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Documents Show DEP Repeatedly Lied About Stream Buffer Rollbacks

“Response to public comments” opens door to abuse

The skids have been greased – the DEP permit process is rigged

Given how the Pinelands Commission responded to the Court’s remand and the fast track BPU amendment of the Orders in response, we can only assume that DEP will jump on the bandwagon and issue the DEP permits BEFORE THE PINELANDS COMMISSION’S PUBLIC HEARING ON THE *SJG PIPELINE ON JANUARY 24.

A lot of complex moving parts here, so pay attention!

According to *documents* obtained by the Pinelands Preservation Alliance under NJ’s Open Public Records Act (OPRA), it appears that the Christie DEP is ready to issue environmental permits for the controversial Transco compressor station (“Garden State Expansion” (GSE)) to serve the NJ Natural Gas’ (NJNG) proposed “Southern Reliability Link” (SRL) and the South Jersey Gas pipelines (SJG). Both pipelines go through the Pinelands National Reserve and were blocked by lawsuits filed by environmental groups. The compressor station is planned to be located in forested wetlands and farm fields in Chesterfield, outside but on the northern edge of the Pinelands.

These DEP permit documents also provide a smoking gun: they prove that DEP lied repeatedly to legislators, the media, EPA and the public about whether DEP’s massive 1,000+ page “overhaul” and “re-alliagnment” (DEP’s words) of the flood hazard act (stream encroachment) regulations would weaken protections and make it easier for pipelines to secure DEP permits.

DEP repeatedly claimed the the proposal would merely “streamline” the permit process and maintain current standards and protections. DEP claimed that environmental critics simply were wrong and did not understand the rule.

Those DEP lies derailed a pending Legislative Veto of the rules, and provided political cover for a dirty deal between Senate President Sweeney and Gov. Christie.

But buried on the final page of a complex 14 page December 2, 2016 letter from Williams (Transco, GSE) to DEP, we find this smoking gun admission that DEP’s rules weakened stream buffer protections:

Got that? Let me repeat: Transco noted that  “change in the Flood Hazard Act Control Act Rules (sic) eliminat[ed] the 150 feet riparian zone” and that now there is a “50 foot riparian zone now present on site”.

DEP lied about how that was done too – i.e. under revised and weaker standards to obtain a “Permit by rule” (PBR). On day one, we told you so:

• proposes 19 new permits-by-rule (PBR). There is no DEP or public review of a PBR.

Recent background

The overall project involves BPU, Pinelands Commission, and DEP approvals.

On December 9, 2016, the Pinelands Commission announced plans to fast track approval of two controversial natural gas pipelines: NJNG SRL and the SJG pipeline. The Commission schduled a public comment period and public hearing on the SJG pipeline for Jan 24, 2017 and passed a Resolution seeking to consolidate the NJNG and SJG litigation.

The Commission was forced to respond to a November 7, 2016 decision by the Appellate Division that found the prior unilateral approval by Executive Director Wittenberg violated the Pinelands Act. The Court directed the Commission to hold public hearings and determine whether the SJG pipeline was consistent with the Comprehensive Management Plan (CMP).

Wasting no time, the following Monday (12/12/16), the Christie Board of Public Utilities (BPU) quickly followed suit and responded to the Court by rubber stamping and revising prior approval Orders, as the Court directed.

Like the Pinelands Commission, BPU also ignored the Court’s mandate to revise the Pinelands CMP to address “coordinating permitting by state agencies“. After a detailed discussion of how Wittenberg violated the Pinelands Act and applied the CMP regulations to, among other things, the “coordinating permitting by state agencies”, the court directed (see the Court’s opinion @ page 20 – 24):

Both the Commission and the BPU failed to consider and comply the Court’s mandate with respect to “coordinating permitting by state agencies” before they reconsidered prior approvals overruled by the Court.

DEP Environmental Permits

During the same timeframe that the BPU and Pinelands Commission were engaged in behind the scenes moves, the Christie DEP also has been quietly working behind the scenes to facilitate approval of pending freshwater wetlands, dewatering, and coastal zone permits for the compressor station and NJNG SRL pipeline, including a critical Clean Water Act Section 401 Water Quality Certification.

