WolfeNotes.com

Christie DEP Mimics Bush/Cheney  Energy Taskforce

“We bring in all different organizations so that we’re getting all different points of view before we make decisions.” ~~~ DEP Commissioner Bob Martin (watch it)

“We can cut through unnecessary red tape and provide real solutions to real-world problems, while maintaining our high protective standards,” DEP Commissioner Bob Martin said. (read it)

[Update 2: 6/1/11 - did an interview on WBAI radio (Pacifica affliate in NYC) "Wake Up Call" - runs in 6 am hour - from time 47:55 - 59:55 (to listen hit link in upper right)

Update 1  below]

Following the testimony I delivered on December 9, 2010 to the Senate Environment Committee (see: “DEP Puts Lipstick on Industry Dominated Toxic Site “Reform” Pig“) , today Jim O’neill of the Bergen Record wrote a killer story: Polluters rewriting rules for site cleanup.

O’Neill’s reporting flat out contradicts DEP Commisisoner Martin’s claims about seeking “different points of view”. The story begins: 

Key committees writing rules for New Jersey’s new program to clean up contaminated sites are made up entirely of the polluting companies and their contractors.

The 16 committees, which have been putting together rule and guidance documents, include no one from environmental or resident advocacy groups, no health specialists, and no outside experts who aren’t affiliated with the cleanup industry.

“It’s a who’s who of corporate polluters and their hired consultants,” said the New Jersey Sierra Club’s Jeff Tittel. “These oversight rules will be written so loosely there will be nothing to enforce later.”

Well, so much for Martin’s commitment to obtaining “all different points of view” before making decisions! DEP proposed rules on May 2, 2011.

But that’s not the only DEP lie foisted on the public – the more important lie is about ongoing DEP efforts to weaken public health and environmental standards.

Importantly, O’Neill broke a very important aspect of this rollback effort. For the first time, DEP is on record as saying they plan to revise cleanup standards:

“The DEP is also creating a group of committees to revise the actual standards for cleanup — the levels of contamination that can remain after cleanup depending on the site’s future use.

This contradicts repeated DEP assurances that current cleanup standards would be retained.

During debates on the controversial privatization of NJ’s toxic site cleanup program, the public was given repeated assurances by legislators and DEP that DEP would retain current stringent health and environmental standards, including current soil, groundwater, surface water, vapor intrusion, and drinking water standards.

But those repeated assurances have been betrayed.

When I warned the Senate Environment Committee on December 9, 2010 that standards would be weakened, Committee Chairman Bob Smith challenged that testimony and repeated DEP’s assurance that cleanup standards would NOT be weakened.  I urge anyone with doubts to listen to the testimony, including my exchange with Chairman Smith, which begins at time 1:26:20)

Current DEP Commissioner Martin is violating a commitment of his predessor and thus legislative intent, which was based on those commitments that standards would be retained.

On April 15, 2008, DEP Commissioner Lisa Jackson testified to the Legislature:  

Under this plan, [toxic site cleanup] cases will be adddressed rapidly and properties will be developed to desired uses. We will be cleaning up sites and stimulating economic vitality vitality. We will not compromise on our standards or protection of the environment and public health. Nor will we delegate the inherently governmental functions of site remediation to private entities. The Department will maintain the functions associated with the issuance all NFA’s, review all cases with receptor and off-site contaminant migration impacts, audit cases based on potential risks and expand our oversight for the “worse” cases and for those with recalcitrant responsible parties.

But the Christie Administration’s new policy is even worse than that.

Vapor intrusion decisions are inherently governmental functions and essential public health protections.

Vapor intrusion sites are high risk cases that are required to remain under direct DEP oversight. 

Delegating decisions on vapor intrusion to private entities and allowing them to exercise judgement in the absence of regulatory standards is absurd - get the whole story on DEP’s May 2, 2011 rule proposal below from our friends at PEER:

[Note 1: DEP summary of the SRRA does not even mention the mandate in Section 39 to adopt a "remedial priority system" (RPS) by May 2010. The RPS was designed as the mechanism by which DEP would prepare a risk based cleanup priority list and retain direct oversight of high risk cases  while the LSP's were given low risk cases. Obviously direct contact exposure vapor intrusion would be a high risk case that would be under direct DEP regulatory oversight under the standards in the Vapor Intrusion Guidance, not an LSP case allowing discretionary use of "best professional judgement" to determine if vapor investigation is necessary and whether or not to mitigate.]

[Note 2: The Department could have proposed a rule that provided for direct DEP oversight of vapor intrusion cases. They chose not to do that. The Department’s proposal and  various facts sheets all fail to address the RPS mandate and risk based criteria for the DEP to retain direct regualtory oversight. Here is the statutory language – look specifically at b. 4 below: 

C.58:10C-27 Direct oversight of remediation by department; conditions

b. The department may undertake direct oversight of a remediation of a contaminated site under the following conditions: 

 (1) the contamination at the site includes chromate chemical production waste;

(2) the department determines that more than one environmentally sensitive natural resource has been injured by contamination from the site;

(3) the site has contributed to sediments contaminated by polychlorinated biphenyl, mercury, arsenic, or dioxin in a surface water body; or

(4) the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16).

