WolfeNotes.com

DEP: “The state doesn’t write rules to govern itself.”

I just was given a trove of emails on the deliberations of Senator Smith’s failed “Forestry Task Force”. That Task Force deliberated for over a year and issued legislative recommendations over a year ago.

But the controversial forestry and climate issues and much needed reforms at DEP have fallen off the radar screen and the controversial recommendations of that Task Force have been flushed down Orwell’s Memory Hole.

Worse, completely ignoring his own Task Force recommendations, Senator Smith reintroduced exactly the same flawed forestry bill he sponsored and failed to pass for over a decade (see: S2424)

So that Task Force not only got Memory Holed and disrespected by Smith, they wasted over a year and thousands of hours of people’s time and energy for absolutely nothing.

Given this fiasco, I felt obligated to review the emails and conduct an autopsy of the rotting corpse.

It didn’t take much time to confirm the exact criticisms we made at the outset and throughout the Task Force process.

But I was stunned by the arrogance, unethical transactions, cozy relationships, and dangerous ignorance revealed in the emails.

Many emails revealed a stunning arrogance, openly stating the need to “educate” and “inform” people who had all sorts of misunderstandings and false views about forests.

The gross ignorance included this gem from DEP Assistant Commissioner John Cecil:

“The state doesn’t write rules to govern itself.”

An Assistant Commissioner at DEP – with decision making and policy making powers over the management of State lands and natural resources – actually wrote that sentence.

Before I even finished reading the emails, I felt compelled to fire off this letter to Cecil to correct the record:

——— Original Message ———-

From: Bill WOLFE <b>

To: “john.cecil@dep.nj.gov” <john.cecil@dep.nj.gov>, “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “Sean.Moriarty@dep.nj.gov” <Sean.Moriarty@dep.nj.gov>

Cc: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, “senmckeon@njleg.org” <senmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>, “Keys, Mary Ann [ETHICS]” <Maryann.Keys@ethics.nj.gov>

Date: 03/30/2024 10:15 AM EDT

Subject: DEP compliance with regulations

Dear Assistant Commissioner Cecil  – I am writing to clarify what appears to be a troubling false understanding of how environmental and administrative laws apply to DEP practices in general, and more specifically regarding the management of public lands.

A colleague just provided several DEP OPRA response documents regarding the deliberations of Senator Smith’s Forestry Task Force, so I felt obligated to review them and conduct a sort of autopsy.

I came across emails you wrote in response to a document submitted to the Task Force by Thonet Assc.’s In those emails, you make some very troubling claims and urge that this Thonet document not be distributed as it might “confuse individuals regarding the interpretation of existing statutes“ because “The state doesn’t write rules to govern itself.”

In a related email, you wrote:

“The internal processes I referred to are Land Management Review and the 14-step process. They are not established by rules, but then internal operations of agencies don’t go through the rule making process.”

Both these statements contradict laws and regulations and reveal a dangerous ignorance and misunderstanding of fundamentals that I hope are not shared by Commissioner LaTourette (a lawyer) and other DEP managers and staff.

By way of this letter, I am requesting that Commissioner LaTourette take action to assure compliance with applicable laws.

When engaged in statutorily regulated activity, the State (and DEP) are not exempt from State regulatory requirements, thus the State does in fact “write rules to govern itself“.

When implementing programs that have a substantive impact on environmental conditions, natural resources, or related public rights and interests, the DEP is bound by the procedural requirements of the NJ Administrative Procedure Act, even when they comprise what you describe as “internal operations”.

With respect to the general issue of DEP regulations and DEP internal operations, which you seem to believe are not implemented via regulations, I call your attention to the following promulgated regulations that govern DEP operations:

• NJAC 7: 1 – Department Operations
• NJAC 7:1B – Waiver of Department Rules
• NJAC 7:1D – General Practice And Procedure

https://dep.nj.gov/rules/current-rules-and-regulations/

With respect to the “14 step process” for developing forest management plans, please be advised that because that process impacts substantive public rights and material environmental conditions and natural resources, it is bound by the procedural requirements of the NJ APA.

Of course, in addition to forest management plans, all other DEP planning programs are subject to the procedural requirements of the APA, as well as specific additional statutory authorization and compliance requirements.

Equally, the DEP serves as Trustee of the State’s natural resources, which are owned by the people. DEP does not have carte blanche in managing those resources and has an obligation to protect and guarantee the public’s rights in participating in the management of those natural resources. Those public rights and interests are not protected by the informal “14 step process”.