The dewatering permit for the compressor station has been held up since May. One of the key issues raised by opponents was whether construction would harm nearby wetlands and residential drinking water and agricultural irrigation wells. As the photo above shows, DEP required that Transco install groundwater monitoring wells. I suspect that this will be the cover for DEP approval of this permit: “don’t worry, we’re monitoring the situation”.

Opponents should demand that DEP require at least 4 quarters of groundwater elevation and water quality data before issuing the dewatering permit.

Similarly, for the same reason DEP required groundwater monitor wells, the project applicants should be required to collect at least 4 quarters of surface water monitoring data to document “existing water quality”, including existing biological uses.

The compressor station and NJNG SRL pipeline also must obtain freshwater wetlands and CAFRA permits. Under an EPA delegation agreement, the DEP State wetlands permit satisfies the federal Clean Water Act 401 Water Quality Certification.

After huge public turnout force cancellation of hearings back in August on wetlands and CAFRA permits, DEP held a series of public hearings on those permits, the final one was held on October 19.

Since then, DEP has been working with Transco GSE (compressor station) and NJNG SRL pipeline. It looks like DEP has sent two letter to Transco and Transco sent 2 replies. I don’t now if these are all the documents. I don’t have the DEP letters.

The most recent documents obtained by PPA involve the response to public comments on the compressor station and NJNG SRL pipeline wetlands permits.

The documents discuss a range of about a 15 technical issues – curiously they are silent on the 401 WQ Certification – but Transco and DEP seem to be focused on the alternatives analysis for the compressor station required under the wetlands rules. Here’s how Transco sees things (12/2/16 letter):

I need to review Attachment A, but there obviously are alternatives “which would have a less adverse impact on the aquatic ecosystem”, so DEP may have a strong basis to deny this permit. We won’t hold our breath for that!

Transco says they’re just responding to public comment. But obviously they are providing legal and technical defenses and are provided with another shot at persuading DEP – an opportunity the public does not have!

Here’s how Transco summarizes the conversation, at the close of a November 10, 2016 letter to DEP:

Transco merely seeks “to assist the Department with the task of responding to all comments” in “preparation of the approved permit.”

Right.

The DEP permit process is rigged

The permit process is heavily biased in favor of the permit applicant not the public.

The bias is present at the beginning and the end of the process.

At the beginning, months before the project was announced publicly, Transco, NJNG, and SJG were given multiple opportunities to meet with DEP staffers and managers.

Those meetings are known as “pre-application conferences”. They are secret and not subject to OPRA. (Listen to how the Pinelands Commission got caught on tape responding to my criticism of “pre-application conferences” with SJG pipeline.)

Those meetings provide access to DEP technical staff and upper management. They allow permittees to understand how DEP interprets the regulations and how to comply with them. They basically iron out all problems in advance and receive conceptual approval of a project before the public is even aware of the existence of a project.

After many months of technical coordination, the public then gets to comment on draft permits at the end of the process.

In this case, DEP held public hearings on the permit applications, not draft permits.

This process allowed the permit applicants to get another bite at the apple and fix any deficiencies the public identified during comments!

But Transco wants even more! They want DEP to provide any additional “new comments” to them as a courtesy so that they can “review and respond” to them –

In contrast, the public must file OPRA requests to obtain this kind of information and has no opportunity to respond to it (a repeat of getting shut out of the secret pre-application conference process).

The DEP permit process is rigged.

Given how the Pinelands Commission responded to the Court’s remand and the fast track BPU amendment of the Orders in response, we can only assume that DEP will jump on the bandwagon and issue the DEP permits BEFORE THE PINELANDS COMMISSION”S PUBLIC HEARING ON THE SJG PIPELINE ON JANUARY 24.

[* Documents provided as PDF’s upon request – sorry I don’t have them as links.]

