Dead Vultures Coming Home To Roost

DEP Mismanagement Exposed By Expanding Bird Flu Risks

DEP Spun The Science, Downplayed Risks, And Misled The Public

Back in August of 2022, we blasted the Murphy DEP for allowing dead vultures to rot in the woods along a portion of the Sussex Branch Trail in Lafayette, NJ, warning that such practices could lead to an epidemic of bird flu.

Longtime NJ reporter Bob Hennelly wrote:

The United States Department of Agriculture had confirmed that over 100 black vultures had died in that portion of the trail from Avian Influeneza (bird flu).

New Jersey DEP Fish and Wildlife have left the dead birds to decompose on site due to rough terrain causing accessibility issues and a lack of personnel in the State certified to handle infected birds,” the notice said. “Improper handling can lead to further spread of disease.”

The agency went on the reassure the public that “the risk of avian influenza being transmitted to people is extremely low” and that the “New Jersey Department of Agriculture and NJ DEP Fish and Wildlife are continuing monitoring the situation.” …

Bill Wolfe, a former DEP official and whistleblower, said the choice to let the contaminated vultures rot in the wild has roots in what has been a bi-partisan drive going back to the Gov. Florio administration to try and make the DEP more self-sustaining off of the revenues it can raise through permitting and promoting commercial activities.

“DEP Fish and Wildlife has plenty of staff available to promote hunting and logging of State lands (wildlife management areas) but not enough to dispose of dead birds? Are you kidding me?,” Wolfe said. “This is just another example of how DEP budget cuts, misplaced priorities driven by revenue generating activities like hunting and fishing, and lack of leadership at the top directly threaten public health and healthy ecosystems.”

That DEP “reassurance” about health risks was absolute bullshit at the time and we called it out, see:

Our criticisms and warnings were ignored by DEP, NJ media and legislators.

Unfortunately, our warnings and criticisms of DEP again were vindicated. Today’s NY Times:

The bird flu outbreak in dairy cattle has so far spilled over to just three farmworkers in the United States, as far as public health authorities know. All of them have had mostly mild symptoms.

But that does not guarantee that the virus, called H5N1, will remain benign if it begins to spread among people. Accumulating evidence from the animal world and data from other parts of the globe, in fact, suggest the opposite.

In a supporting story reviewing some of that “accumulating evidence” about how the bird flu is spreading, today’s NY Times reports that the DEP assurances were false:

“As we get more dead, wild birds on the landscape, if we get more dead poultry on the landscape, these carnivores that may get into them and ingest them, even after they’re dead, are getting just a massive dose of virus,” said Dr. Justin Brown, a wildlife veterinarian at Penn State.

Repeat – “dead, wild birds on the landscape,” create “just a massive dose of virus.”

When will NJ media and environmental groups begin to hold DEP accountable to science and facts, instead of press release spin?

We’re not holding our breath.

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Over His Dead Body

Public Citizen’s Support of FDA Contradicts Dr. Wolfe’s Legacy Of Challenging FDA

[Update below]

Right now, I’m reading the Supreme Court decision on mifepristone (the abortion pill). Justice Kavanaugh wrote the opinion, see:

https://www.supremecourt.gov/opinions/23pdf/23-235_n7ip.pdf

That case could have been a vehicle for the Supreme Court to reverse the “Chevron deference” doctrine.

But, I correctly predicted that the Court would find a technicality as a way to wiggle out without addressing the merits, because to again block abortion and reject Chevron deference would seriously hurt Big Pharma (and further undermine the Court’s reputation following the prior decision to reverse Roe v Wade and terminate a woman’s right to an abortion). I concluded:

I will predict that the Court will find a way to uphold the Texas decision partially, allowing the restrictions to stand in anti-abortion Red States, but they will do so in a way that does NOT allow stricter judicial scrutiny of FDA decisions.

[Update 6/20/24 – Here’s how the NY Times confirms that:

The ruling ensures, for now, full access to the drug, which is used in the majority of abortions in the United States. But it does not unravel restrictions on the pill in more than a dozen states that have passed near-total abortion bans since the court overturned Roe v. Wade. ~~~ end update]

And that’s exactly what they did in rejecting the challenge for lack of standing, see:

Could you imagine the outraged response if the Supreme Court blocked a public health group’s like Public Citizen’s challenge of FDA regulatory failure for lack of standing?