[Update – even the DEP ackowledges that their job is to retain direct oversight of the highest risk cases. In a recent regulatory adoption, DEP responded (to my comment opposing a “safety cushion”, code for elimination of mandatory timeframes) as follows:

Placing a significant number of cases under direct oversight would defeat the purpose of the LSRP program, which was to relieve the Department from overseeing the remediation of every case in favor of having enough resources for the Department to focus on the cases that pose the greatest risk to public heath and the environment.(@ page 25)

So, exactly what are those cases? What are the sites that pose the greatest risk to public health and the envrionment? Shouldn’t we know this before giving ANY site to an LSP?

Management 101 – set priorities.

Grandfather Peacox (seated on left)

Today, I’ll repost my Veteran’s Day post in respect for my maternal grandfather Peacox, a WW I vet; my paternal grandfather “Pop” Wolfe, a WW II Navy vet; my Dad, who served in the Army during Korea (but not in combat); and my Uncle Charlie, who was wounded in Korea.

None of them died in war, but they all were impacted by war, and poor uncle Charlie lost his soul in Korea.

We go first to WW I USMC General Smedley Butler, and then to former USMC Captain Mathew Hoh, who resigned in protest over Afghanistan war :

WAR is a racket. It always has been.

It is possibly the oldest, easily the most profitable, surely the most vicious. It is the only one international in scope. It is the only one in which the profits are reckoned in dollars and the losses in lives.

A racket is best described, I believe, as something that is not what it seems to the majority of the people. Only a small “inside” group knows what it is about. It is conducted for the benefit of the very few, at the expense of the very many. Out of war a few people make huge fortunes.

In the World War [I] a mere handful garnered the profits of the conflict. At least 21,000 new millionaires and billionaires were made in the United States during the World War. That many admitted their huge blood gains in their income tax returns. How many other war millionaires falsified their tax returns no one knows. [...]

Take our friends the du Ponts, the powder people – didn’t one of them testify before a Senate committee recently that their powder won the war? Or saved the world for democracy? Or something? How did they do in the war? They were a patriotic corporation. Well, the average earnings of the du Ponts for the period 1910 to 1914 were $6,000,000 a year. It wasn’t much, but the du Ponts managed to get along on it. Now let’s look at their average yearly profit during the war years, 1914 to 1918. Fifty-eight million dollars a year profit we find! Nearly ten times that of normal times, and the profits of normal times were pretty good. An increase in profits of more than 950 per cent. [...]

And let us not forget the bankers who financed the great war. If anyone had the cream of the profits it was the bankers. Being partnerships rather than incorporated organizations, they do not have to report to stockholders. And their profits were as secret as they were immense. How the bankers made their millions and their billions I do not know, because those little secrets never become public – even before a Senate investigatory body.

[Full text is here]

For anyone who might think Mr. Smedley Butler was some hippie pacifist, here’s his Wiki bio:

Smedley Darlington Butler (July 30, 1881 – June 21, 1940), nicknamed “The Fighting Quaker” and “Old Gimlet Eye”, was a Major General in the U.S. Marine Corps, and at the time of his death the most decorated Marine in U.S. history. During his 34-year career as a Marine, he participated in military actions in the Philippines, China, in Central America during the Banana Wars, the Caribbean and during World War I, he served in France. By the end of his career he had received 16 medals, five of which were for heroism. He is one of 19 people to twice receive the Medal of Honor, one of three to be awarded both the Marine Corps Brevet Medal and the Medal of Honor, and the only person to be awarded the Brevet Medal and two Medals of Honor, all for separate actions.

Next, we go to the words of USMC Captain Hoh. Hoh didn’t leak documents or blow the whistle, he honorably resigned in disgust. Here is his resignation letter:

… Our support for this kind of [Afghanistan] government, coupled with a misunderstanding of the insurgency’s true nature, reminds me horribly of our involvement with South Vietnam; an unpopular and corrupt government we backed at the expense of our Nation’s own internal peace, against an insurgency whose nationalism we arrogantly and ignorantly mistook as a rival to our own Cold War ideology.[...]

I realize the emotion and tone of my letter and ask that you excuse any ill temper.  I trust you understand the nature of this war and the sacrifices made by so many thousands of families … Thousands of our men and women have returned home with physical and mental wounds, some that will never heal or will worsen with time. The dead return only in bodily form to be received by families who must be reassured their dead have sacrificed for a future worthy of futures lost, love vanished, and promised dreams unkept. I have lost confidence that such assurances can anymore be made. As such, I submit my resignation.

[please read complete letter here]

Lee Solomon - President, BPU

Today’s Star Ledger Auditor column reports that there was a behind the scenes battle in Governor Christie’s Cabinet on his controversial global warming denial comments.

The Auditor claims that Lee Solomon was the global warming denier: Global warming splits the Christie administration

Gov. Chris Christie might have raised some eyebrows when he announced he was “deferring to scientists” on the issue of global warming after being “skeptical,” but it seems to have come after some division in his office.

The Auditor has learned that in the lead-up to Christie’s Thursday announcement that he would pull out of the regional cap-and trade program designed to reduce greenhous gases, there was a split between his advisors.