[*Correction – I stand corrected (h/t to Theresa Lettman of PPA). I incorrectly combined the Pinelands Commission’s public hearing for the SJG and NJNG pipelines. The Jan 24 hearing is only for the SJG pipeline.

But that is merely a procedural technicality on the scheduling of the public comment and hearings.

Under the Appellate Court decision, the SJG case set the precedent for the NJNG pipeline.

Recognizing that legal reality, the Pinelands Commission passed two Resolutions on 12/9  –  Res. # 4-16-43 sought to consolidate SJG and NJNG cases:

https://connect.xfinity.com/appsuite/#!!&app=io.ox/mail/compose

So, in addition to the Court’s legal precedent, it is only a matter of time before the Commission public notices the NJNG pipeline based on the SJG process.

As we noted, the Commission signaled a rubber stamp on the SJG pipeline.

So, as a matter of law and policy, NJNG approval will closlely follow the SJG approval.

The Fog of Authoritarianism and Thuggery Emanates From The Top

[Updates below]

I was forcefully – and painfully – ejected from the State House by a State Trooper on Monday morning before the Trump – Electoral College protest. 

In addition to using excessive force, there was no valid reason for the ejection and the circumstances strongly suggest improper motives by the Trooper.

In response, I filed a complaint with the State Police, accusing the officer of using excessive force, exercising poor judgement, abusing his power and violating my rights by preventing me from speaking with a Senate staffer and news reporter, and getting a copy of pending legislation. Here’s the story.

While I thought it was an odd time to start a State House protest, I arrived promptly at 8 am for the Electoral College protest, as scheduled by the organizers. The place was empty.

So, assuming it would start later, I went into the State House to keep warm, get a cup of coffee at the Cafe, and to pick up a copy of the amended version of the Natural Resource Damages (NRD) dedication Resolution SCR39 from the bill room. Just last week I corresponded with Senator Smith’s Office on that. All routine Statehouse practices I’ve done for many years.

There is a security screening procedure in entering the State House manned by State Troopers: a metal detector, mandatory ID check, and a sign in book with purpose and destination of your visit. Visitors get a pass that must be displayed. All longstanding and routine procedure.

I entered via the front door of the State House and after the security screening, I proceeded to the Cafe.

As I was leaving the Cafe and heading to the bill room, I passed the rear security check in and engaged in a conversation with a State Police officer manning the security check in at the rear of the State House. I was joking about looking for Trump delegates trying to sneak in the back door. The Trooper was curious about what I was talking about.

I told him that a protest was planned for the State House steps and expressed surprise that he apparently was unaware and so gave him a heads up.

He asked me if I had a permit and said that if there were more than 8 people, the State Police would disperse the crowd. I told him it was not my protest, that I had no idea about who organized it and whether they got permits.

He asked me why people were protesting. We then got into a brief debate about the electoral college.

In hindsight, I probably pissed him off by being pedantic, arrogant, and condescending in explaining the history and Constitutional function of the electoral college (blame Harvard Law’s Professor Lessig!):

The Electoral College, which is written into the Constitution, is more than just a vestige of the founding era; it is a living symbol of America’s original sin. When slavery was the law of the land, a direct popular vote would have disadvantaged the Southern states, with their large disenfranchised populations. Counting those men and women as three-fifths of a white person, as the Constitution originally did, gave the slave states more electoral votes.

I guess it’s not a good idea to get into an academic debate with a Trooper.

His reply was (these are very close to verbatim quotes):

“Why should 67 heavily populated counties dictate to the thousands of other counties that make up the country?” … “Why should they dictate my culture?” …  “You shouldn’t be able to vote yourself a raise“.

(Yes, he actually used the word “culture”. Was he referring to “white culture”? He seemed to get pissed when I told him that the Constitution provided no protections for his “culture”. I also was surprised that he seemed to be aware of the general issues of the debate on the Electoral College, because he mentioned a specific number of urban versus rural counties. He must have read that somewhere. I assumed the remark about “voting a raise” was a reference to the proposed Constitutional amendment on the minimum wage. So, was our Trooper some right wing white nationalist Trump supporter? Did he have a political animus to a leftist Trump protester?)