Or an environmental group like Sierra Club lawsuit to stop logging for lack of standing? The Court rubbed salt in an historic wound:

Like an individual, an organization may not establish standing simply based on the “intensity of the litigant’s interest” or because of strong opposition to the government’s conduct … “no matter how longstanding the interest and no matter how qualified the organization,” Sierra Club v. Morton, 405 U. S. 727, 739 (1972).

Or climate activist group like 350.org lawsuit to stop a pipeline for lack of standing?

The Court even provided a related hypothetical:

Consider some examples. EPA rolls back emissions standards for power plants—does a doctor have standing to sue because she may need to spend more time treating asthma patients? …

The answer is no: The chain of causation is simply too attenuated.

Is that a liberal view of science and standing?

Would Dr. Wolfe and these groups accept the Supreme Court’s description of their work as:

Article III requires, and that courts do not opine on legal issues in response to citizens who might “roam the country in search of governmental wrongdoing.”

How would they feel about having their work dismissed like this:

The injury in fact requirement prevents the federal courts from becoming a “vehicle for the vindication of the value interests of concerned bystanders.” An Article III court is not a legislative assembly, a town square, or a faculty lounge.

And we thought liberal groups supported widespread access to the Courts.

Do advocates of drug safety and the public interest agree with this:

Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no direct monetary injuries from FDA’s actions relaxing regulation of mifepristone. Nor do they suffer injuries to their property, or to the value of their property, from FDA’s actions. Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone

Getting back on topic.

I’ll make another prediction: The Supreme Court will reverse the Chevron doctrine – that they could have used the mifepristone FDA decision to do – in the upcoming cases that raise the Chevron deference issue (on a NMFS fishing monitoring fee case, a case out of Cape May NJ). And I’ll bet that Kavanaugh or Gorsuch will write it!

In doing research on mifepristone just now, I learned that Dr. Sidney Wolfe (no relation, but a longtime hero of mine, a Naderite, and with Public Citizen) died in January.

Reading his Obit, there’s an inventory of a mountain of work he did on FDA regulatory and scientific failures, see:

Sid invented a new approach of “research-based advocacy” to get dangerous drugs and devices off the market, win new protections for worker health and safety, address doctor misconduct, challenge the Food and Drug Administration (FDA) to do its job, and hold pharmaceutical companies accountable.

Dr. Wolfe’s major accomplishments touted include:

  • Testified before hundreds of FDA advisory committees urging against approval of dangerous drugs and devices, and for limited use or strong warning labels of others, with substantial influence over countless decisions and helping prevent many dangerous products from ever making it to market.
  • Documented weakening standards at the FDA following passage of the first Prescription Drug User Fee Act, which made drug companies a major revenue source for FDA.
  • Won earlier public access to safety and efficacy information for products being considered for approval by the FDA, enabling more effective advocacy by consumer advocates.

In direct contradiction of the latter achievements of Dr. Wolfe, the Court dismissed public information concerns about risk:

the medical associations suggest that FDA is not properly collecting and disseminating information about mifepristone, which the associations say in turn makes it more difficult for them to inform the public about safety risks.

Would Dr. Wolfe support a regulation that only required reporting of adverse impacts limited to death?(Supreme Court):

(FDA) changed prescribers’ adverse event reporting obligations to require prescribers to report only fatalities

But, rejecting Dr. Wolfe’s legacy of challenges to FDA science and regulatory integrity, on mifepristone, Public Citizen filed an Amicus in support of FDA.

The basis for that support was as follows:

“In the court of appeals, Public Citizen filed an amicus brief on appeal in support of reversing the district court’s ruling. The brief explains that the FDA approves a new drug or modifies restrictions on an existing drug’s use only after a team of doctors, chemists, microbiologists, statisticians, pharmacologists, and other experts has conducted an in-depth analysis of a vast body of technical evidence of the drug’s safety and efficacy, including peer-reviewed scientific literature and the results of clinical trials conducted with oversight from disinterested institutional review boards. Given the rigor and reliability of this process, the FDA’s decision to deny a citizen petition that—like the one in this case—neither identifies a meaningful procedural flaw in the FDA’s process nor relies on new evidence showing lack of safety or effectiveness should rarely be overturned. […]

In the Supreme Court, we filed an amicus brief on behalf of Public Citizen and Center for Science in the Public Interest, again focusing on the rigor of the drug approval process, the high level of expertise that goes into FDA decisions about approval and regulation of specific drugs,”

Wow. “the rigor of the drug approval process, the high level of expertise that goes into FDA decisions”

Over Dr. Wolfe’s dead body.

