WolfeNotes.com

Another Horrible Climate Policy by the Christie Corporate Crew

Logging Plans conflict with DEP’s own Climate Change Report Recommendations

Climate issue another in a long list of reasons to abandon Christie DEP logging plans

[Update below]

It is well known that the Christie Administration is irresponsibly outright hostile to any plans or programs to address climate change, and instead has actively promoted new fossil fueled gas plants and pipelines across the state, while suing to block the Obama EPA Clean Power Plan climate initiative.

But here’s an aspect of that climate negligence that has gotten no attention: reducing the ability of NJ’s forests to store carbon.

The controversial proposed DEP logging plan for Sparta Mountain is not NJ Audubon’s or DEP’s first logging operation.

Highlands forests are under assault from the State agency directed by the Highlands Act to preserve them.

Getting virtually no attention are the facts that NJ Audubon also logs Newark watershed lands (see page 43) and DEP has proposed logging not only at Sparta Mountain but in Weldon Brook WMA and Mahlon Dickerson Reservation.

Some think that Hamburg Mountain is next in line for logging.

The cumulative effects of these logging operations – on forest health, water resources, ecosystems, wildlife habitat, recreation, or climate change – have not been considered by the DEP. Not at all. No consideration.

There is no Statewide Plan that evaluates logging of NJ Forests, particularly with respect to the implications for climate change and carbon sequestration.

With respect to the climate change and forest carbon sequestration, the USGS recently released a study that suggests DEP’s logging plans – which remove the largest, oldest, and most valuable trees from the forest – is ill advised from a climate perspective, see: Large Old Trees Grow Fastest, Storing More Carbon

Trees do not slow in their growth rate as they get older and larger — instead, their growth keeps accelerating, according to a study published today in the journal Nature.

“This finding contradicts the usual assumption that tree growth eventually declines as trees get older and bigger,” says Nate Stephenson, the study’s lead author and a forest ecologist with the U.S. Geological Survey. “It also means that big, old trees are better at absorbing carbon from the atmosphere than has been commonly assumed.”

Another study of so called “forest thinning” raised similar concerns: THINNING FORESTS FOR BIOENERGY CAN WORSEN CLIMATE

A new study out of the Geos Institute in Ashland, Oregon concludes that selectively logging or “thinning” forests for bioenergy can increase the amount of carbon dioxide in the atmosphere and exacerbate climate change.

The study, “Thinning Combined With Biomass Energy Production May Increase, Rather Than Reduce, Greenhouse Gas Emissions,” by D.A. DellaSala and M. Koopman, challenges bioenergy and timber industry assertions that logging forests will aid in the fight against climate change.

The closest thing I could find to a NJ analysis of the management of carbon sequestration capacity of NJ’s forests was this US Forest Service Annual Survey.

This survey repeats the false assumptions discredited by the USGS study with respect to the carbon sequestration capacity of “young” versus “old” forests and suggests the unmet challenge for managing forests to store carbon:

Collectively, forest ecosystems represent the largest terrestrial carbon sink on earth. The accumulation of carbon in forests through sequestration helps to mitigate emissions of carbon dioxide to the atmosphere from sources such as forest fires and burning of fossil fuels. […]

Carbon stocks in New Jersey’s forests have increased substantially over the last several decades. The majority of forest carbon in the State is found in relatively young stands dominated by moderately long-lived species. This suggests that New Jersey’s forest carbon will continue to increase as stands mature and accumulate carbon in above- and belowground components. Given the age class structure and species composition of forests in New Jersey, there are many opportunities to increase forest carbon stocks. Managing for carbon in combination with other land management objectives will require careful planning and creative silviculture beyond simply managing to maximize growth and yield. 

But the DEP’s Sparta Mountain and other “Forest Stewardship” plans completely ignore the carbon sequestration issue.

That’s not “Stewardship” or the “careful planning” USFS recommends, it’s logging.