Supporting the view that global warming is a man-made occurrence was Department of Environmental Protection Commissioner Robert Martin. On the other side was Lee Solomon, the president of the Board of Public Utilities.

Multiple sources tell The Auditor that behind closed doors, Solomon wasn’t shy about his skepticism over global warming.

So, I thought I’d remind folks of what the Christie backing  NJ Environmental Federation said on Jan. 21, 2010 about Mr. Solomon:

Christie’s BPU pick has a green past for a green future

 

Trenton, NJ — The NJ Environmental Federation (NJEF) released the following statement in response to Governor Christie’s pick today to head the BPU.

“Lee Solomon has the legal, environmental, personal, and political background to ensure a cleaner, greener 21st century. While we’ve obviously worked less with him more recently given his role as a judge and prosecutor, Lee Solomon was an environmental ally as a Freeholder and Assemblyman. His strong opposition to proposed garbage incinerators in Camden and Pennsauken, the latter of which was stopped, because of their negative enviromental and economic impacts bodes well for today. We need clean solutions for tomorrow not dirty ideas from the past. That’s Governor Christie’s agenda. That’s why we endorsed him and we look forward to working again with Lee to implement that agenda,” said Sharon Finlayson, NJEF’s Board Chair.

In addition to the Governor’s energy as industry agenda (http://christiefornj.com/issues/energy-as-industry.html) , BPU will play an important role implementing some of the key pieces of the Governor’s environmental agenda including but not limited to:

• Aggressively implementing the Global Warming Response Act and Energy Master Plan to reduce greenhouse gas emissions with greater emphasis on clean renewables and energy efficiency;
• Enacting policies in the first 100 days to stop the fish slaughter resulting from flawed cooling systems at the Salem and Oyster Creek nuclear plants; and
• Opposing the proposed Linden coal plant, recognizing the environmental injustice it places on a community already overburdened by pollution.

Ahem… is it toast yet? Stick a fork in it!

In yet another sign of the ill advised polluter friendly deregulatory policy of the Christie Administration, today’s Star Ledger reports that DEP inspections and enforcement of air pollution laws hit a historic low in the first year of the Christie Administration:

Decline in N.J. pollution control raises environmental concern

 

Trenton – State scrutiny of air polluters ranging from oil refineries to neighborhood dry cleaners slipped during the past decade, according to a Star-Ledger review.

Statistics show that while oversight of New Jersey smokestacks often fluctuated during the decade, inspections, investigations and enforcement all hit lows in 2010.

Department of Environmental Protection numbers show that from fiscal year 2001 to fiscal year 2010:

•Routine inspections of air polluters decreased 65 percent, from 1,387 to 490.

•Surprise investigations, often spurred by complaints, fell 40 percent, from 1,027 to 621.

•Actions taken against polluters breaking the law fell 25 percent, from 984 to 739.

•Staffing for air pollution enforcement dropped 19 percent, from 75 people to 61 people.

Kudos to the Ledger for doing real journalism and reviewing DEP documents, instead of rehashing DEP press release spin.

Let’s hope this blood in the water is expanded to look at the Christie/Martin rollbacks in virtually all DEP programs – and show how those polluter friendly policies harm public health and environmental protection – and that Democrats in the Legislature intervene to start holding the Governor accountable for these policies by conducting oversight hearings to assure that NJ’s strong environmental laws are strictly enforced.

(hint: lots of skeletons in this closet)

Release of Emissions Inventory needlessly creates deep confusion

We just had a replay of the confusion created following Governor Christie’s Feb. 22 budget address.  

Recall that the Gov. went out of his way to brag that he slashed DEP’ budget by 10%, a claim that was contradicted just 1 hour later by DEP Commissioner Bob Martin, who issued a press release that said DEP’s budget had increased by 5.3% (see: Did Martin Pull a Schundler?).

To his business cronies, Christie wanted to appear a “fiscally responsible” budget hawk, particularly by starving the beast at DEP. Yet, he and Bob Martin also wanted to appear pro-environment.  

It’s deja vu all over again - but this time Martin didn’t wait an hour. He appeared with the Governor. They want it both ways again:

Last week, the NJ DEP issued a press release, announcing the release of a DEP Report on Greenhouse gas emissions during the calendar year 2008.

The lede of the press release highlighted that greenhouse gas emissions were declining and claimed that NJ had actually met the Global Warming Response Act’s 2020 emissions reduction goals.

The DEP release was issued the same day Governor Christie stirred national controversy  by announcing that he was withdrawing NJ from the 10 northeast states’ Regional Greenhouse Gas Initiative (RGGI).

Here is DEP’s lede:

TRENTON – Statewide greenhouse gas emissions decreased by more than 8 percent in 2008, bringing New Jersey under 2020 emissions levels targeted by the State’s Global Warming Response Act (GWRA), according to a legislatively mandated report issued by the DEP today.

We’ll get to that alleged “legislative mandate” in a moment (see point #1 below), but at this point will note that it implies some sense of independence between the release of the Report and the Governor’s RGGI statement.

The same day DEP issued the emissions inventory, Governor Christie held a press conference - accompanied by DEP Commissioner Martin. In addition to his RGGI statement, in an effort to have it both ways, the Governor issued a dubious statement highlighting bullets about Christie’s “Commitment to Protecting NJ’s Environment” . 