Finally, the OPRA documents reveal multiple private communications between yourself and Eileen Murphy, former DEP Director of Science and Research and more recently Legislative lobbyist for NJ Audubon as Director of Government Affairs. These communications involved Sparta Mt., State lands management, and legislation. Under ELEC regulations, these communications constitute regulated efforts to “influence government processes”.

Before joining the Department, you were employed by NJ Audubon in a management capacity and were directly involved in the Sparta Mt. forest management planning process and statewide State lands management issues. You currently serve in a DEP management and policymaking position over those same issues. I am unaware of any recusal documents you may have filed and other DEP Ethics Officer imposed restrictions.

Accordingly, those communications create an appearance of a conflict of interest and potential actual conflicts. Please be advised that I’ve referred the matter to the State Ethics Commission for investigation and appropriate enforcement.

I look forward to written replies from yourself and Commissioner LaTourette to clarify and correct the errors outlined above.

Bill Wolfe

c: Legislators

environmental leaders in Trenton

The Bridge Did Not “Collapse” – It Was Knocked Down

Lack Of Ship And Harbor Safety Regulations And Strict Liability Standards Led To Crash

Renown public intellectual and Professor Noam Chomsky famously borrowed the phrase “engineering consent” from Walter Lippman, who stole it from Edward Bernays (“the father of public relations” – naming a new term and professional field to replace “propaganda”, which had been discredited by the Germans).

Speaking of engineering consent, the coverage of the Baltimore cargo ship crash presents a perfect case study of literally engineering consent on engineering solutions, a kind of negative variant of Naomi Klein’s “disaster capitalism” (in this case, the disaster is being used to cover up real solutions instead of providing a sham rationale for corporate “reforms” Klein writes about).

One would think that after a series of recent catastrophes – from multiple deadly plane crashes (Boeing), toxic train derailments, and oil and gas well blowouts that were linked to corporate malfeasance and lack of adequate regulatory oversight and strict regulatory standards – that the media would be skeptical of another one involving a cargo ship. Especially when the accident is fully visible on video tape.

One would be wrong.

The news headlines read that the bridge “collapsed”, when in fact it was knocked down.

The “collapse” metaphor attempts to shoehorn a shipping safety issue into an infrastructure investment issue.

As issue framing and propaganda slogan, this does huge things:

1) it blames government and allocates the costs of both the bridge rebuild and future prevention strategies onto the public taxpayer – to wit, Biden immediately pledged full federal funding for bridge replacement; and

2) it lets the entire global logistics system off the hook from multi-billon dollar costs of paying for the bridge replacement and new prevention measures, regulatory shipping and harbor safety mandates like tug boat escorts and dual redundant power and navigation systems on these huge cargo ships, and repeal of liability laws that provide huge subsidies and undermine safety and corporate accountability.

3) it gives the mainstream press permission to avoid real investigative journalism and controversial critical reporting to hold corporate power and government failure accountable.

For example, the Los Angeles – Long Beach California Harbor Safety Plan analyzed exactly the failure that happened in Baltimore (loss of power and navigation) and managed these risks with tug escorts, see:

• History of HSC Tug Escort Guideline And Regulation Development

“The Committee discussed the issue of tug escorts outside the federal breakwater during the 1994- 95 Plan review. Under the existing scheme, all tugs were meeting laden tankers just inside the breakwater entrances. Analysis of marine casualties for vessels operating in the LA/LB port area revealed that an average of 1 in 100 commercial vessels (1 per week) sustained some type of steering or propulsion failure during the inbound or outbound transit. The mechanical problem rate and the ever-decreasing amount of navigable water inside the breakwaters threaten safe transit of vessels through the “relatively” confined breakwater entrances. If a significant allision or collision causes a major oil or chemical release, the environmental and economic costs could be devastating.

The Tug Escort Subcommittee (TES) comprehensively assessed the risk associated with inbound laden tankers approaching and moving through LA/LB breakwater openings. The subcommittee found that the risk of steering failure or power loss justified implementing a tug escort scheme outside the breakwater. In order to develop an appropriate, practical and technically sound scheme, tug capabilities must match tank vessel size, speed and type of casualty. At the time, the San Francisco Glosten Study for Single Failures, (augmenting the less-relevant Dual Failure Study) was nearly complete, and TES felt the study would provide helpful technical insights. The Committee decided to review the Glosten Study results before finalizing a tug escort scheme outside the breakwater. In the interim, the Committees approved the following for the 1995 Harbor Safety Plan:

But instead of reporting on this Harbor Safety Plan (a formal regulatory document), The NY Times dug up some obscure 1980 claim that said the bridge could not survive a cargo ship head on crash ( high school physics – Force = Mass x Acceleration – makes that obvious. No bridge could survive that kind of head on crash).