The Christie DEP’s climate negligence is particularly egregious, given DEP’s own 2009 Report on implementing the Global Warming response Act (GWRA).

One of the specific recommendations of that Report were to “Adopt amendments to the New Jersey Forest Stewardship legislation” to address carbon sequestration as one strategy to achieve the GWRA goals for the year 2020. DEP also recommended that regulations “Require any State-funded projects to comply with the no net loss goal of forested area and tree replacement provisions of the “No Net Loss Act” (see Table ES1)

That DEP GWRA report has been abandoned and suppressed, so few know that it found that terrestrial carbon sequestration could “absorb” 5% of NJ’s CO2 emissions (almost 7 million tons):

This report lays out a recommended framework for attaining the 2050 GHG limit that focuses on taking aggressive action in key sectors where the greatest GHG emissions reductions can be gained over the long term. These areas are: land use planning and transportation; terrestrial carbon sequestration; energy efficiency and renewable energy; and new technologies and markets that support a climate-friendly economy. […]

While most of the GHG recommendations outlined in this Report focus on reducing the amount of CO2 and other GHG emissions emitted into the atmosphere, it is just as important to maintain, and increase, our natural sinks that absorb and sequester CO2. There is a growing body of research that indicates a significant potential for creating GHG mitigation through agriculture, forestry and vegetative measures. Forests play a critical role in climate change by sequestering or storing large quantities of carbon by absorbing CO2. Photosynthesis and respiration are the essential machinery by which forests store and release carbon. As a tree grows and increases in biomass, it absorbs CO2 from the air and, through the process of photosynthesis, uses solar energy to store carbon in its roots, stems, branches, and foliage. Some carbon is released back into the atmosphere as CO2 during respiration, but a living tree acts as a carbon “sink”; storing more carbon than it releases. Trees continue to accumulate carbon until they reach maturity, at which point about half of the average tree’s dry weight will be carbon. Nationwide, the U.S. Department of Agriculture projects that forest, crop, and grassland conservation efforts can play a unique role in reducing the GHG intensity of the U.S. economy. Increasing carbon sequestration in soils has become a viable way of augmenting the reduction of atmospheric GHG emissions. A 2007 study found that forest management practices would provide the lowest cost offset options in most regions of the United States.

The climate crisis demands that we systematically use every tool to reduce greenhouse gas emissions – and carbon sequestration in forests in a part of that strategy.

The climate issue is just another in a long list of reasons to abandon the Christie DEP logging initiative.

 [Update – 5/6/16 – The larger context for this post:

American Forests Face Major Changes

In the north-east of the US, the great stands of maple, beech and birch, and the combinations of spruce or fir and pine, will prove vulnerable, they say, to the drought conditions predicted for the second half of the 21st century. ~~~ end update]

DEP lacks authority to conduct “Forest Stewardship” on public lands

Failure to adopt regulations violates NJ Supreme Court’s “Metromedia” decision

Public comment period closes tomorrow

The public comment period on the Sparta Mountain WMA “Forest Stewardship Plan” closes tomorrow, so today we put DEP Commissioner Martin on notice of fatal legal and policy flaws. Yesterday, I urged legislators to intervene.

We will be submitting additional technical comments (see this for NJ Highlands Coalition comments) – you can hit this think to submit comments to DEP.

Dear Commissioner Martin:

Please accept the following comments on the Department’s s proposed Forest Stewardship Plan (FSP) for Sparta Mountain Wildlife Management Area (SMWMA).

I will be submitting detailed technical comments to your staff, but wanted to bring these 3 fatal legal flaws and serious policy issues personally to your attention.

1. Inadequate and unlawful public notice and comment

At a minimum, I request that the Department issue a public notice and extend the public comment period for at least 90 days.

The 90 day period is approximately how long the public has been provided to review the Plan since its informal public release by the Department on December 23, 2015. I note and object to the fact that the public release by the Department apparently was not conducted in accordance with formal public notice and comment procedure required by law for formal agency regulatory decision-making.