For national consumption, the NY Times coverage noted that Christie’s withdrawal from RGGI was based on this rationale:

Gov. Chris Christie of New Jersey said the regional climate initiative “does nothing more than tax electricity, tax our citizens, tax our businesses, with no discernible or measurable impact upon our environment.”

In NJ media circles, although Christie won praise for finally conceding that humans caused global warming (a scientific conclusion he previously denied), a close reading of the text of the Governor’s statement suggests just the opposite.

Instead of walking back his global warming denial, Christie actually is using classic propaganda techniques to manufacture false uncertainty about:

• the scientific consensus on man made global warming (”we are at least part of the problem” – inference: we better figure out how much):
• the urgency of the problem and strength of the science to support policy actions now (we are “just beginning to have a fuller understanding” - inference: guess we need to wait for more science to come in); and
• the existence of currrent NJ laws and policies to control greenhouse gas emissions (”put policies in place” – inference: putting in place policy takes more time and we’re under no binding laws and policies now. Just like the New Normal, the past is not binding):

[Update: 6/6/11 - read this piece about risk versus uncertainty: "Risky Advice"]

Christie did all this by saying:

But when you have over 90% of the world’s scientists who have studied this stating that climate change is occurring and that humans play a contributing role it’s time to defer to the experts. Climate science is complex though and we’re just beginning to have a fuller understanding of humans’ role in all of this. But we know enough to know that we are at least a part of the problem. So looking forward, we need to work to put policies in place that act at reducing those contributing factors.

So, moving right along, from a communications perspective, what’s up with these deeply conflicting messages on a key issue? Can emissions be declining, and yet RGGI ineffective? What’s the relationship between RGGI and emissions reductions? What explains emissions reductions? How much is due to RGGI and how much does RGGI cost? What does the money go toward? Who benefits and who pays?

The Governor’s statement provided 4 reasons for killing RGGI (we will examine them in a subsequent post).

Getting back to DEP’s emissions inventory press release: Was DEP providing cover for the Governor by balancing the “good news” about emissions reductions with the bad Christie RGGI move? Did they expect more praise and cover from Pringle?

Do the Christie folks think they can have it both ways? Or was this incoherent chaos an intentional move to baffle the media and public by creating a plausible cover story?

Let’s first look at the media dynamics.

Predictably, the DEP press release on the emissions inventory Report prompted criticism from Jeff Tittel of Sierra Club, who also questioned the timing of its release, comparing it to discredited George Bush tactics:

“This report is the environmental equivalent of George Bush landing on an aircraft carrier with a sign that says ‘Mission Accomplished,’ ” said Jeff Tittel of the Sierra Club’s New Jersey chapter. “The data makes no sense.”

The DEP press office fired back, with another in what has become a pattern of increasingly harsh attacks on Tittel:

“The study speaks for itself. It’s just a factual report,” said DEP spokesman Larry Ragonese. “Jeff Tittel can criticize all he wants, but this study was prepared by DEP scientists who are viable, credible professionals who put the numbers together as required by the Legislature. The numbers are legitimate and valid.”

We agree with DEP on one point - yes, DEP scientists and staff are credible. But the DEP Commissioner and Press Office are not.

Shame on them for timing the release of this report to provide Christie RGGI cover and then hiding political spin behind the reputations of DEP professionals. 

That too is a page out of Bush media playbook. Bush shamelessly hid behind the troops. He did this to dodge criticism of Bush’s bad decision to go to war in Iraq. Critics were marginalized and attacked as unfaithful to the troops fighting his foolish war (this explains all the obligatory “Support the Troops” crap. The modern roots of that go back to Nixon administration lies about hippies spitting on Vietnam Vets as they returned to the US. But I digress).

Moving on to the technical front, I reviewed and will focus today of the emissions inventory Report (I intend to write a policy piece about Governor Christie and the RGGI issues in a subsequent post).

My intent here is not to get into the increasingly petty he said/she said DEP press office squables or to defend Tittel (he’s more than capable of that), but to illustrate how DEP Press Office is hiding behind and spinning the data in the DEP staff emissions inventory Report.

1. The timing is Suspect

The DEP Report releases data from 2008 – which leads to the obvious question of “why was it released now?”.

The timing of the release is highly suspected of political motives, for at least the following reasons:

• The Christie RGGI withdrawal press conference. RGGI is one of 3 major components of NJ’s greenhouse gas emissions reduction strategy.
• Section 7 of the GWRA requires DEP to submit biennial reports (i.e. every 2 years), starting in January 2009. According to DEP’s May 2011 Report, the last biennial report was completed in November 2009 and included estimated greenhouse gas emissions for years 2005 through 2007. The next biennial Report  was due in January 2011, but could be expected in November 2011, Regardless, it should include emissions for years 2007 – 2009. So why was this Report issued in May 2011 and limited to 2008 emissions? Why is DEP moving to an annual Report when the law specifies biennial reporting?
• According to Appendix A of the DEP report, the 2008 electric sector in state emissions “data were downloaded from the Department’s database through WebIntelligece on  May 19, 2010“. That was over 1 year ago – does it take over a years to format that data in a Report? What explains the delay? 