Remarkable hypocrisy, no?

We’ll followup when the Chevron deference opinion is handed down in the coming days.

[End Note: Justice Kavanaugh clearly understood the implications. He tipped his hand – I guess he could not help himself and sent a message of support to protect Big Pharma with this:

And in the FDA drug-approval context, virtually all drugs come with complications, risks, and side effects. Some drugs increase the risk of heart attack, some may cause cancer, some may cause birth defects, and some heighten the possibility of stroke. Approval of a new drug may therefore yield more visits to doctors to treat complications or side effects. So the plaintiffs’ loose approach to causation would also essentially allow any doctor or healthcare provider to challenge any FDA decision approving a new drug.

Kavanaugh even went so far as to suggest that no one might have standing to sue FDA:

Finally, it has been suggested that the plaintiffs here must have standing because if these plaintiffs do not have standing, then it may be that no one would have standing to challenge FDA’s 2016 and 2021 actions. … even if no one would have standing, this Court has long rejected that kind of “if not us, who?” argument as a basis for standing. … The “assumption” that if these plaintiffs lack “standing to sue, no one would have standing, is not a reason to find standing.”

And Kavanaugh seemed to take pleasure in and went out of his way to remind everyone of the fundamentally anti-democratic role of the courts:

The Framers of the Constitution did not “set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts.” Richardson, 418 U. S., at 179; see Texas, 599 U. S., at 685.

[Update – 6/17/24 – An important fact in this case that has not been reported by the media is that the doctors filed a petition for rulemaking to FDA on mifepristone. FDA failed to respond to the petition for almost 20 years.  That delay frustrated judicial review of FDA regulatory decisions.

I mention this now because I just read a NY Times story about a petition for rulemaking to FEMA by environmental and labor groups, see:

The petitioners plan to litigate the matter if FEMA again denies the request.

Could you imagine FEMA failing to respond for 20 years, like FDA did?

And do you think the press would not report that failure, as they have failed to report the FDA failure?

And that environmental groups would support FEMA despite that failure?

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Start Organizing A Real Resistance Now!

Lame Liberals Hopelessly Out Of Touch

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(Caption: I took this photo about 10 years ago in front of the NJ DEP building in Trenton, NJ. I think it was at a anti-fracking protest.)

The NY Times ran a page one lead story (Sunday edition) today on the formation of a US “Resistance” to what is increasingly looking like a Trump re-election, see:

(parenthetically, they really tap danced around the collapse of the Biden Presidency and failed to even mention real resistance movement formation, like the campus encampments and organizing for protests at the Democrats’ August convention in Chicago. Instead, we get this:

Activist groups that spent the four years of Mr. Trump’s presidency organizing mass protests and pursuing legal challenges, ultimately helping channel that energy into persuading voters to oust him from power in 2020, are now realizing with great dread they may have to resist him all over again.)

Sadly, all the same old lame liberals could come up with was stockpiling abortion pills (seriously, no joke), gathering informal groups of Democratic Governors and Attorneys General, and “a new litigation wave”: drafting legal briefs (to a right wing Federalist Society and corporate captured federal court system).

What we need is formation of “popular front” politics and planning and organizing for massive mobilizations of street protests, encampments, and civil disobedience to shut it down and “Refuse Fascism”.

Does anyone see this kind of work being done?

Start the logistics planning and the slogans and flags and banners and songs and signs and fundraising NOW.

But do it off line and don’t use cell phones (the surveillance State is a Panopticon).