As I previously wrote to Mr. Golden and Ms. Petzinger of your staff, an extension is required so that the public can have the same opportunity to review and comment on a critical attachment to the Plan regarding the basis and methodology for de-designation of SMWMA as “High Conservation Value Forest” (HCVF) by NJ Audubon.

The Department made that critical Plan attachment publicly available via email on March 8, 2016 from Ms. Petzinger. Just 23 days is not sufficient time to obtain the supporting data and review and comment on that critical Attachment to the plan. Equally, many people may not even be aware of the opportunity to review and comment on this Attachment, given the lack of public notice.

2. Lack of Legislative authority and contradiction of Governor Christie’s Conditional Veto

I request that you withdraw the plan unless and until the NJ Legislature authorizes and the Governor signs legislation to engage in “Forest Stewardship” on public lands, including lands acquired with Green Acres funds and the Department adopts rules and regulations to implement the program.

The legislative history is troubling and illustrates this lack of authority and the Department’s failure to comply with law.

In 2009, the Legislature passed a bill signed into law by Governor Corzine that authorized “Forest Stewardship” on private lands, see: P.L. 2009, c. 256

http://www.njleg.state.nj.us/2008/Bills/PL09/256_.PDF

That 2009 law also required that DEP:

“shall establish a forest stewardship program” and “shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations“, including rules “setting forth policies, guidelines and best management practices that establish standards designed to ensure the sustainability of forest lands, which may be applicable to any publicly and privately owned forest land“. [emphases mine]

Importantly, the 2009 law mandated that the Department adopt regulations to provide protective standards, create an Advisory Committee and a public planning and review process for “Forest Stewardship”.

The Department has failed to comply with these critical and non-discretionary requirements of the 2009 law.

More recently, Governor Christie conditionally vetoed (CV) a bill passed by the Legislature that would have authorized a DEP program of “Forest Stewardship” for public lands, see:

http://www.njleg.state.nj.us/2012/Bills/S1500/1085_V1.PDF

The Governor’s CV stated the following:

“This bill requires the Department of Environmental Protection (“DEP”) to establish a forest stewardship program for State-owned lands. I commend the bill’s sponsors for their efforts to address this important environmental issue. I agree that it is in the public interest to establish a program for the responsible stewardship of forests on State-owned lands to promote the long-term health and vigor of New Jersey’s forests.

My sole concern with the bill is the requirement that DEP abdicate its responsibility to serve as the State’s environmental steward to a named third party. According to the Office of the Attorney General, this constitutes an improper delegation of Executive Branch authority in violation of the Constitution.” [emphases mine]

Please note the Governor’s use of the word “establish”. The plain meaning of that word is to create something that did not previously exist. Legally, this equates to legislative authorization or enabling authority. Because the Governor used the word “establish”, he correctly determined that a “Forest Stewardship” program did not then exist and had not been legislatively authorized.

The Legislature has not concurred with the Governor’s CV and the bill died. It has since been reintroduced in subsequent sessions, but has not been passed by the Legislature.

Accordingly, the Department has not been legislatively authorized to implement a “Forest Stewardship” program on public lands. That makes the entire plan an ultra vires exercise.

Secondly, the Governor raised a Constitutional flaw regarding “improper delegation” of the Department’s powers to a “named third party”.

The Department has repeated that Constitutional flaw by effectively delegating the development, preparation, and supporting data generation for the SMWMA Plan to private entity NJ Audubon.

Worse, private NJ Audubon developed the SMWMA FSP in accordance with the private Forest Stewardship Council (FSC) standards and procedures. The FSC is the “named third party” in the Governor’s conditional veto.

Not only does this contradict the Governor’s concerns expressed in his CV, it effectively improperly delegates the Department’s authority to a private third party.

The facts show that – by allowing NJ Audubon to develop the SMWMA in accordance with FSC standards – the Department did exactly what Gov. Christie’s CV called “an abdication” of its responsibility and a Constitutionally improper delegation to a private third party.

