WolfeNotes.com

[Update: There were about 30 empty seats in the back and there weren’t many builder types at the NJBIA event. Chris Christie had a NJ Builders Assc. event the same day. I wonder what Christie promised the Builders? Were those empty seats builders? Or did the entire corporate crowd just migrate from the NJBIA breakfast to the NJBA luncheon?]

NJ Business and Industry leaders met behind closed doors today at posh Forsgate Country Club to press for more concessions on key environmental regulations to promote economic development.

The NJ BIA event, dubbed “Meet the Decision Makers” featured a panel discussion with DEP Commissioner Mark Mauriello, Senate Environment Committee Chairman Bob Smith (D-Middlesex), Assembly Environment Committee Chairman John McKeon (D-Essex), and Senator Kip Bateman (R-Somerset).

This kind of event – just weeks before a Gubernatorial election – is designed to send a clear political message to DEP to back off enforcement and to continue to weaken environmental regulations to promote economic development. It is another example of how powerful lobbyists for special interests are granted preferential high level access and are able to work behind the scenes to influence policy, gut environmental protections, and politicize science.

At a time when DEP budgets are slashed, work related travel eliminated, and the undue political influence of special interests is the focus of ethics and corruption investigations across the state, this event sends exactly the wrong message.

A September 28, 2009 email by DEP legislative aid John Hazen – who reports to Mauriello – reveals that Senator Smith demanded specific DEP replies to a series of questions to advance the NJBIA agenda.

Hazen solicited responses from DEP staffers to the following questions posed by NJBIA and conveyed to DEP by Smith:

John Hazen 9/28/2009 11:50 AM >>>

On October 9th NJBIA will be hosting Commissioner Mark Mauriello, Senator Bob Smith, Assemblyman John Mckeon And Senator Kip Bateman For A “Meet The Decision Makers Event”.

In preparation, Senator Smith’s office has contacted me to see if we can provide him with some background/briefing/info to answer the following questions. Can you please review the following and get back to me with a brief writeup on your respective topics? Thanks.

1. What are your goals going forward, not only in the Lame Duck Session, but beyond?

2. What is the status of the Licensed Site Remediation Professional program?  How many temporary licenses have been issued?  What is the status of the board?

3. What is the status of the Water Quality Management Planning process? Where have you seen problems?  How are you dealing with the conflicts arising from the sewer service area maps the department is using?

4. What is the status of the Science Advisory Board?  What are the first few issues you see them tackling?

5. If the bond act fails, do you see the need for an immediate stable source of funding for open space and farmland preservation?  If the bond act passes are you still contemplating a water tax?

6. As companies do a better job at lowering emissions, what are the challenges you see in funding the Title V program? Is it fair to raise fees on companies that are taking steps to lower emissions and improve the overall air quality of the State?

7. What is the status of the State Water Supply Master Plan?

I managed to crash the event and below report the following discussion that ensued. This can give you a sense of the business community’s concerns.

Overall, I was disappointed but not surprised by the lack of vision or leadership on the environment.

I was appalled by how willing both DEP Commissioner Mauriello and legislators were to accommodate business demands.

I was shocked by Senator Smith’s remarks about stealing property, property rights, and an all out attack on new DEP Water Quality Management Planning rules. And I was embarrassed by the juvenile bashing and personal attacks on colleagues Dave Pringle and Jeff Tittel.

Following short introductory statements by the panelists, a question (Q) and answer (A) session took Place. Here is a summary.

1. Licensed Site Professionals (LSP) (this new program got the most discussion. NJBIA distributed a fact sheet to members. Here are EPA audits and our take on SRP and LSP)

What is the status? How many license applications?

A: (Mauriello) Irene Kropp has done a wonderful job in developing an entire new program. Nothing being done in the dark behind closed doors – open and transparent process, listening to stakeholders and advisory groups. Looking forward to looking the skeptics in the eye when the program is working  About 90 applications submitted, 35 approved. Seeking guidance from the Governor’s Office on LSP Board appointments. Program takes effect Nov. 3, 2009 D Day. Good news for the environment and really good news for the regulated community.