Just as I was explaining the flaws in his argument, a group of people were going through the screening, including a longtime colleague Senate staffer Kevil Duhon (former staff to the Environment Committee).

I greeted and joked with Kevil about the Trump delegates. I wished him happy holidays and patted his shoulder (we may have shaken hands as well, not sure).

The group also included State House radio reporter Phil Gregory, who often has stories on NPR and other NJ radio outlets. As Phil was passing Kevil and I, I asked him if he was covering the Trump Electoral College protest.

At that point, the Trooper demanded that I stop “harassing people”. He then demanded my identification.

I showed him the Visitor’s Pass on my chest and asked him why he needed to see my ID when I already produced that at the front security desk.

He replied because I was “harassing people”.

I advised him that Kevil was a professional colleague and friend and Phil was media and that it was routine to talk to them in the hallways of the State House. I denied that I was harassing anyone and refused to produce my ID saying he lacked a valid reason for requesting it and that I already produced it at the front security desk.

The Trooper then said that I had to leave the building.

I replied “OK, then I’ll go out the same way I came in” and turned and walked away.

After a few steps up the hallway, the Trooper, from my rear, ran up, grabbed my left wrist with one hand and my left elbow with the other and painfully twisted my arm, forcing me to a halt. (I have a bad rotator cuff in my left shoulder and little range of motion. I had surgery to repair my right rotator cuff about 12 years ago.)

He said, “Oh no you won’t – you are going out this door”.

Then, as he was twisting my arm and had me writhing in pain, literally bum rushed me some 30 feet down the hall and shoved me out an emergency door of the rear of the State House. As he was slamming the door, he claimed “And you smell of alcohol”.

(It was 8:20 am – I never drink before noon! I was reminded of the pretextual bullshit in all those murderous videos: “stop resisting” “he’s going for my gun” “watch out for the gun”, etc).

So, I walked around the Annex and State House and went back to the front security checkpoint and asked to file a complaint.

Curiously, in interviewing me, the Commanding Officer refused to give me the Trooper’s name and badge number required by the complaint form. He also claimed that I had become “combative” (his word) with the Trooper. I objected immediately and told him that we needed more civilian control of the military and the State Police.

Less than an hour after I filed the complaint, I got a call from State Policed investigators – funny, they didn’t know that their own State House Office faxed the complaint to them and asked my if I was the one who faxed it to them! The interview went well and it was the first interaction with State Police that day that met professional standards.

We’ll keep you posted on the outcome.

[Update #1: 1/13/17 – I got a certified mail letter today from the State Police acknowledging receipt of my December 19, 2016 complaint and advising that:

The New Jersey State Police Office of Professional Standards is currently in the process of performing a preliminary review of the complaint. At the conclusion of this review, you will be contacted by someone from my office with regard to its findings and the status of the complaint.

The boldface phrase was in the original letter, which I find odd as it highlights the fact that the review is being conducted without a detailed or sworn interview with me, the complainant.

I filed a brief written complaint on December 19, shortly after the event on a State Police form – I identified 2 witnesses, one of which (Kevin Duhon) was called in my presence by State police – and had a phone conversation about an hour afterward with a State Police officer. So, I guess that information is adequate at this point.

We’ll keep you posted.

[Update #2 – 1/27/17 – On Monday (1/23/17) I got a call from a State Police Captain who conducted a thorough phone interview of my version of what happened. He will render a decision in 10 days or so.

I learned that there is a video of the incident, which he told me he watched and said that corroborates my story. Captain went out of his way to admit that at no time did I look threatening or “combative”. It seems there is one difference in the story the Officer told him versus what I told him. Officer claimed he directed me out the emergency door before he grabbed me and bum rushed me out. I don’t recall it that way. I distinctly recall him saying that I would leave via that door after he grabbed me.

[Update #3 – 2/2/17 A very interesting article at The Intercept – I wonder if there has been infiltration of the NJ State Police? The subject officer’s comments hinted at a “cultural” agenda.