The Department’s abdication is compounded by the fact that way back in 2009 the Legislature directed the Department to develop a Forest Stewardship program and promulgate implementing regulations.

We note that the SMWMA plan was developed to meet the private FSC standards, not the Department’s own regulatory standards for Forest Stewardship that were mandated by the 2009 law.

We note that the SMWMA was developed in accordance with the private “Stakeholder” and public consultation process procedures of the private FSC, not the public procedures required by the 2009 law and the formal procedures governing agency decision-making pursuant to the Administrative Procedures Act and case law regarding the public and private property owners’  procedural due process rights.

3. The Department’s “14 step process” is rulemaking that violates the NJ Supreme Court’s “Metromedia” decision

According to the SWMA Plan, it was developed and reviewed in accordance with the Department’s internal “14 step process”.

The Department’s “14 step process” is not available to the public as far as I know and it has not been adopted in accordance with the rule making requirements of the NJ Administrative Procedures Ac or the Legislation governing “Technical Manual” procedural requirements.

The elements of the Department’s “14 step process”, particularly with respect to development and review of plans written by a private entity like NJ Audubon, is particularly in need of transparency and public review.

The Department’s “14 step process” appears to govern the substantive content requirements of a “Forest Stewardship” plan as well as whether such a plan complies with DEP regulatory standards and policies.

The Department’s “14 step process” not only serves to define the substantive content of a Forest Stewardship plan and DEP’s internal review of such a plan, but it also governs the PUBLIC review process and procedures for such a plan.

The SMWMA Forest Stewardship Plan is highly significant and would have huge substantive impacts on the environment, the recreational users of SMWMA, the use and enjoyment of private property owners, and the powers and responsibilities of local governments.

Any “14 step process” for the review of such a Plan is highly substantive with respect to determining compliance with environmental laws and regulations, representing the prerogatives and powers of local governments, and protecting the Constitutional and statutory rights of the public and private property owners.

Accordingly, the Department’s “14 step process” constitutes a “regulation”, as defined by the NJ Supreme Court in the “Metromedia” decision, that must be promulgated in accordance with the rule-making procedures of the NJ Administrative Procedures Act, see:

http://www.leagle.com/decision/198441097NJ313_1394.xml/METROMEDIA,%20INC.%20v.%20DIRECTOR,%20DIV.%20OF%20TAXATION

In Metromedia, the NJ Supreme Court defined a rule by these factors:

“We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication. [emphases mine]

The Department’s “14 step process” for Forest Stewardship Plans (FSP’s) meets all six of these criteria (a single one triggers rule making requirements:

1. it is intended to have statewide coverage in review of Forest Stewardship plans that effect thousands of people and property owners and scores of local governments;

2. it applies generally and uniformly to all similarly situated persons who prepare FSP’s and the environmental resources and publics that are impacted by them.

3. it is prospective and applies to all current FSP’s, those under development and future FSP’s

4.  it clearly “prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization” (see prior discussion of the legislative history)

5. it clearly  “reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; – 

The FSP for SMWMA is part of a new initiative within DEP. There are no regulations promulgated to define and implement the program.

Most important, he concept of “forest stewardship” is a controversial, emergent, vague and novel scientific and policy initiative.

6. The 14 step process very clearly “reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy.”

The process applies data and determines compliance with the standards and protections and procedures of the NJ Freshwater Wetlands Protection Act, the Highlands Act, the Water Pollution Control Act, and the Stormwater Management Act and implementing regulations, among others.

The impacts of the SMWMA and all FSPs on the protected rights of the environment, private property and forest users are are highly subsantive and material.

The Department may not implement such a highly material and significantly substantive program informally via this 14 step process.

I request that you withdraw the SMWMA FSP immediately and seek legislative authority and promulgate regulations to implement any FSPs in NJ.