2) The Press release is selective and misleading with repect to attaining Global Warming Response Act Goals

The DEP staff report correctly notes that the GWRA has two very different emissions reduction goals: a 2020 target and a far more stringent 2050 target. Yet the DEP press release selectively mentions only the 2020 target. This cherry picking misleadingly implies that the Act’s requirements are met.  As Tittel said: “Mission Accomplished“.

The DEP staff Report noted that we have a long way to go in meeting GWRA goals. Here is what the Report actually says. But you wont find these key findings in the DEP Press Office spin:  

The Statewide greenhouse gas limit for 2050 is 80 percent less than the 2006 level of Statewide greenhouse gas emissions, or 25.4 MMTCO2e. To achieve this limit, greenhouse gas emissions must be reduced approximately 101.5 MMTCO2e compared to 2006 emissions. The 2008 releases are 124.9 MMTCO2e, approximately 99.5 MMTCO2e above the 2050 limit. 

The DEP Report is based - and heavily reliant on – fuel use data from the Energy Information Administration and various EPA greenhouse gas emissions factors, not actual emissions data.

This reliance on emissions factors not only injects uncertainty into the inventory, but is masks the fact that Governor Christie killed DEP proposed emissions inventory monitoring and reporting rule, which would greatly improve the inventory by providing real actual emissions (see:   CHRISTIE SHREDS NEW JERSEY CLIMATE CHANGE PROGRAMS — Kills Emission Reporting, Diverts Green Energy Fund & Defunds Climate Office

4)  Alleged emissions reductions are exceeded by the 5% undertainty factor, adjustments in methods, and dubious assumptions

The DEP Report estimates that 2008 emissions are 124.9 MMT, down from 2007 by 11 million metric tons of CO2 equivalent.

This 11 MMT estimate is transparently  qualified with this caveat in a footnote to the staff Report:

All numbers are estimates; uncertainty of totals is likely in range of plus or minus 5 percent.

Thus, a 5% uncertainty factor  is about +/- 6.2 MMT, or more than half of the estimated 2008 reductions. The estimates should have been provided as a range, not a numeric value, e.g. as  118.7 – 131.1 MMT (+/- 6.2)

The DEP press release reports a numeric value and lacks this caveat. This elides uncertainty and thereby misleads about the accuracy and reliability of the inventory’s estimates.

Furthermore, the 2008 Report is based on various adjustments in methodology. The changes all have the effect of reducing emissions. For example, changes in methods result in reductions of 3.5 MMT for forest sequestration.

Thus, uncertaintly and changes in methods may actually account for LARGER than reported emissions reductions. Actual real emissions may have increased. 

5)  Adjustments to methodology from prior inventories clouds results and undermines trend analysis  

The DEP Report transparently concedes this set of problems and attemtps to address it – the DEP press release does not.

6) There is selective and biased adjustments, all of which lower emissions but ignore increases in emissions

Importantly, the DEP estimates that significant emissions reductions may have occured due to fuel switching from coal to natural gas. Yet the Report fails to consider that EPA recently revised its GHG emissions factors for natural gas, making them essentially the same as coal. (see: Climate Benefits of Natural Gas May Be Overstated)

Use of EPA’s current revised natural gas emissions factors very likely would signifciantly increase estimated electric sector and total emissions. 

7) forest sequestration estimate is not fully documented and contradicted by forest loss and land development data

The DEP report estimates that carbon is being “sequestered” in forests and soil – and that this has increased since 1990.

Yet, for many years, NJ has been losing 15,000 – 20,000 acres per year to development - including forests, wetlands, farms, vegetation, and soils that store carbon.

I don’t have the expertise or time to review the Rutgers study and DEP’s very confusing Appendix A “explanation” of this apparently glaring conflict, so let’s just say is injects serious doubt into the land clearing emisions (1.7 MMT) and sequestration estimates (7.6 MMT).

8. Electric sector fuel switching to natural gas estimate not documented and ignores EPA’s increase in emissions factors for natural gas

Natural gas emission factors are far too low – see point #6 above.

9)  Garbage incineration emissions reduced by 60% based on a dubious assumption

DEP subtracts 60% of garbage incinerator emissions (0.5 MMT) resulting from burning of paper on the highly dubious assumption that paper is manufactured from trees harvested in sustainable forests. Right.

10)  conflict and possible error in forest sequestration data reported in Appendix A

Table 1 (page 4) estimates forest carbon sequestration at -7.6 MMT, but Appendix A seems to report -4 MMT. Either I’m reading this wrong or there is an error.

Aside from delving into the weeds to raise these technical issues, the larger problem is that the simultaneous release of a DEP press release - which conflicts with Gov.’s conclusions for RGGI withdrawal - needlessly creates nothing but deep confusion.

‘Being disliked, but feared’ is swaggering group’s ambition

I thought I’d post this piece which provides a DC Beltway perspective of PEER – “annonymous activism” is what we do. No link available so I’ll post the whole thing.