• The FBI Has Quietly Investigated White Supremacist Infiltration of Law Enforcement ~~~ end updates]

[Update #4 – Not surprisingly, the State Police Office of Professional Standards dismissed the complaint. I recently heard about it verbally and did not receive their letter because I am on the road.

All I can say is that NJ State Police “professional standards” are pretty low when they allow that kind of conduct – which included physical abuse and an appearance of political motivation and suppression of political speech at the State Capitol- to go unpunished.]

Message From Trenton, NJ: “Stop Trump”

Despite the cold and wind, over 200 hardy citizens went to Trenton NJ today to give a message to the electoral college:

“Electoral College Do Your Job – Don’t Elect a Demagogue” they chanted during a Statehouse protest.

Electors met in 50 State Capitals today to select the next President.

The question is: should they honor their State vote pledge to Trump or vote their conscience.

Harvard Law Professor Lawrence Lessig makes the case that electors are not legally bound to honor their state vote, that the ethical obligations are complex, and that they should instead vote their conscience.

The electoral college is a vestige of the Constitution’s anti-democratic origins, when only elite white men who owned property could vote (see: “Taming Democracy”). Elite’s structured the Constitution to preserve elite privilege and block direct democratic control of governmental power.

Alexander Hamilton lays out the elite’s justification in Federalist #68 – portions of which raise pertinent arguments, particularly given Trump’s “foreign entanglements”. Hamilton wrote:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes;

It erects “obstacles” that serve as barriers to democracy and contradicts the concept of “one man – one vote” that most Americans incorrectly believe is the legal principle that governs voting for President.

The fact that Hillary Clinton won the popular vote by almost 3 million votes but lost the electoral college vote by a wide margin has shone a bright light on this anti-democratic Constitutional reality.

Here’s some photos that prove democracy is alive and that people fully understand the stakes: (apologies for the poor quality – no processing and portable camera)

My friend Jeff Tittel (Sierra Club) urged people to honor the legacy of historical progressive social movements – abolition, women’s suffrage, workers rights, union organizing, 8 hr. wrk day, New Deal reforms, anti-war, gay rights and environment – and unite in common cause to Stop Trump.

Looks like “It’s a hard rain, gonna fall”.

Is DEP Commissioner Martin Punishing Critics of His Foolish Clear Cut Plan?

Buildings recently demolished – will Park open in 2017?

On a bracing Wednesday afternoon this week, with blue skies and a stiff northwest wind blowing, we decided to take a trip up-river and see what – if anything – had gone on at Bulls Island State Park since our last visit in March 2016, see that post for photos. Those not familiar with this Bulls Island saga should  hit the links for the troubled history:

• Bulls Island Remains Closed For The Sixth Year

Of course we ignored the “Area Closed” signs – us dogs can’t read:

We were immediately greeted by a red tail hawk presiding over the D&R Canal. He let us get real close, but I didn’t have an adequate camera and lens. Can you see him well camouflaged in the sycamore tree?

We were pleased to note that the buildings were demolished and the playground almost gone. The mouldering park benches remained, however. And we did not see many more trees that fell, as predicted by DEP’s consultant (a large riverbank sycamore had fallen safely into the river)

I guess the demolition work paves the way for the park to re-open in 2017 for passive recreational use and DEP designation as a natural area.

But DEP is mum about that – at least as far as I know. The DEP Bulls Island web page has not been updated literally in years.

Surprisingly, despite this unforgivable neglect of one of NJ’s most spectacular and popular state parks, DEP Commissioner Martin has dodged accountability and not faced any tough questions.

Which leads to serious questions that should be posed to DEP Commissioner Martin by citizens, park lovers, legislators and media, including:

1) will the Park be re-opened for the 2017 season? Will the paved roads be removed? Will trails be established? What uses will be allowed?

2) What explains the more than 5 year delay in re-opening the park?

3) Will DEP designate the northern portion of the island as a “natural area”?

4) Did recent cuts by the Open Space ballot question divert funding for park restoration?