Respectfully,

Bill Wolfe

Ironically, DEP’s Logging Plan Conflicts With Christie’s Veto of “Forest Stewardship” Legislation

DEP Commissioner Martin Urged To Shelve Logging Plan

I figured with the press reporting that the Democratically controlled Legislature is flexing its Constitutional muscles on high profile issues like a Legislative veto of DEP rules and separation of powers concerns regarding the DEP’s budget, that it was worth a shot to at least frame the legislative authorization argument publicly.

Simply put, the Christie DEP is implementing a controversial logging program (“Forest Stewardship”) on public lands that failed to be enacted into law during over 3 years of Legislative debate.

The current Sparta Mountain WMA logging plan is the third DEP logging plan in recent years: plans for Weldon Brook and Mahlon Dickerson preceded it. We don’t know what majestic Highlands forests are next: Hamburg Mountain?

The DEP logging plans contradict the fundamental objectives of the Highlands Act and are a stain on the legacy of the Act’s sponsors.

I’m sure this will upset my colleagues, but the gloves are off and this is a very public fight that should not be dealt with quietly behind the scenes. So, here’s my letter to Legislators and the release of the Highlands Coalition letter to DEP Commissioner Martin:

Dear Chairpersons Smith and Spencer:

As you know, proposed enabling legislation to establish a “Forest Stewardship” program on public lands was conditionally vetoed by Governor Christie and the Legislature did not concur with the Governor’s CV.

Accordingly, the DEP lacks legislative authorization and legislative policy direction to implement a “Forest Stewardship” program on public lands.

I ask that you intervene and conduct legislative oversight, as necessary, to block DEP’s implementation of a controversial initiative on Sparta Mountain that has not been duly adopted into law.

Please see the below communication to DEP Commissioner Martin regarding the merits.

Respectfully, Bill Wolfe

Here is the note from the Highlands Coalition to DEP Commissioner Martin:

Dear Commissioner Martin:

The attached letter from the New Jersey Highlands Coalition, including multiple signatories, summarizes our joint concerns about the proposed Forest Stewardship Plan for Sparta Mountain Wildlife Management Area in Sussex and Morris Counties.  The letter is supported in great detail by our comments, which were submitted to NJDEP through the Department’s comment portal earlier this month and can also be found on our website at http://www.njhighlandscoalition.org/PDF/CT-2016-SpartaMtnFSP.pdf.  The purpose of the sign on letter is to share the extraordinary level of concern we have, specifically that the Plan is not supported by recognized environmental science or data.  Thirty-six (36) organizations and 124 individuals have added their names to the letter, demonstrating that our concerns reflect a range of highly informed interests and expertise from throughout the State.

We believe had the Department anticipated the extent of the opposition to the Plan it would never have proposed it. We respectfully request that the Plan be withdrawn and, instead, the Department take this as an opportunity to reach out to a broad representation of stakeholders in order to develop sound objectives for forest stewardship that merit the support of the scientific, ecological and environmental community.

If you have any questions, please do not hesitate to reach me at 973-xxx-xxxx.

Julia Somers, Executive Director, NJ Highlands Coalition www.njhighlandscoalition.org

Here is the sign on letter from 36 organizations and 124 individuals:

David M. Golden, Chief

Bureau of Land Management, NJ Division of Fish and Wildlife

NJ Department of Environmental Protection

P.O. Box 420

Trenton, New Jersey 08625-0420

Via email: david.golden@dep.nj.gov

RE: Sparta Mountain Wildlife Management Area Forest Stewardship Plan

Dear Mr. Golden,

The following organizations and individuals join with the New Jersey Highlands Coalition in expressing our deep concern about the proposed Forest Stewardship Plan (“Plan”) for the Sparta Mountain Wildlife Management Area (“SMWMA”). As it is currently written, the Plan is fundamentally flawed, and therefore we respectfully ask that you withdraw and suspend it indefinitely.