2. What is the status of proposed rules to delist Cooper’s Hawk as a threatened species? A $40 million project is being held up. Additional projects worth hundreds of millions of dollars are being held up. Economy can’t afford that. DEP drafted rules years ago, but has not proposed. When will DEP propose these rules?

A: (Maurielo) I am familiar with your project. Thanks for the fax describing it. DEP draft rules undergoing legal review. Very close to proposal “expect proposal in next few months. In the meantime, what can the DEP do to expedite your project? Perhaps you should apply for other permits – we will issue.

3. What is status of Science Advisory Board (SAB)? (see this for background on SAB)

A: (Mauriello) The SAB was modeled on EPA SAB. Don’t know if you read blogs [Note: clearly a reference to this post], but our critics are wrong “ lots of scientific talent in NJ. I’ve made it clear that SAB will not review standards or drive policy.  160 scientists nominated or self nominated. Despite what blogs say, I had only my first meeting last week with DEP scientists to discuss SAB. Haven’t reviewed names of candidates. (Despite what the blogs say). Looking for diversity and balance.”

4. What is the status of the Report mandated by the Global Warming Response Act and development of regulations to implement the Global Warming Response Act (GWRA)?

A: (Mauriello) GWRA a bold law, but real work needs to be done. DEP implementing RGGI (20% portion of $60 million revenue) on forest and marsh sequestration. 300 application for funding under review. Staff are reviewing comments on the draft report. We just proposed new CAFRA rules to promote solar and wind. Final Report upcoming. No real regulatory focus, more incentives.

5. What is the status of the Water Supply Master Plan? Why doesn’t NJ go back to US Supreme Court on DRBC allocations, which are unfair to NJ?

A: (misunderstood the question, spent 5 minutes outlining USACOE flood data and reservoir storage; flood hazard regulations; and stream upgrades).

Q: Followup: You misunderstood my question “ I am concerned about WSMP science and  models that determine safe yields and 1983 DRBC agreement. Current plan uses 25 year old data.

(there was a later follow-up question on WSMP)

A: (Mauriello) Draft final WSM plan is close. Delayed because DEP waited for new USGS data/model. Plan will identify new population projection growth based surplus/deficit areas, as well as what we need to do to transfer water to deficit areas. “We don’t tell people how to manage water“ purveyors have lots of expertise. We try to provide tools for management.

6. Would you support an extension of the Permit Extension Act, which expires in June 2010? Is such a bill likely to move in lame duck?

A: Smith: Yes

McKeon: Yes

Bateman: Yes

7. The Clean Water Act’s Total Maximum Daily Load (TMDL) program lacks a sound scientific basis. DEP just revised the basis for the phosphorus standard from a numeric to a narrative basis. Why? How will this change impact TMDL’s already finished and under development?

A: (Mauriello – did not answer the questions). I agree that TMDL is inefficient and ineffective basis for setting permit discharge limits.  I am looking at the entire TMDL program. DEP spends a lot of time and money developing TMDLs, and then litigating them in court. DEP must then face administrative appeals of permits when the TMDLs are used and incorporated in discharge permits.  The TMDL program will be the first issue I charge the SAB to look into. I am sure that my science staff will hear about that in less than an hour (laughter).

8. What can DEP and legislators do to stop job loss and loss of production (e.g. recent Sunoco refinery closure)?

A: Smith – We shouldn’t be the problem

A: McKeon – that’s a complex question involving taxes and labor and the needs of a densely populated state of 9 million people. It will always be more expensive to live in NJ. We can work to expedite permits, but will not look the other way and compromise environmental protections which is short sighted and will poison the future of the state and make it an economic wasteland.

9. Solar panels are considered impervious surface which discourages installation. Why? We need guidance from DEP of new definition of impervious cover to stimulate solar on the ground.