5) Where is DEP’s Park restoration plan and when will it be submitted to the D&R Canal Commission for public review and approval?

Some photos – compare to prior post photos from March:

Whitman is the queen of self serving revisionism and hypocrisy

Whitman set back EPA climate regulation for over a decade

[Update below – NPR interview]

In a Washington Post Op-Ed, Bush Administration US EPA Administrator and former NJ Governor Christie Whitman blamed climate activists for the Trump administration’s climate denial. Whitman wrote:

Pruitt has questioned “the degree and extent of global warming and its connection to the actions of mankind.” I have long said that activists have done themselves a disservice by stressing that humans have “caused” climate change. That claim to sole causation results in people like Pruitt dismissing the need to address climate change because they doubt that humans have done all of the damage. The climate has always changed — after all, we’ve had numerous ice ages without human influence — but human activity has undoubtedly exacerbated Earth’s natural trends beyond its capacity to adjust.

So the climate activists – not the energy industry – are the cause of climate denial! (in contrast to Whitman’s lightweight spin, for a serious critical analysis of climate communication, read this:

Those familiar with climate science are perfectly comfortable with the fact that one can be certain about the anthropogenic nature of changes in the climate and uncertain about what the implications of that science are, how those changes will play out. However, within the media and political spheres, uncertainties around our knowledge about the speed, distribution and magnitude of climate change impacts have been conflated with (non-existent) uncertainties about the anthropogenic nature of the observed warming trends, resulting in the ‘condensation’ of uncertainty’s many meanings and complexities into ‘one undifferentiated category’ (Shackley and Wynne, 1996: 285). […]

Other commentators claim that the extent and significance of the uncertainties are exaggerated by decision makers so as to postpone taking action that may be unpopular with the public, powerful interest groups, or both (Boykoff and Boykoff, 2004; Weingart et al., 2000). Stocking and Holstein discuss how corporate and special interests have developed a wide repertoire of methods to manufacture doubt about science that threatens their interests, most recently focusing the skills learnt from tobacco lobbying to climate change (Stocking and Holstein, 2008: 23). The fear that politicians will exaggerate uncertainty to appease powerful interest groups causes scientists to downplay the uncertainties, according to Lövbrand (2004: 453). As one prominent climate scientist noted, ‘because climate change is not just a scientific topic but also a matter of high policy, good data and thoughtful analysis may be insufficient to overcome confusion that masquerades as uncertainty caused by the clash of different interests, standards of evidence, or degrees of risk aversion/acceptance’ (Moss, 2007: 5). Bazerman (2006) asserts that there is no significant uncertainty in the climate change debate as regards the primary issue: our political elites know climate disasters are inevitable but are refusing to act – a point echoed by Dessai et al. (2010), who maintain that the uncertainties are not of sufficient magnitude to prevent policymakers planning effective adaptation strategies. (page 46)

That quoted load of self serving crap in the WaPo Op-Ed came from a woman who – in quoted comments in a NY Times story – revealed that she didn’t know the difference between climate change and depletion of the ozone layer:

Now George W. Bush takes office. His party platform calls for more research into the issue; he has waffled on it. His choice for energy secretary, Spencer Abraham, is a Michigan senator who worked hard to protect Detroit from stricter fuel-efficiency standards. And his nominee for chief of the Environmental Protection Agency, Gov. Christie Whitman of New Jersey, muddled the science of climate change with the chemistry of the ozone hole in an interview last week.

Whitman’s scientific ignorance originally was revealing in an embarrassing NY Times story:

Whitman’s statements this week left some scientists and environmental advocates perplexed, especially since her administration has been a leader among the states in addressing the problem. For example, New Jersey was the first states to set a target for reducing emissions of greenhouse gases.

But when asked to discuss her views on the science behind global warming on Tuesday, Governor Whitman responded by citing her doubts about the causes of the hole in the protective ozone layer high in the atmosphere.

She was asked: ”Global warming, what is your thought on what the state of science is and what can be done to address it?”