The Sparta Mountain WMA lies within one of the State’s most significant areas of mature, contiguous, and unfragmented forest. The USDA/Forest Service New York-New Jersey Highlands Regional Study, 2002 Update, identified Sparta Mountain as one of six “Conservation Focal Areas” in New Jersey. The SMWMA is the core of the “Sparta Mountain Greenway” in Sussex and Morris counties, which was deemed by the Highlands Coalition and Regional Plan Association a “Critical Treasure” of the Highlands region, which should remain undeveloped and be preserved for posterity. The proposed Plan embodies a radical departure from established goals of preserving the largest tracts of unfragmented forest in the Highlands, with the intent to protect water quality and supply, undisturbed habitat for interior forest species, including many neo-tropical migratory birds, and recreational, scenic and historic resources.

New Jersey’s Highlands forests have recovered from the effects of logging that supplied charcoal to the iron industry. However, in the 1990’s, these re-growing forests were massively threatened by rapid residential development. In response, both state and federal legislation were passed to protect the Highlands Region and, through the passionate dedication of the state, local governments, nonprofits and citizens, tens of thousands of acres have been acquired as preserved public lands. Sparta Mountain WMA tracts were purchased with funding from the State’s Green Acres Program, local dedicated open space taxes, federal programs, charitable foundations and private donations.

Our concerns include the following:

If Obama EPA can’t stop this, they should just turn out the lights up in Region 2 offices & go home

Roots of disasters in lax EPA oversight model created by Clinton Triangulation

What do the explosion of a West, Texas fertilizer plant that killed 15 people, a West Virginia chemical spill that shut down the City of Charleston’s water supply for 6 weeks, the massive California methane blowout that forced the evacuation of thousands of people from their homes, the Dupont Pompton Lakes site that poisoned 450 homes with toxic vapor intrusion, and the environmental health crises in Flint Michigan and Newark NJ all have in common?

Failed EPA regulatory oversight of State enforcement of federal environmental laws. 

That conclusion was made crystal clear in the West, Texas case, where the US Chemical Safety Board found that the accident was caused by:

The Clinton/Gore sellout

EPA takes a hands off approach to State oversight under a program known as the “National Environmental Performance Partnership” (NEPPS). Walk softly, carry no stick:

EPA and states share responsibility for protecting human health and the environment. The unique relationship between EPA and states is the cornerstone of the nation’s environmental protection system. Working together, EPA and states have made enormous progress protecting our air, water, and land resources.

The current EPA NEPPS program is a radical departure from the strong federal role established in virtually every major environmental law passed by Congress in the 1970’s.

The roots of EPA’s failure to oversee State enforcement of federally funded and/or delegated environmental programs may be found in the Clinton Administration’s “Reinventing Government” initiative.

Some corporate Democrats trace the origins of that initiative to “a 1992 campaign promise by then candidate Bill Clinton to “reinvent government,” a term taken from the best-selling book “Reinventing Government” by David Osborne and Ted Gaebler”.

But the real impetus is far more cynical and craven.

In another example of Clinton’s Neoliberal Triangulation, Clinton used Al Gore to dupe environmentalists and lead an effort to appease radical Republican state’s rights ideologues who came to power in Newt Gingrich’s 104th Congress under the banner of the “Contract On America” (hit link and note the origins in the “Reagan Revolution”).

The US government’s “official history” makes the Clinton motives clear:

Recognizing the election of a new Congress in fall 1994 as an opportunity to further governmental reform, President Clinton asked Vice President Gore to launch a “second phase” of reinvention. The emphasis of this review was more on “what” government should be doing, but also included additional reforms to “how” the government works.

NPR undertook a major reform of the regulatory system. Agencies identified $28 billion a year in reduced regulatory burdens and proposed eliminating 16,000 pages of regulations. They also proposed to change the way they enforced regulations, to increase the use of partnership arrangements and reduce historical emphases on identifying procedural violations.