A: (Mauriello) DEP doesn’t have statewide jurisdiction over IC – in CAFRA and Highlands yes. MLUL has inconsistent definitions too. Governor Corzine has directed me to make accommodations for renewable energy.

A: (Smith)  – you need a bill to define IC. I will be introducing a bill soon to do that.

10. How can DEP promote sequestration of carbon in forests on private lands?

A: (Smith) – support S713 Forest stewardship plans as opposed to Forest Management Plans

11. Politics

a) Endorsements – What’s up with environmental groups endorsements? None backed Governor. Can we expect more surprises from them? (lot’s of laughter and jokes about Jeff Tittel and Dave Pringle)

A: Smith: “Anyone here in love with Jeff Tittel, please stand up”

Live by the sword, be prepared to die by the sword

A: Bateman: Give Dave Pringle credit.

A: McKeon: DEP has been reasonable on regulations, which is why the environmental groups don’t support the governor. If Corzine wins, the groups that didn’t endorse will lose influence and credibility. This will harm the environment because environmental groups will be perceived as paper tigers unable to influence voters and the public. This makes it harder to pass pro-environmental legislation or DEP initiatives. A set back for the environment.

A; Smith – Disagree with Bateman. Tittel/Pringle opposed LSP.  Gov. did the right thing and took them on. There are 200+ environmental groups that disagree with Tittle/Pringle but can’t speak out due to 501C3 status. There are many other groups that support the Gov. but won’t speak out because they are afraid of Tittel/Pringle. 

b) Anti-business climate – what can be done? DEP has worked extremely well with EDA and Gerold Zarro in Gov. Office. What more can be done?

c) Water Quality Management Planning rules – ant-development, takings and property rights

Smith went off. Big problem with WQMP rules. DEP planning to designate areas as non-sewer service areas based on old flawed maps and without knowledge or consent of land owners. This will shut down development. Big problem for land owners, builders, developers. In designated NSSA, are dead meat. My biggest beef is that this steals property rights “ we did it in the Highlands. This is unfair to property owners. All these land owners whose land is about to be designated NSSA should be aware. Oh, we’re careful not to trigger a legal taking, but we come close and steal property rights. DEP maps and aerial photos are flawed. Site in my district whre a COAH project is designated NSSA. I support Sarlo bill to place 2 year moratorium on implementation of new WQMP rules. Provide notice to property owners and opportunity to challenge DEP designations. Sorry if this sounds anti-environmental but I’ve already stolen 500,000 acres in this state (Highlands?). Some NSSA lands broadly designated by mere possibility of T&E habitat. We’ve taken 60% of the land area of the state in Planning Areas 3,4, and 5. You can’t build anything new there. If you own property call you county planning board and find out about NSSA designation.

Mauriello pushed back effectively, acknowledged working to relax deadlines and be flexible, but new rules required because plans are so old and flawed, and don’t consider water supply, wetlands, and other environmental constraints that would prohibit the issuance of land use permits. Working on more notice to landowners. Working on maps – bog turtle habitat suitability improper in some places. TWA permits grandfathered. My goal is to pre-empt the need for the Sarlo legislative moratorium bill – DEP is making concessions. (we wrote about the Sarlo bill here)

d) Lame Duck Priorities – Smith:

Forest stewardship

ATV registration

Greenwood Lake Commission fee authorization

Restrictions on nitrogen fertilizers – Barnegat Bay eutrophication

Salwater fishing registration

Dam restoration

Next Session priorities – Smith

Focus on Barnegat Bay ecosystem (we wrote about Barnegat Bay here)

Energy bills – renewables

[Update: Star Ledger covers this story:  N.J. environment group claims DEP denial of records request violated state law ]

We recently warned of a Hostile Takeover of DEP Science – Industry Seeks to Stack Board with Cronies , the latest in an orchestrated  War on Science by politically powerful polluters and developers in NJ. The Star Ledger reported on that in a September 20, 2009 story: Scientists line up to join DEP’s controversial new advisory panel.