Mrs. Whitman said: ”Still somewhat uncertain. Clearly there’s a hole in the ozone, that has been identified. But I saw a study the other day that showed that that was closing. It’s not as clear, the cause and effect, as we would like it to be.”

When some experts on the atmosphere and pollution read a transcript of Mrs. Whitman’s statements, they said the governor had clearly confused two distinct, important global environmental problems: global warming and the ozone hole.

Today, asked to clarify her views, the governor said she might have misunderstood the question, but added that she did not think the two issues were ”not interrelated.”

Note how, when called on it, Whitman dug in instead of admitting error.

Far worse, however, was that, while EPA Administrator, Christie Whitman’s legal advisor, Bob Fabricant, wrote an ***infamous legal memo that rescinded the prior Clinton Administration’s legal opinion that greenhouse gases were regulated “pollutants” under the Clean Air Act.

[***Note: The US Supreme Court, in the the groundbreaking Massachusetts v. US case, took cognizance of and rejected the Fabricant memo’s analysis. See page 8, where the Court discusses EPA’s September 8, 2003 Order denying a petition for rulemaking. Fabricant’s memo was the foundation of the EPA denial, as noted in the Federal Register Notice: (68 Fed. Reg. 52922 – 52925)

EPA’s General Counsel, Robert E. Fabricant, reviewed his predecessors’ memorandum and statements, as well as the public comments raising legal authority issues. The General Counsel considered the text and history of the CAA in the context of other congressional actions specifically addressing global climate change and in light of the Supreme Court’s admonition in Brown & Williamson to “be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such * * * magnitude to an administrative agency.” In a memorandum to the Acting Administrator dated August 29, 2003, the General Counsel concluded that the CAA does not authorize EPA to regulate for global climate change purposes, and accordingly that CO₂ and other GHGs cannot be considered “air pollutants” subject to the CAA’s regulatory provisions for any contribution they may make to global climate change

That climate denying EPA decision was not made by Dick Cheney, but by Whitman and the legal advisor she brought to Washington from her Trenton Governor’s Office to serve as her EPA Counsel. Whitman set back EPA regulation of greenhouse gases by over a decade, an historical fact that she has never been held accountable for.

Inquiring readers should hit this link for the details and links too documents:

• Setting the Record Straight on Christie Whitman and Global Warming

Whitman has been criticized for her lies that the air in southern Manhattan was safe to breath following 9/11, but not for the multiple times she rolled over to political pressure from the Bush White House.

And while she was blaming climate activists for climate denial, Whitman – a former BP lobbyist – could not help shilling for her nuclear industry corporate clients – putting nuclear power on a par with energy conservation & efficiency, while cynically invoking the false pretext of jobs::

There are very practical ways that the EPA and federal government can protect our environment, as well as human health and our infrastructure. To slow the rate of climate change, we need to reduce our carbon output; thankfully, there are ways to achieve that goal that have significant economic benefits as well. Promoting energy conservation and reminding people only to use what they actually need benefits household budgets. Building nuclear plants and other clean-energy sources creates good jobs for Americans.

In another remarkable example of chutzpah and hypocrisy, Whitman very gently criticizes Pruitt’s attacks on EPA and environmental regulations (note the use of the passive voice: “has drawn criticism”. I guess this means that Pruitt has not drawn criticism by Whitman.):

President-elect Donald Trump’s nomination of Oklahoma Attorney General Scott Pruitt to head the Environmental Protection Agency has drawn criticism because of Pruitt’s public stances against the agency’s authority and his numerous lawsuits to block agency regulations in his state

That is gross hypocrisy, given NJ Gov. Christie Whitman’s anti-regulatory pro-corporate policy and attacks on NJ DEP and dismantling of that agency, a policy exposed in a Bergen Record award winning 13 part series.