So Clinton saw right wing nut Newt Gingrich and his Contract on America as “an opportunity” to further regulatory reform (just like he did in deregulating Wall Street, ramming trade agreements through Congress that killed US jobs, and ending welfare.)

That Clinton “regulatory reform” not only essentially gutted federal EPA oversight of States, it weakened federal regulations across the board and put a damper on efforts to close loopholes, respond to new science, and develop new regulations.

That Clinton capitulation also fueled the parallel rise of the radical legal attack and formation of The Federalist Society, who under the banner of federalism produced the majority power of the right wing pro-corporate views of Supreme Court Justice Scalia.

So, we can thank Bill Clinton for another disastrous policy initiative that is now producing visible results.

The Christie DEP Budget flouts a weak EPA NEPPS program

Deep in the weeds of Governor Christie’s proposed FY’16-17 DEP budget, on page D-138 we find the following is budget language:

Notwithstanding the provisions of any law or regulation to the contrary, of the federal fund amounts hereinabove appropriated for the programs included in the Performance Partnership Grant Agreement with the United States Environmental Protection Agency, the Department of Environmental Protection is authorized to reallocate the appropriations, in accordance with the grant agreement and subject to the approval of the Director of the Division of Budget and Accounting.

What this effectively means is that, in addition to bypassing and rendering meaningless the Legislature’s budget powers, the Christie DEP is reserving power, solely unto itself, to use federal grant money as it sees fit, regardless of the NEPPS contract, and the EPA can go and pound sand. 

Obviously, this violates federal law, the federal EPA NEPPS contract with NJ DEP, and various federal delegation agreements.

If the Obama EPA can’t stand up to that – and defend a toothless NEPPS EPA oversight model – then they should just turn out the lights up in Region 2 offices and go home.

Reform Faction Must Seize Control of Policy Agenda & Rein In Executive Director’s Power

We make the road by walking. ~~~  Paulo Freire

The Pinelands Commission switched their regular Friday meeting day to Thursday in respect of Good Friday, so lets begin with a Biblical metaphor.

Executive Director Wittenberg is so cynical that she threw her newest professional staffer to the lions, as a tactic to manipulate the Commission and the public.

… they deserve the name of faction who conspire to bring odium on good men and virtuous, who cry out against innocent blood, offering as the justification of their enmity the baseless plea, that they think the Christians the cause of every public disaster, of every affliction with which the people are visited. If the Tiber rises as high as the city walls, if the Nile does not send its waters up over the fields, if the heavens give no rain, if there is an earthquake, if there is famine or pestilence, straightway the cry is, “Away with the Christians to the lion!” ~~~ “Apology”, c. 40 ~~~ Tertullian

That’s harsh, so let me explain.

Everyone knows that the most controversial and pressing issues now before the Commission are the destruction of the Pinelands resources by motorized vehicles (not just the “Mudders” and not just in Wharton State Forest), the NJNG and SJG pipelines, and the need to restore the Commission’s independence and integrity (for a sense of that challenge, see the recent Philadelphia Inquirer editorial: “Christie bullied Pinelands panel to get his way”)

For a sense of exactly how current these issues are, last week, BPU issued another approval of the NJNG pipeline and just the day before the Commission’s Thursday meeting DEP issued a major public announcement regarding their plan to address the motorized vehicle issue in Wharton State Forest.

Executive Director Wittenberg and two Commissioners attended the DEP’s March 22 “Stakeholder” meeting where the DEP’s plan was presented.

[*An important aside is necessary here: regular readers will recall that previously, in response to my questions during the March 11 meeting, Ms. Wittenberg stated that the DEP “Stakeholder” meeting was “by invitation only”, that she was representing the Commission, and that the Commissioners who expressed an interest were not invited and could not attend. I was outraged by that, testified calling it “radical”, and later wrote about it.

How is it possible for the DEP to block Pinelands Commissioners from a key meeting regarding the Pinelands?  How can Wittenberg, who reports to and serves at the pleasure of the Commission, defend DEP’s restriction and tell Commissioner that they could not attend?