Since then, we received additional leaked DEP documents and emails which show that the NJ Chemistry Council (the trade group and lobbyist for NJ’s chemical industries) is seeking to have Dupont and Merck scientists appointed members of a controversial new DEP Science Advisory Board. Similar industry efforts to stack federal Science Advisory Boards during the Bush administration were repudiated by scientists. A Science magazine editorial “Advice without Dissent” hit the nail on the head:

The Bush administration has made some unwise recent moves that undermine the process by which scientists provide advice to the U.S. government. The applicable current law (the Federal Advisory Committee Act), which requires these advisory bodies to “. . . be fairly balanced in terms of the points of view represented and . . . not be inappropriately influenced by the appointing authority or by any special interest,” is more than empty boilerplate….

Instead of grappling with scientific ambiguity and shaping public policy using the best available evidence (the fundamental principle underlying public health and environmental regulation), we can now expect these committees to emphasize the uncertainties of health and environmental risks, supporting the administration’s antiregulatory views. And in those areas where there are deeply held conflicts in values, we can expect only silence. Regulatory paralysis appears to be the goal here, rather than the application of honest balanced science.

In fact, DEP Commissioner Mark Mauriello is meeting with the Chemistry Council this Thursday  to discus SAB appointments. Commissioner Mauriello, in contrast to federal law that mandates balance and prohibits inappropriate influence by special interests, has virtually unbounded discretion to appoint SAB members.

So, with some of the documents already in hand, I filed an OPRA request to obtain all of them. But in an attempt to keep this chemical industry campaign a covert war, DEP denied the OPRA request.

In response, today, PEER filed a lawsuit against DEP seeking all the documents. We are confident that we will prevail in this lawsuit and that the documents will disclose industry pressure to politicize science at DEP and protect polluters from DEP regulations.

This industry effort must be derailed. Formal industry control over DEP science would have profoundly detrimental impacts on the health of residents and the natural environment.

See below press release for details.

For Immediate Release: Monday, September 28, 2009

Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

Industry Moves to Take Over Jersey Eco-Science Board

DEP Sued to Force Release of Lobbying Messages for Industry-Backed Scientists 

Trenton  – Industry wants to pack a new state environmental Science Advisory Board with its own scientists, according to Public Employees for Environmental Responsibility (PEER) which today filed a lawsuit to obtain public records regarding the industry lobbing effort. Department of Environmental Protection (DEP) Commissioner Mark Mauriello is reportedly making final picks for the 12-member board this week after meeting with the Chemistry Industry Council this Thursday.

The suit challenges the denial by DEP of an Open Public Records Act (OPRA) request filed by PEER seeking public records related to industry nominees and political lobbying for the Science Advisory Board (SAB) appointments. The DEP broadly claimed that practically all the requested documents are exempt from OPRA on the grounds that the pending appointments will be treated like candidates for employment, and thus confidential. Board members, however, are not DEP employees, nor would they be paid.

“DEP cannot make public records secret on the basis of an analogy,” stated New Jersey PEER Director Bill Wolfe who filed the document request. “Industry has a huge stake in getting friendly scientists on the board that will make the final recommendation on public health regulation.”

In late 2008, former DEP Commissioner Lisa Jackson abolished the Division of Science and Research, based in part on a recommendation of her Permit Efficiency Task Force, chaired by Chris Daggett, now an independent candidate for Governor. The Science Advisory Board is supposed to substitute for the work formerly done by DEP scientists.

Thus far, more than 100 nominations have been submitted. Industry associations have put forward scientists from major manufacturers such as DuPont and Merck as well as from engineers and technical specialists from industry-oriented consultant firms. This Thursday, October 1^st, Commissioner Mauriello, who chooses the board members, will meet behind closed doors with the Chemistry Industry Council of New Jersey, the primary lobby group representing state-based manufacturers.