By ignoring the LA/LB harbor Safety plan issues and reporting only the bridge design, engineering, and maintenance issues, The NY Times is engineering consent.

As an illustration, NPR just interviewed an academic structural engineer. The entire focus was on bridge engineering, possible engineering causes of collapse, and engineered devices to deflect ships away from crashing into bridges.

When the final question was perfunctorily asked: how can we prevent future vessel strikes?, the structural engineer proposed more engineering and said nothing about real ship and harbor safety plans and regulations and liability reforms and corporate accountability.

Three years from now when the NTSB issues its investigation Report, no one will be paying attention.

And the shipping industry and ports will continue on with the deadly status quo.

Cornell Takes On Denver In Regional Final On Saturday

Rematch With Denver Of Cornell Win Last Year

Cornell Big Red Hockey advanced to the NCAA Regional Finals with a dominating 3-1 win over 6th nationally ranked Maine in the Eastern Regional Finals tonight.

The game was delayed for 90 minutes by the double overtime preceding game, where Denver beat U-Mass 2-1 in double overtime (this forced an unplanned beer run!).

Maine scored first, on what I saw as two errors by the Cornell defense – first when a defenseman took a wide angled shot on goal (instead of just dumping the puck in the corner) that went wide and his partner pinched to collect the carom off the boards and got beaten to the puck, leading to a goal scoring rush by Maine. Highly unusual for Cornell defense to make those kind of basic errors, never mind two on the same play. Cornell was lucky to score and escape that first period with a tie, 1-1.

The second period was controlled by Maine, who seemed the quicker and more organized team, but they didn’t score.

But the third period was all Cornell, as they played their classic defense (keeping pucks to perimeter and blocking shots) and advanced swift counter- offensive rushes to score 2 goals to seal the 3-1 win.

Cornell was the larger and stronger team and dominated the physical game and the boards and corners and front of the net.

The forwards showed an outstanding forecheck and quick back check that made it difficult for Maine to sustain any momentum or flow or puck control.

Cornell plays Denver on Saturday for the regional Championship and a path to the Frozen Four in Minneapolis. I was not impressed with Denver’s OT win over U-Mass, and I loathe the style they play (e.g cycling at the point by defenseman Devine. That’s not hockey, it’s more like basketball or lacrosse).

Cornell goaltender Ian Shane was spectacular again – showing why he leads the Country in goals against.

Neoliberal Globalization Disaster

BALTIMORE, MARYLAND – MARCH 26: In an aerial view, the cargo ship Dali sits in the water after running into and collapsing the Francis Scott Key Bridge on March 26, 2024 in Baltimore, Maryland. (Photo by Tasos Katopodis/Getty Images)

Playwright Arthur Miller’s 1955 play “A View From The Bridge” is metaphor:

In his own brilliant way, Miller touched upon almost every basic emotion  – love, desire, obsession, jealousy, and betrayal with the Italian characters reaching for the elusive American Dream.

Miller’s play was the origin of one of my favorite movies, the classic On The Waterfront:

The stories of the making of On the Waterfront are legion. That the film was originally a scenario written by Arthur Miller, who fell out with director Elia Kazan over Kazan’s political choices, and whose own research on waterfront crime would later see light as the distinguished play A View From the Bridge.

[Clarification – a friendly reader rightly takes me to task for obscuring and burying the real story of the conflict between Miller and Kazan (“fell out”) – a mistake I should never have made (with a lazy Google clipped quote, not my own words), especially given that I’m now reading the classic on the McCarthy period Ellen Schrecker’s “Many Are The Crimes”. My friend wrote:

On The Water Front was Elia Kazan answer to Arthur Millers The Crucible – It was a justification for the McCarthy period and for Kazans betrayal of friends and rationalization for his naming name. He put numerous friends on the black list and unemployed .The real irony it was the Communists that battled the mob on the water front in the 1940’s and kicked them off – More Ironic blacklisting of Communist Union members let mob back in control of the docks

The immigrant working class experience in search of the American Dream is something we’ll know nothing about for the six working class immigrants killed while working on the Francis Scott Key bridge that was knocked down by a massive container cargo ship in the Baltimore Harbor.

That accident creates a comprehensive view from the bridge of the disaster of Neoliberal global finance capitalism.

The 6 workers killed on that bridge were immigrants from central America, working the night shift on a dangerous low paying nowhere job – filling pot holes.