So obviously, something changed and two Commissioners did in fact attend the DEP meeting.  This may seem a minor victory, but this is exactly how the Commission must claw back its powers from Wittenberg. I’d love to see the last minute revised invitation letters to those Commissioners! And so much for DEP’s bogus restriction in their “by invitation only” letter that “Due to space limitations, only one person per organization can attend.” – Eat those words DEP Commissioner Martin! ~~~ end aside]

Critically, DEP announced at this March 22 meeting that they had abandoned their initial “Motorized Access Plan” (MAP) initiative (which was based on and included a map) and would not be adopting any maps of areas or roads that would be closed to protect environmentally sensitive areas.

DEP’s abdication now makes it absolutely essential that the Pinelands Commission fulfill its responsibilities to designate areas that are not appropriate for motorized vehicles via a CMP amendment adopting a map (for a discussion of those CMP powers and the criteria to define environmentally unsuitable areas, see this February post and this more recent post.)

Stating the obvious: given this context and timing, at a minimum, the DEP’s plan and the Commission’s response should have been front and center on the Thursday meeting agenda.

Yet the Commission’s agenda completely ignored all these issues – and instead, the only substantive “Plan Review recommendation” – lingo for how the staff tee up policy issues and CMP amendments for the Commission’s review and approval – was a briefing by their newest professional staffer on “sign regulation in the Pinelands”

That’s right: signs. The poor staffer did a professional job, but make no mistake: he was thrown to the lions:

“Bread and circuses” (or bread and games; from Latin: panem et circenses) is metonymic for a superficial means of appeasement. In the case of politics, the phrase is used to describe the generation of public approval, not through exemplary or excellent public service or public policy, but through diversion; distraction; or the mere satisfaction of the immediate, shallow requirements of a populace,^[1] as an offered “palliative.”

In a classical diversion, the Commission spent almost an hour discussing signs – while ignoring the motorized access issue and the DEP’s abdication just the day before.

The agenda for the meeting seemed designed to divert and manipulate the Commission and the public and avoid discussing   far more important and controversial issues.

Only after I called them out on the failure to brief the public on the DEP “Stakeholder meeting” did acting Chairman Galletta reluctantly ask Wittenberg to brief the Commissioners and the public about the DEP plan. (Interestingly, new Christie installed Chairman Earlen and his partner Commissioner Avery were absent).

The Commissioners and federal Secretary on Interior representative DiBello responded with an excellent discussion and again indicated a strong and growing desire to provide planning and policy guidance to DEP about where DEP should enforce motorized vehicle access restrictions based on a map adopted by the Commission.

It is now obvious that Wittenberg does not want the Commission involved in motorized vehicle issues in deference to DEP and will do just about anything to throw up roadblocks.

This is just the most recent indications of her unilateral abuse of power, loyalty to Gov. Christie and DEP, and end run around Commission’s policy powers.

That abuse must stop.

But the abuse will end only if and when a majority faction on the Commission emerges and seizes control.

To accomplish real reforms will require confrontation – something many Commissioners are uncomfortable with – and it require Resolutions and Votes by the Commission setting policy. This may even trigger vetoes of the minutes by Governor Christie.

If so, so be it – at least the Commisssion will be on a road to redemption.

As Paulo Freire famously said: “We make the road by walking“.

So here are key first steps on that road this year:

1. Rescind delegation of power to the Executive Director to make unilateral decisions on major issues

2. Impose a moratorium on review of fossil infrastructure until a climate & energy  policy is adopted in the CMP

3. Restrict water use to protect ecosystems – implement the long delayed Kirkwood-Cohansey Study

4. Amend the CMP to adopt a map where motorized vehicles are prohibited

5. Put teeth in the new MOA policy by adopting standards to define equivalent protection – codify in CMP

We’ve previously written about each of those issues, so until we update them with more specific recommendations, readers that are interested in these 5 steps should use the word search function at top right.