In recent months, DEP scientific studies have been the subject of intense industry lobbying pressure to amend or suppress, on public health topics ranging from the effects of chemicals, such as PFOAs made by DuPont, to cement dust blowing through Camden neighborhoods. The Administrative Order creating the SAB specifies a conflict of interest review of board nominees but it is not clear what specific rules will be applied, except that members are not supposed to act on matters in which they have a “financial or personal interest“ terms left undefined.

“It appears that industry will soon be providing the final edits on all scientific work done at DEP,” added Wolfe. “Without transparency in the selection process, there will always be the doubt that this board will more concerned with political science than environmental science.”

The OPRA lawsuit was filed today on behalf of PEER by Michael Pisauro of the Princeton-based firm of Frascella & Pisauro, LLC.

 ###

Read the PEER lawsuit

View DEP denial of record release under OPRA

Review the Science Advisory Board charter

Look at the ongoing war by industry against DEP science

Examine the tactics of DuPont

 

[Update below]

Unless you closely follow the technical discussion on the NJ Highlands email listserve, you probably don’t know that DEP abandoned a key regulatory tool to protect critical habitat of the State threatened species, Wood Turtle.

There were no press conferences, action alerts, sign on letters or other forms of protest by environmental groups. Yes, if one knew where to look, one could find some mention opposing this rollback by reading the fine print of written comments formally submitted to DEP on the rule proposal by a few conservation groups with biological expertise. But no major political or media opposition was mounted.

As a result, there was no press coverage to alert the public and no accountability for the DEP politicians who did this vile deed.

In fact, you might have  just the opposite impression, because the DEP rule proposal that abandoned protections for the wood turtle – and countless other species – was SUPPORTED by environmental groups. It received VERY FAVORABLE press coverage.

This occurred, despite a January 2007 warning letter signed by numerous groups, strongly urging DEP Commissioner NOT to make the regulatory change to current regulations that can be used to protect wood turtle habitat. Here is the intro – read the whole letter:

Dear Commissioner Jackson:

In a late December meeting attended by many of our groups, the Department outlined its plan for a new process to guide the designation of Category One waterways. The meeting afforded only a cursory overview of what would represent a very fundamental change to clean water protections in New Jersey, but did provide an outline of the narrow set of water quality indicators that might serve as the basis for deciding future C1 upgrades. We have serious objections to the proposed designation process and fear that its implementation would strip New Jersey of the ability to adequately protect and maintain its high quality waterways. If enacted, this method would reverse tremendous advances in clean water protection in the state, contradict the commitments made by Governor Corzine, and leave New Jersey without the ability to adequately protect and maintain many of its most deserving waterways.

Signed: Jeff Tittel, Sierra Club, NJEF, ANJEC, Environment NJ, et al

Say What? Here’s that sad tale:

According to DEP:

Wood turtles are semi-aquatic turtles preferring clear, well-oxygenated streams surrounded by a mosaic of woodlands, scrub-shrub/herbaceous wetlands, and successional meadows. In New Jersey, the wood turtle is commonly associated with water-quality sensitive fish such as native brook trout and brown trout.

While once ubiquitous throughout northern New Jersey, most of the viable wood turtle populations remain in rural portions of Sussex and Warren counties.

Degraded water quality, habitat fragmentation, road mortality, and predation are the primary factors behind its extirpation from developed portions of the State. Observational evidence from the Passaic River suggests that siltation of streams, as a result of storm water discharge and urbanization of the surrounding land, can lead to a decline in turtle populations. (p. 19-20)

In order to protect the wood turtle and its critical habitat – as well as habitat for numerous aquatic or aquatic dependent species – in 2002, DEP strengthened and greatly expanded water quality regulations – known as “Category One” (C1) waters – to implement the “antidegradation policy” mandated by the federal Clean Water Act. Federal law requires states to adopt antidegradation policies and implementation procedures.

