurry to properly diagnose the risks or replace the defective gas valves.

Testimony shows that the problem was discovered not by any SJG or BPU safety program, but by the random discovery of a gas leak that led to a fire with significant property damage.

After the problem was discovered, BPU dod not require SJG to conduct a rigorous safety analysis to determine the full extent and risks of the problem.

SJG initially did not fully investigate the problem and proposed and apparently received BPU approval to replace the defective values – which already have caused fires and explosions with extensive property damage – over an extended 15 year period!

I do not have final documents to be able to understand how this problem was resolved by the final BPU Order or what the current status is.

My source suggests that:

someone in the press should take on the info from Deptford and apply it to an overall analysis of what has happened since then, etc and whether any more valves have been more recently replaced, at what pace, bpu involvement, etc…

Here is what happened, per SJG testimony – I have fill document as a PDF and am unable to post a link but will provide upon request:

Here are excerpts of the sworn BPU testimony to get the ball rolling –  very troubling flaws revealed (link)

DEP Lacks Regulations To Quantify Natural Resource Damages (NRD)

Lack of NRD Regulations Opens The Door To Abuse

Open Space Advocates OPPOSED Constitutionally Dedicating NRD Funds

There’s been quite a lot of press coverage and expressions of outrage over the Christie DEP’s sweetheart deal with Exxon Mobil regarding decades of pollution from the Bayway refinery that caused  “Natural Resource Damages” (NRD).

The settlement was apparently leaked to the NY Times, who ran a huge story on Friday. I assume it was leaked by some one from DEP or the AG’s Office who was outraged by the sellout.

The media coverage correctly has stressed major abuses – as I did in my initial post –  including:

• the $250 million recovery is less that 3 cents on the dollar of an $8.9 billion claim
• those funds are likely to be used to close budget deficit and pay for Christie’s corporate tax cuts
• the sellout is linked to Gov. Christie’s political fundraising – implied corrupt quid pro quo

I expect the mainstream press to not understand complex issues of environmental law and to play up the politics. So I am not surprised that they missed key points.

But I expect more of the environmental community and of NJ Spotlight, who are not bound by the soundbite and 24 hour news cycle and instead are – or should be – focused on policy.

So, I was disappointed by today’s Spotlight story:

• ADMINISTRATION REPORTEDLY SETTLES $8.9B EXXON LAWSUIT IN A HURRY — FOR ONLY $250M

To claim that Superior Court Judge Hogan found Exxon liable for NRD and use that finding to imply with confidence that he would render an opinion that hit Exxon with almost $9 BILLLION in damages is absurd and misleading  (especially given Hogan’s prior role as chief counsel to the pro-business and anti-regulatory Whitman DEP Commissioner).

Worse, to claim that DEP has a “complex formula” for calculating Natural Resource Damages (NRD) is simply false and obscures the critical point.

Bureaucracies shield themselves from this kind of abuse of enforcement discretion via regulations – with numeric standards and methodologies.

If DEP had regulations and standards in place for quantifying NRD damages, the dirty Exxon deal could not have been done.

DEP does not have such NRD damage determination rules in place and we’ve criticized that fact for YEARS now. (DEP has methods for groundwater injury and ecological injury, but these are not enforceable regulations)

[* further clarification: the DEP’s groundwater injury method provides a formal for calculating economic damages for lost use, but it has not been promulgated as a regulation and is not enforceable.

In contrast, the Ecological injury method relies on the Site Remediation program’s Baseline Ecological Evaluation (BEE), which HAS BEEN adopted as a regulation. However, a BEE merely documents the ecological or natural resource injury: it does NOT quantify NRD injury in economic terms.

Both conditions must be met – i.e. DEP has to have both: a promulgated rule that provides a method to quantify economic damages.]

In a 2004 settlement agreement of the case New Jersey Society of Environmental & Economic Development v. Campbell (N.J. Super. Law Div., Mercer County), DEP legally committed to propose formal natural resource damage regulations.

For 10 years, DEP has failed to honor that settlement and has not adopted NRD regulations that provide standards and methods for calculating NRD damages.

NJ Courts have rejected DEP NRD claims based on DEP’s failure to promulgate regulations, see:

N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007).

We discussed that case here:

• NEW JERSEY FORFEITS HUNDREDS OF MILLIONS IN POLLUTION DAMAGES – Court Ruling Faults DEP for Failure to Enact Rules to Compensate Public

Trenton — In a stunning legal setback, the State of New Jersey cannot recover damages from polluters in what may be thousands of contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER). The problem stems from the state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water. As a result, polluters can avoid compensating the public for treatment of tainted groundwater, replacement water supply lines, drilling new wells and associated damages — leaving taxpayers with uncalculated costs.

On August 24, 2007, a state Superior Court dismissed with prejudice an attempt by the New Jersey Department of Environmental Protection (DEP) to recover a natural resource damage claim involving benzene and toluene contamination of private wells in the Hillwood Lakes area of Ewing Township. (N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007)). The Court found that DEP did not follow the rule making process to establish, by regulation, a reliable formula for calculating natural resources damages. In the absence of regulations, the Court also found DEP lacked adequate scientific support to proceed on a case-by-case basis.

More recently, after the Appellate Division struck down a DEP NRD claim, we petitioned the NJ Comptroller to intervene and require that DEP adopt regulations EXACTLY to AVOID this kind of political abuse, see:

• NEW JERSEY FUMBLING AWAY POLLUTION DAMAGES – Court Ruling Underlines State Futility in Assessing “Natural Resources Damages”

Trenton — The State of New Jersey is forfeiting hundreds of millions of dollars in damages from polluters in contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER), which has asked for a review of the program by the state Comptroller.   The state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water has contributed to its inability sustain assessments against polluters. […]

“This mess was wholly preventable but even now the state is not taking the measures everyone agrees are needed,” Wolfe added. “It appears that we have utterly lost the capacity for enlightened environmental leadership in New Jersey.”

PEER is asking the Comptroller to review the performance of the NRD, determine the extent to which taxpayers are not attaining full NRD recoveries and make recommendations for putting the program back on track in a more transparent and accountable fashion.

The Corzine DEP under Lisa Jackson failed to adopt regulations, as did the anti-regulatory Christie administration.

Those failures to adopt rules are what allowed this most recent Christie Bayway abuse to occur – a predictable and predicted abuse.

Finally, to whine that the revenue from the settlement will go to the State budget and not to natural resource restoration and public compensation for lost use of natural resources is disgraceful.

As I’ve written, the introduced version of the Open Space Resolution SCR84  (see lines 31 – 33 on page 3) would have Constitutionally dedicated NRD settlement funds to the Open Space fund, but environmentalists OPPOSED Constitutionally dedicating this funds.

I repeat: that is one of the biggest blunders of all time, as both the Passaic and now the Exxon settlement prove.

Environmentalists need to spend more time working on what DEP actually does that in the media.