ADVOCACY: ‘Being disliked, but feared’ is swaggering group’s ambition (05/24/2011)

John McArdle, E&E reporter

The federal Merit System Protection Board reinstatement this year of U.S. Park Police Chief Teresa Chambers was a landmark victory in the annals of whistleblower protection law and a crowning achievement for Chambers’ legal team at the nonprofit Public Employees for Environmental Responsibility (PEER).

But PEER executive director Jeff Ruch is the first to admit his group’s mission of “protecting employees who protect our environment” is not necessarily best served through drawn-out legal battles like the seven-year Chambers case.

“Talking people out of blowing the whistle is one of the best things we do,” Ruch said in a recent interview.

PEER prefers to accomplish its mission by allowing public employees to use the organization to anonymously expose wrongdoing they come across in their work, he said. Often it is through document leaks or tipping off PEER as to where to direct its frequent Freedom of Information Act (FOIA) requests.

The organization’s goal is to use an agency’s own documents and internal communications to shine a light on issues while at the same time keeping a concerned public employee on the job and protected from the perils that can often come with whistleblowing.

But despite high-profile achievements like its successful effort in 2007 on behalf of U.S. EPA librarians to reopen closed agency libraries, PEER’s tactics occasionally open it to criticism from agency officials who say the watchdog group is more interested in throwing bombs than solving problems.

Criticism does not bother Ruch.

“If we can be an effective boogeyman of ‘You better do right or we’ll call in those assholes from PEER,’ then we’ve done our job,” he said while sitting in his Dupont Circle office surrounded by memorabilia from his many environmental battles.

Among Ruch’s mementos is a photo of Chambers on the day she was sworn in as park police chief. Chambers — who lost her job after talking to reporters about how staff shortages endanger park visitors — is flanked in the photo by two George W. Bush administration officials who were involved in her 2004 dismissal.

Chambers had given the picture to Ruch on the day she cleaned out her office. Former Interior Secretary Gale Norton, who is in the photo, had signed “Chief — Thanks for your great leadership.”

Ruch made sure the photo was in the room when he took depositions from government officials in the Chambers case.

“Being disliked, but feared, is really kind of the attitude we want,” he said.

Winning cases fill coffers

Although founded in 1992 as an organization for whistleblowers, PEER’s advocacy for anonymous agency employees has today become its niche and helps set it apart from other Washington, D.C., environmental groups.

“PEER is sort of like the Elliot Ness of the environmental community,” said Rob Perks, a deputy program director with the Natural Resources Defense Council who spent three years at PEER in the late 1990s.

PEER “is really about … ‘Back off and let these employees do what they do,’ and they take on incredible forces in doing that,” Perks said.

At the outset, PEER was almost entirely run through foundation grants. Today, grants still fund a majority of the group’s efforts, but the group’s legal operation brings in enough money to fund about 30 percent of the $1.3 million needed to run the group’s D.C. headquarters and seven regional offices. For example, after the Chambers victory, PEER received a check for $675,000 from the Department of the Interior to cover its legal fees. And updates to the FOIA law in 2007 have made it easier for PEER to collect attorneys’ fees when those cases go to court.

Another 10 percent of the group’s funding comes through membership dues and donations.

Although it is currently involved in a dozen enforcement suits against the government, another 10 whistleblower matters and a FOIA effort that submits about one request every third week, Ruch described the group’s work as simply an exercise in transparency.

“When the agency is dysfunctional and doing things they shouldn’t do and for the most part doesn’t want people to know about, that’s when we go in,” he said. “The agency is forced to confront what they thought was going to remain behind closed doors.”

PEER calls it “anonymous activism,” and the best symbol of its work can be found in the one piece of apparel the group sells on its website: underwear, with the words “undercover activist” written across the back side.

“PEER boxer shorts are the apparel undercover activists can wear in the office!” the site proclaims.

When it comes to PEER’s involvement in, say, the environmental impacts of rebuilding of eroded beaches in Florida with dredged material (which was the subject of one release last week), the group relies on concerned agency employees their scientific and subject matter expertise.

“We don’t have staff scientists,” Ruch said. “We don’t really have experts. We’re experts in agitation.”

That last statement brought quick agreement from several current and former agency officials who have tangled with PEER over the years.

Attention-grabbing press releases

An example of PEER’s fondness for stirring the pot can easily be found in an eyebrow-raising press release from early April.

Entitled, “Gulag EPA: Report Finds Discrimination Meltdown,” PEER went for shock value in equating the agency’s Office of Civil Rights with Soviet-era forced labor camps.

PEER based its press release on an EPA-commissioned report that was highly critical of the civil rights office, but one agency official said he thought PEER lost credibility in trying to write a memorable press release.

“We’re accustomed to the fact that there are going to be folks, and there should be folks, outside the agency who are keeping an eye on what we’re doing,” the official said. “I just think there’s a difference between the way that some folks do it and the way PEER does it. … I think taking ammunition and throwing bombs is very different from taking ammunition and trying to get problems solved. And it’s not always clear that that’s what [PEER's] focus is.”

One former agency senior manager who had several run-ins with PEER over the years said the problems that are brought to the watchdog group are often brought by a small minority of employees while the rest either do not have a problem or choose to handle their concerns through more appropriate channels inside the agency. By going to PEER, the former manager said, some employees may not realize the collateral damage they will cause or the time that can be wasted in trying to set the record straight.