Anti-degradation policy seeks to assure that exceptional high quality waters are not degraded by pollution. For the first time, using anti-degradation legal tools, DEP gave these exceptional waters real regulatory protections, by providing 300 foot wide stream buffers (on each side), where soil and vegetation may not be disturbed by major development.

Starting in early 2002, DEP began to classify C1 streams and rivers based upon “exceptional value” ecosystems. DEP also began designating streams and rivers that drained to reservoirs to protect water supply.

Previously, this C1 classification was limited to a few hundred stream miles that supported naturally reproducing trout populations.

Yet, even despite the C1 designation, historically, those streams were unprotected by DEP regulations.

The result of the new DEP C1 policy was a huge expansion of over 2,000 designated C1 stream miles and – at 75 acres of stream buffer per mile – thousands of acres of riparian land in new protected C1 stream corridors.  

These DEP regulatory moves were strongly opposed by the NJ Builders Association, pro-development industries, and property owners. Builders particularly opposed the new DEP policy of linking water quality and habitat, and using the “exceptional ecological significance” Clean Water Act policy tool to regulate development and land use to protect water quality.

The wood turtle became a poster child in this debate, because thousands of acres of land were classified as wood turtle critical habitat. Therefore, thousands of acres of such land located in stream corridors could be regulated and made off limits for development via DEP designation of C1 waters.

One key factor in determining “exceptional ecological significance”, was the presence of wood turtle or critical habitat. According to DEP’s new C1 designation methodology:

The stream’s ability to support water-dependent endangered and threatened species, such as bog turtle, wood turtle, long-tailed salamander and dwarf wedgemussel was a significant factor in determining whether a stream qualifies as a waterbody of “exceptional ecological significance”. (page 9) (link here)

Between 2002-2003, the following exceptional streams were designated C1 protected on the basis of the presence of wood turtles and/or critical habitat – each designation protected lands in stream buffers. These regulatory moves by DEP triggered major battles with the builders because they blocked large development projects:

• In November 18, 2002: Assiscunk Creek; Beaver Brook; Flat Brook; Sidney Brook;  South Branch Rockaway Creek; 
• In January 6, 2003: Paulins Kill; 
• In November 3, 2003: Harihokake Creek; Nishisakawick Creek; Pohatcong Creek; Wickecheoke Creek; Plum Brook;

(I really wish DEP would stop killing these links! Just restored- the links 4/13/16 to above 3 C1 proposals).

Under the new pro-economic development Corzine/Jackson DEP, the legal ability of DEP to designate C1 streams on the basis of wood turtle – and numerous other threatened and endangered species – was lost by DEP in a May 21, 2007 rule proposal where DEP revised the C1 designation methodology.

The revisions greatly narrowed DEP’s ability to designate C1 waters and eliminated wood turtle as a basis for doing so.

The Lisa Jackson DEP found that a new method was required as a result of “experience” – read the code for “due to strong oppostion by the powerful development community“:

Based upon the experience gained in the review and analysis of waterbodies for potential Category One designation, the Department is proposing to establish new definitions. These new definitions better define the data and criteria utilized to identify waterbodies that qualify for consideration for upgrade to Category One designation. These definitions are data driven and will better serve to identify waters that are truly exceptional. The Department is proposing amendments to the definition of “category one waters” and introducing new definitions for “Exceptional Ecological Significance”, “Exceptional Fisheries Resource(s)”, “Exceptional Water Supply Significance”, and “HUC 14”. (page 5) (link) 

The new DEP C1 designation method limited exceptional ecological value to a short list of specific species – if a species was not listed, it was not protected. The list did NOT include wood turtle.