For more specifics on Whitman’s environmental record, see The Nation’s profile:

• Whitman: A Toxic Choice

Thanks to Whitman’s evisceration of state enviro regs as well as a raft of subsidies and tax cuts to developers, suburban sprawl gobbled up more open space and verdant land during her tenure than at any other period in New Jersey’s history. Moreover, she decapitated the state Department of Environmental Protection staff by 738 employees in her first three years in office, cut the remaining staff’s workweek by five hours, eliminated fines of polluters as a source of DEP revenue and made large cuts in the DEP’s budget. That’s why the New Jersey Sierra Club’s Bill Wolfe has warned that Whitman might “dismantle [federal] EPA and take it out of the enforcement business. I believe that this is precisely the policy Whitman has presided over and legitimized in New Jersey.”

Whitman was a darling of the corporate media and a certain elite faction of the “conservation community” – folks I like to call the Pontefract equestrians.

But she was no moderate on the environment or climate change.

Trump and Pruitt are the logical extension of her legacy.

[Update – 12/14/16 – Of course, NPR joined the pack mentality of the corporate press and provided Whitman with a national platform this morning. Listen and read the transcript.

Whitman is already walking back and softening her misleading claim about Pruitt’s climate denial I noted above. Now she says this in response to a point blank question from NPR:

GREENE: You know, you and others have called him a climate change denier. But, you know, my colleagues at NPR who report on science have looked very hard to find if there’s been an explicit time when he has said that. Do you know of a time when he’s actually denied climate change?

WHITMAN: Well, it’s been more in action. It’s a little bit like Donald Trump. I mean, do you believe what he says or what he does? He says he wants to talk about climate change. But the people he appoints are people who have, time and again, sued the agency or said things that would indicate that they really don’t believe that climate change is a serious issue. It’s concerning.

There is no daylight between Pruitt’s legal attack on EPA’s Clean Power Plan and Whitman legal Counsel Fabricant’s memo I cite above. In fact, Whitman’s attack on EPA’ legal authority was even more profound than Pruitt’s.

But aside from the climate denial, science, and regulatory issues, I found this exchange about the Trumps “witch hunt” at Dept. of Energy very interesting – it suggests that the career civil servants and scientists at EPA might not be loyal to Pruitt’s agenda.

Whitman said she could “understand” the Trump administration’s concerns about the loyalty of EPA employees and her remark  now that we’re in, now that we’re the ones in control? are particularly revealing in light of Whitman’s retaliation against a DEP career employee that blew the whistle on her own scientific misrepresentations:

GREENE: I want to ask you about this questionnaire that has made some news, the Trump transition team circulating a questionnaire in the Department of Energy. Part of it is asking for the names of people who have worked on climate issues and have gone to conferences. What’s your reaction to that?

WHITMAN: If I were a federal employee, I’d be very nervous about it. Why? Why would you need to know that? If they are a career civil servant that’s carrying out the policies of the incumbent administration, why do you need to know that they’ve been good civil servants for this one issue? It implies that since this is not going to be your policy, you’re going to assume that that’s what they’re going to do no matter what. And they’re going to try to undercut you. And therefore, you’re going to try to get back at them – some kind of retribution.

GREENE: I guess I – on this questionnaire, I guess I just wonder if, you know, when you were running the EPA, wouldn’t you have wanted to know what work was being done by scientists? Might you have, you know, said, like, let me put a questionnaire out there? I want to know what people have been working on. I want to know, you know, what conferences they’ve been to. Isn’t that an element of control and knowledge that you’d sort of want?

WHITMAN: No, not what conferences they went to because they have to be approved by the administration. So whatever they were going to was something that had something to do with their work that the previous administration – they were comfortable with. What I care about is what are they wanting to go to now – now that we’re in, now that we’re the ones in control? No, it never would have occurred to me to ask that question.

GREENE: You seem to be saying that the – Trump seems to be almost questioning loyalty before he comes into this new job.

WHITMAN: Yes, I can understand they’re being very concerned. Listen, most of the people that I’ve found at the Environmental Protection Agency, the vast majority of them just want to do their job. At EPA, they believe in preserving and protecting public health and the environment. And so they’ll do it whatever way you tell them to do it as long as they believe that’s what you’re after. It’s when they don’t think that that’s what you really want to do that you can start running into problems.