One high-profile incident that backfired on PEER came in late 2006, when the group issued a press release criticizing the fact the Park Service had yet to conduct a promised review of its approval for a book sold in the park visitor center that offers a creationist view of the formation of the Grand Canyon.

PEER began its release by saying, “Grand Canyon National Park is not permitted to give an official estimate of the geologic age of its principal feature, due to pressure from Bush administration appointees.”

That accusation touched off a firestorm after the Park Service categorically denied that any gag order was in place and noted that rangers are fully instructed to describe for visitors the geological science that indicates that the Grand Canyon to be somewhere between 5 to 6 million years old.

PEER eventually issued an updated release that removed the inflammatory first sentence. Ruch said this week that that was the only time he remembers having to take such a step in his 15 years with the group.

But Ruch does not apologize for drawing attention to what he still believes is a serious example of the Park Service abdicating its responsibility to come up with a coherent policy.

“You’re doing a press release so you’re trying to draw media attention,” Ruch said. “So what’s the point of doing a press release if nobody picks it up? … You have to explain why this translates into a matter of some public interest.”

The former senior agency manager said the group’s desire to simply make headlines is a big reason why it was viewed as more of “an extreme frustration” rather than a constructive environmental watchdog.

“When you’re trying to manage a large organization in the federal government, it’s of no benefit to have someone constantly stirring the pot and that’s exactly what they were doing,” the manager said

Still the former manager did not dismiss all of PEER’s work.

“At times they do unearth some legitimate problems, but that occurs in maybe 5 percent of their issues,” the manager said. “The rest of the time the government has to put up with their tactics and the collateral damage they cause in other areas.”

But if PEER is an irritant to federal managers, Ruch said he is proud his group is an equal opportunity pest.

‘Obama Watch’

While there was abundant optimism among environmentalists in 2008 that public employees working on environmental and public health issues would be better off under the Obama administration than they were under the George W. Bush administration, PEER began taking on the new administration even before President Obama was sworn in.

In December 2008, the group issued a release on “Why Lisa Jackson Should Not Run EPA.” The release decried Jackson’s “disastrous record” as commissioner of the New Jersey Department of Environmental Protection and chided her for embracing policies in New Jersey that echoed the practices of the Bush EPA.

Four months later, PEER was already hitting Obama for his failure to improve whistleblower protections despite pledges to do so during the presidential campaign.

Today the group runs a separate section of its Web site called “Obama Watch” with the tag line “Change We Still Need.”

As a nonprofit 501c(3) group, PEER is prohibited from engaging in political activities, so Ruch said he could not offer an opinion on Obama’s upcoming re-election campaign. But he was more than happy to discuss the administration’s environmental policy — or what he sees as a lack thereof.

“I don’t think they really have an environmental policy,” he said. “They have an energy/environmental policy and so environment is a handmaiden to an energy strategy. … On a lot of these issues I think the Obama people view environmental concerns as a bargaining chip and if the environmental concerns win or lose, it’s because they have been lucky at the political gaming tables, not because there’s any sort of overall concern or priority or strategy.”

Ruch is particularly critical of the administration’s efforts when it comes to drilling. After the White House announced an ambitious interagency plan to accelerate the permitting of exploratory drilling in the Arctic Ocean and in the National Petroleum Reserve, Ruch noted that Obama has now pushed four different offshore drilling plans in less than three years in office.

“Somebody asked what’s the difference between Obama on this issue and [former Vice President] Dick Cheney,” Ruch said. “My answer? At least Dick Cheney was decisive.”

But Ruch does give the Obama administration some credit for the steps it is taking toward protecting scientific integrity.

Last December, the White House Office of Science and Technology Policy (OSTP) released guidelines aimed at ensuring that government scientists’ work is not altered for political purposes. Since then, only Interior has issued a final policy, but OSTP has said that every major agency is moving forward with creating their own policies.

“The scientific integrity stuff is like a whole new body of law being created,” Ruch said. “It’s like a volcanic creation of an island of law that heretofore didn’t exist. … We often said the reason the Bush admin could manipulate science so routinely is because there were no rules against it.”

Ruch said the effort, despite its numerous delays, is nevertheless exciting for PEER because the group often deals with scientists whose work has fallen outside of legal protections.

“These rules are right on the verge of protecting scientific information, giving it legal status,” he said. “It’s empowering the pencil pushers.”

And that’s what PEER is all about.

Wildwood, NJ (photo by "Greg" from "Doo Wopper" website)

It’s funny how perspective and learning randomly happens sometimes.

I was planning to write another post today on the controversial DEP public access rule proposal. (see today’s Kirk Moore story for the latest developments Beach access advocates say Shore towns can’t be trusted to craft public access plans)

I wanted to emphasize the fact that the DEP proposal – which essentially delegates State responsibility and DEP regulatory power to local land use planning -  originated in the Christie DEP Transition report and the Red Tape review process.

The DEP Transition report targeted the access issue with this recommendation (@page 7):    

Reexamine regulations to ensure they are properly focused on specific, well defined goals, and minimize or eliminate peripheral requirements. An example of this is the waterfront Public Access rule adopted by DEP in 2007 without direction from the Legislature, which completely changed the existing waterfront public access framework and imposed onerous new fees without standards for how the fee would be applied or calculated.