Exceptional Ecological Significance – Endangered or Threatened Species (E&T) 

The Department is now proposing that a waterbody with the presence of suitable habitat verified by the Department to support Bog Turtle, Dwarf Wedgemussel, Brook Floater, Triangle Floater, Green Floater, Eastern Pondmussel, or Eastern Lampmussel, with a documented occurrence(s) of at least one of these species verified by the Department are eligible for consideration for Category One antidegradation designation upgrade. To qualify for consideration for Category One status as a waterbody of exceptional ecological significance, requires that the waterbody have suitable habitat verified by the Department to support on of these aquatic dependent E&T species and documented occurrence(s) verified by the Department. These species include several freshwater mussels and Bog Turtle. … (page 7)

For a detailed description of each species and its habitat see this link: 

 

For the wood turtle, the fight for riparian habitat protections is over – DEP unilaterally surrendered.

The only protections remaining are case by case, site specific  mitigation in individual land use permits – a formula for extirpation.

End of story.

[10/4/09 Update – Brian Murray of the Star Ledger picked up on the pine snake story today: Frustrated developers are hissing back at a snake

A colleague advised that the NJ Builders Association recently filed a petition for rulemaking urging DEP to delist pine snake and eliminate certain site specific regulatory protections for its habitat. 

This reminded me of the sorry tale of loss of DEP protections for the wood turtle – and countless other species.  Old news.  ~~~ end update]

 

If the White House can release visitors logs, why can’t the NJ Department of Environmental Protection release them?

According to CNN breaking news:

WASHINGTON (CNN) – President Obama plans to announce Friday that the White House will release its future visitor logs on a regular basis, two administration officials said.

The announcement follows a legal settlement with the group Citizens for Responsibility and Ethics in Washington (CREW), which had sued the administration for release of visitor logs, the group announced on its Web site.

Since taking office, the president has been criticized for refusing to release some of the logs, including those relating to health care and coal company executives.

The new policy will apply to visitor logs created after September 15  not to previous visitor logs, according to an administration statement outlining the policy that CREW posted on its Web site. The future logs will be released 90 to 120 days after the meetings, and there are some exceptions.”

Last year, NJ DEP Commissioner Lisa Jackson denied a legal petition to bring transparency to DEP by disclosing who senior DEP managers meet with. Ironically, after leaving NJ to become EPA Administrator, Jackson reversed her NJ position and agreed to post her daily calendar and those of senior EPA managers on the EPA website.

In the wake of recent corruption scandals involving access to and political influence on DEP, that petition  was refiled and is again before current DEP Commissioner Mark Mauriello.  How Mauriello handles that request will be a test of the Corzine administration’s alleged commitment to transparency, open government and ethics reform.

Will press hold the Governor accountable on this issue and ask him about Lisa Jackson’s previous denial?

Will good government reformer Independent Chris Daggett engage the issue in the campaign?

Will corruption buster Republican Chris Christie take a stand on transparency at DEP?

We’ll keep you posted.

[Update: The Union of Concerned Scientists has very similar reaction – read the UCS press release here]

 

First I will lay out the general contours of the issue, and then I will provide the explosive goods. The goods will perfectly illustrate the problem. So bear with me.

It is no secret that Senator Stephen Sweeney (D-Gloucester), Senate Democratic Majority Leader, is a powerful force in South Jersey politics, the Legislature, and the democratic party. Sweeney knows how to wield that power.

It also no secret that Brad Campbell, former DEP Commissioner and one of the brightest environmental lawyers around, is no stranger to how the DEP makes decisions. Campbell has access to and knows how to influence DEP.

What is a secret (to the public) and known among only a handful of insiders, is that Sweeney and Campbell have teamed up to pressure DEP to reverse a recent major pro-environmental decision (this link is only a teaser, read on).

Typically, when pro-environment DEP decisions have a major economic impact on a politically powerful interest, those interests work behind the scenes to pressure DEP managers to reverse the decision.  All too often, the DEP Commissioner caves in to the pressure and directly reverses the staff level decision. In other cases, the deal is not so obvious because the data, science and/or regulatory interpretations that formed the basis of the original decision are revised in a way to undermine the original decision (without leaving fingerprints of political intervention). These changes then force DEP to abandon the original decision and the result is that the the corporate interest prevails (some call this “Agency capture”).