[End Note: And if you think I engage in hyperbole, consider that they are quietly seeking to reinstate the draft – check this out, which should be blaring page one headlines:

https://www.militarytimes.com/news/pentagon-congress/2024/05/23/lawmakers-move-to-automate-selective-service-registration-for-all-men/

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Bordentown Environmental Commission: “Noise Is A Serious Issue”

the author debates history (Bordentown, NJ - 4/27/13)

the author debates history (Bordentown, NJ – 4/27/13)

I got an email today titled  “Noise is a serious issue” from the Bordentown City Environmental Commission announcing an upcoming presentation: “The Rising Costs of Noise Pollution”

It brought back fond memories (photo essay) of when I lived there – including the disaster that occurred when I tried to get enforcement of an egregious noise violation.

Perversely, I ended up charged by police for “interfering in a police investigation” (the charge was later dropped by the local prosecutor).

The prosecutor had no choice, because I found that the flawed local noise ordinance was not enforceable and that it has been invalidated by the NJ Supreme Court. I wrote:

Bordentown Police lack training and equipment and funding to meet state standards and have not sought delegation. And the NJ Supreme Court had invalidated the local ordinance I was threatened with violating.

I wrote about the ordeal in this post:

I reached  out to the Environmental Commission to ask if the flaws I identified have been remedied over the last 9 years. I doubt it.

I’m not holding my breath for a reply. We’ll let you know.

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NJ LCV Op-Ed On Liberty State Park Is Disgusting Hypocrisy

NJ LCV Led The Campaign That Took Over $250 Million Away From State Parks

Potosnak Steals The Work Of Sam Pesin, A Legendary Leader In Protecting The Park

Ed Potosnak is the guy in the pink tie

Ed Potosnak is the guy in the pink tie

NJ Spotlight published an Op-Ed today by Ed Potosnak of NJ LCV in support of DEP’s proposed Liberty State Park Plan, see:

Potosnak is perhaps Gov. Murphy’s and DEP Commissioner LaTourette’s lead cheerleader, see:

Potosnak not only has done very little of the real grassroots work of protecting Liberty State Park – which has been done for decades by Sam Pesin of Friends of LSP – he led the Statewide campaign that diverted over $250 MILLION from State Parks maintenance, leading to the current $720 MILLION unfunded deficit in State Parks maintenance.

Potosnak has done more harm to State Parks than anyone.

I was so disgusted I fired off this note to NJ Spotlight and DEP Commissioner LaTourette:

———- Original Message ———-

From: Bill WOLFE <b>

To: “ferencem@njspotlightnews.org” <ferencem@njspotlightnews.org>, “jonhurdle@gmail.com” <jonhurdle@gmail.com>, “ed.potosnak@njlcv.org” <ed.potosnak@njlcv.org>

Cc: Sam Pesin <pesinliberty@earthlink.net>, “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “wparry@ap.org” <wparry@ap.org>, “tmoran@starledger.com” <tmoran@starledger.com>

Date: 06/06/2024 8:59 AM EDT

Subject: Potosnak Op-Ed LSP

Dear NJ Spotlight:

Your Op-Ed on LSP left a lot out, including the fact that the author led a statewide campaign that stole previously constitutionally dedicated Corporate Business Tax funds – specifically $32 million per year to State Parks maintenance – and reprogrammed that money for other purposes. (other CBT proceeds dedicated to DEP water resource and toxic waste cleanup CBT funds were stripped as well).

At the time (2014), there was a $400 million backlog in State Parks maintenance projects. That deficit is now $720 million and it is unfunded.

The head of the NJ State Parks system at the time wrote:

“Mark Texel, head of the New Jersey Division of Parks and Forestry, called it a “massive blow” and said in a Facebook post soon after the vote that it was “the darkest day I have faced in my professional career.”

No need to take my word for it, read the Bergen Record story:

https://www.northjersey.com/story/news/environment/2017/06/28/archive-budget-cuts-doom-state-parks-disrepair/400817001/

It is the height of hypocrisy for this author to now pretend to be some kind of leader on State Parks.

And he usurped the real leadership of a true hero, Sam Pesin, who has led campaigns to protect LSP for over 40 years.

Do better.

Bill Wolfe

ps – if you want all the details, read this piece:

  • An Open Letter To Gov. Murphy’s Environmental Lapdogs

http://www.wolfenotes.com/2024/05/an-open-letter-to-gov-murphys-environmental-lapdogs/

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