The gigantic cargo ship that killed them – and the international manufacturing and logistics supply chain it serves – is the perfect symbol of an out of control global trade regime that has devastated the US working class and the American Dream: from deindustrialization, to low wage Walmart jobs, to Wall Street profits, to a consumption and growth driven climate catastrophe.

The failure to mandate basic port safety requirements – like tug boat escorts and redundant power (propulsion) and navigation systems – on these behemoth “economy of scale” cargo ships – is another egregious example of Neoliberal hostility to government and regulation, in favor of free trade and open markets. Some academics call this “regulatory capture”, but the reality is far worse.

The existence of caps on liability for the maritime shipping industry – just like massive corporate subsidies under the Price Anderson Act for the nuclear industry – shows how corporate interests own government.

President Biden’s pledge to provide full federal funding for bridge replacement – with no mention of the US Justice Department seeking full cost recovery for all damages – is just more evidence of another multi-billion corporate bailout.

Had this been an oil tanker spill, the focus would have been on the cost of pollution damage and government lawsuits to recover the damages. The fact that there is literally no mention of that in news coverage speaks volumes about the corporate lapdog role of the mainstream media. Global trade is immune from scrutiny.

In the wake of the Boeing plane crashes, there really could not be a greater sequence of events that more perfectly illustrates all the corrupt elements of Neoliberal global finance capitalism – what Biden perversely praises as “the rules based order”.

[End Note: I wonder who the local Baltimore Port political broker is, like this one from NY Port:

• The Power Broker: How Christie’s Port Point Man Plays All Sides of Transit Deals

Bill Wolfe, the head of NJ-PEER, an environmental group that has monitored NJ Transit, is critical of the deals for lacking “competitive bidding, transparency, and robust ethical restrictions, which are particularly important given the many real estate and development interests among Wolff & Samson clients.

Update: 3/28/24 – just read The NY Times coverage. The Times very briefly mentions the tug boat escort:

At 1:25 a.m., after the two tugboats detached and turned back, the Dali had accelerated to about 10 miles per hour as it approached the Key Bridge.

But the Times fails to ask the obvious questions, which I submitted as read comments:

Why did the tug boat escort detach when and where they did?

Why don’t Coast Guard and/or Harbor Safety Plan MANDATE tug escorts past all critical infrastructure????

The NY Times story also misleads readers with the Biden Sect. or Transportation Buttigieg quote that those responsible will be held accountable.

I listened to the press conference and he said that those “responsible AND LIABLE” will be held accountable. He knows liability is limited.

Update #2 – as expected, The NY Times did not print the above reader comments that were critical of their reporting.

I just posted another, which, of course, they also will not post:

NY Times reporters should read the LA – Long Beach Port Safety Plan and findings regarding risks and tug escorts. Apparently, Baltimore Harbor Safety Plan (which I was unable to find online) and the US Coast regulations do not mandate tug escorts outbound. Then ask the Coast Guard and NTSB to respond and explain.

Why Are There No Coast Guard Rules That Mandate Massive Cargo Ships Operate Under Tug Control in Ports?

The Bridge Did Not “Collapse” –  It Was Knocked Down

I know nothing about shipping or Coast Guard vessel safety.

But my first reaction to learning of the Baltimore Harbor crash that took out the Francis Scott Key bridge serving I-695 was related to safety regulation, despite attempts by the Biden White House to seed diversionary “terrorism” stories (with the typical denials of any evidence of terrorism “at this time” – kind of like “When did you stop beating your wife” tactics).

I did some initial research and came across a commercial shipping expert, who posted video and analysis of the accident that NY Times and mainstream media have not. watch it here.

In the analysis, he noted that the ship had lost power – twice – just prior to the crash and may have lost propulsion and rudder control.

The vessel is in the outbound channel, but it is not operating under tug boat control.

She would not have tugs on her – as she would have had tugs on to take her off the docks … but not when she was underway and had propulsion.

So, my question is: why don’t Coast Guard regulations mandate that cargo ships operate under tug control until fully and safely out of port?

These are massively large and difficult vessels to navigate, especially in tight situations like under bridges and in ports. With such catastrophic accidents possible, it seems like common sense to mandate that safety requirement.

That question must be examined – and not buried in the investigation or obfuscated with all sorts of diversions like terror threats – but by media right now.

[Update: I also read that there is a Liability limitation law that limits liability to the value of the cargo ship. This accident will costs many billions of dollars in damages, so we have another huge corporate bailout on our hands.