Corporate interests and political DEP managers are enabled to do this under cover of secrecy. Deals are made behind closed doors. The public, the press, and environmental groups don’t even know good decisions were made by staff, never mind that they were reversed by high level managers due to political intervention. There is no transparency and accountability in the system. (Even without special political influence, DEP data show that over 95% of permits are approved by DEP. See latest DEP permit Report here.

The lobbyists, DEP managers and political appointees, and political dealmakers like things just fine this way.

Anti-environmental economic interests also benefit from a DEP staff that is intimidated and reluctant to blow the whistle, because DEP staff know that DEP managers retaliate and that whistleblower laws are weak. Few are willing to risk destroying their career and livelihood.

That’s why transparency at DEP is so important – and why we are working to enhance transparency at DEP.

That’s why whistleblower protections are so important – and why we are working to strengthen them.

That’s why ethical restrictions to limit political abuses are so important – and why we file ethics complaints and seek to strengthen ethics laws and their enforcement.

This is why we are fighting to stop the revolving door and influence peddling at DEP.

That’s why independent public science and scientific integrity are so important – and why we fight to defend them.

Well, every once in a while, this dynamic is reversed and the bright lights of media and public scrutiny make it very difficult if not impossible for the DEP Commissioner to cave in to political pressure.

I have a perfect example of how this all works:

In an August 20, 2009 letter to former DEP Commissioner Brad Campbell, DEP Assistant Commissioner Scott Brubaker made a scientific finding and determined that:

“[the Delaware Bay] is not appropriate for a large-scale wind turbine project due to “impacts to migratory and other bird populations.” and

“the Department has determined that we have, over many years of study and evaluation, developed sufficient information regarding the diversity, scope, and importance of avian resources in and around the Delaware Bay.  Based on these data, we conclude that, at this time, this area is not appropriate for a large-scale wind turbine project.” 

This is a fabulous decision. The Atlantic Flyway Council also opposed the project (see 7/28/09 letter) and the State of Delaware raised significant concerns (see letter)

Brad Campbell represents Delsea Energy, who are seeking DEP approval to put more than 100 wind turbines to produce more than 380 megawatts in the state waters of Delaware Bay.

The DEP rejection letter had been preceded by a closed door June 11, 2009 meeting with Senator Sweeney and DEP Commissioner Mauriello. Clearly, Campbell thought he had DEP support, in the wake of the June 11, 2009 meeting with Senator Sweeney and DEP Commisisoner Mauriello. After that meeting, Mauriello and Campbell had a private conversation that led Campbell to believe that he had DEP support for the project, or that DEP objections were minor or technical in nature.

Instead, the DEP August 20 rejection letter clearly took Campbell by surprise because in an August 25, 2009 personal email to DEP Commissioner Mark Mauriello, Campbell complained:

“When you and I spoke, you said to expect a letter from land use suggesting a meeting to review technical concerns about the Delsea monitoring application”.Did I misunderstand, or has the Department’s position changed from what you described?…Is it really the Department’s view that private parties will not have the opportunity to collect data that might modify, rebut, or qualify F&W’s broad conclusions about the entire Bay?  I don’t want to protract a debate or impose unduly on your time, but the [August 20] letter is quite different from what I expected based on our conversation.”

So, there it is: a powerful Senator calls DEP on the carpet at his State House office in a private off the record meeting with the DEP Commissioner, the former DEP Commissioner and Delsea Energy.

But DEP scientists are not a party to the deal and object.

Campbell then objects to the DEP decision off the record in an email to the Commissioner.

Typically,  with this high powered political pressure brought to bear, such a decision would be reversed.

But now that folks are watching, let’s see what happens!

Oh, BTW – no way DEP Commissioner Mauriello would meet with Sweeney without the knowledge and approval of the front office – so Governor Corzine’s position on this project needs to be established. Will he back DEP scientists?