 The Red Tape report went further and harshly blasted the DEP access rules as an example of regulations that “offend common sense“: 

 2. Examples of Rules that Appear to Offend Common Sense

 N.J.A.C. 7:7 and N.J.A.C. 7:7E, respectively – “Public Access Rules”

  The Group heard testimony at the Montclair State University meeting regarding the implementation of the Department of Environmental Protection (DEP) Public Access Rules. The regulations were adopted in December 2007 as amendments to the rules governing the administration of the Coastal Permit Program and Coastal Zone Management regulations, addressing the public’s right to the access and use of tidal waterways and their shores – including the ocean, bays and tidal rivers in the State. Specifically, the regulations require that as a condition of receiving a permit, on-site, permanent, unobstructed public access to the tidal waterways and shores need be provided on a 24-hour, seven-day-a-week basis. If the access is not practicable, then DEP regulations require that a payment be made to DEP to provide off-site access somewhere else. The Group heard testimony from marina operators, the business community and port operators that the regulations will impact security at military installations, sensitive industrial facilities, commercial ports and harbors and energy facilities. 

Understanding this history is key because this origin and original intent completely destroys current DEP spin that the intent is to “enhance” and “expand” public access, as DEP’s May 23 press release falsely claimed.

This has absolutely NOTHING to do with expanding or enhancing public access.

The obvious intent of the proposal is to deregulate and promote development and developers’ access to the shore.

[Update: here is DEP deregulatory Q&A spin: DEP has gone from prescriptive rules to local delegation: 

How do these requirements differ from previous public access requirements?

The Department believes that environmental and policy goals can be accomplished without extensive and proscriptive (sic) regulatory requirements.

Purpose of This Rule Proposal

This rule seeks to maintain and enhance the public’s access to coastal and tidal waters in a reasonable, planned manner. It seeks to build on the Public Trust Doctrine, which is a piecemeal, site-specific, common law doctrine, by developing a comprehensive, yet flexible, public access plan for the entire state.

That's a load of crap. Does Ray Cantor think we're stupid?

I previously wrote about the Red Tape origins. In that March 2010 post, I highlighted the testimony of a Wildwood developer at the March 23, 2010 Montclair State public hearing. According to the Bergen Record coverage of that hearing:

Richard Patterson, managing member of Martinique Resorts LLC, said the company has spent almost $2 million trying to comply with the permit process on a plan to build a high-rise hotel in Wildwood.

While state law requires 292 spaces, the Department of Environmental Protection wants 686, Patterson said, adding that the project is now in its sixth year of planning.

"More than a handful of brand-name hotel chains have walked away" because of the parking issue, he said.

So I just went back and researched some of the regulatory history of the Wildwood hotel project and the DEP CAFRA rules regarding parking.

It turns out, that the Corzine DEP already made major regulatory concessions to promote shore redevelopment by dramatically reducing parking requirements for new hotels and other commercial developments.

As Mr. Patterson or Martinique Resorts noted above and testified to the Red Tape Commission, developers hate parking requirements because they cost up to $25,000 per space and reduce the development intensity of income earning development (e.g. less square feet for profitable hotel rooms, and more for expensive parking).

DEP CAFRA parking regulations are far more stringent (i.e. require more spaces) than local parking under the Municipal Land Use Law (under formulas in the Residential Site Improvement Standards). 

Parking requirements are directly related to the public access issues. Simply, off site hotel parking displaces public parking required for beach access. Here DEP's reason for regulating parking:

N.J.A.C. 7:7E-8.14, traffic, contains the requirements for the movement of vehicles and pedestrians within the coastal zone. N.J.A.C. 7:7E-8.14(e) addresses the provision of parking to accompany coastal residential development. Adequate onsite or off-site parking for residential development ensures that on-street parking remains available for use by beachgoers, consistent with public trust rights, the Shore Protection Master Plan, and with the coastal goal regarding meaningful public access to and use of tidal waterways and their shores (see N.J.A.C. 7:7E-1.1(c)3).

I admit that I missed this DEP CAFRA rulemaking, but I don't recall any organized opposition to it. I failed to realize how huge a giveaway it was to developers and fully understand the significant relationship of parking requirements to the public access issues.

The Corzine DEP proposed new CAFRA rules that relaxed parking requirements in January 2009. The Corzine proposal, although delayed by the Christie regulatory moratorium under Executive Order #1, was later adopted in June 2010 by the Christie DEP.

Back in March 2010, I wrote that the 2009 Corzine proposal had expired, and it actually may have. I noted that at the Red Tape March 2010 hearing, DEP Commissioner Martin was embarassed by the fact that he was unaware of this issue, and he looked ill informed and unable to respond to the developer's testimony at the hearing. From the developers perspective, expiration of a Corzine rule proposal to relax DEP rules to promote development was an embarrassing example of why the Christie regulatory moratum was ill advised. 

Here is how a a major development consulting firm described the Corzine DEP's Jan. 2009 proposed relaxed parking rules.

WILDWOOD — For many years the,  parking requirements under the N.J. Department of Environmental Protection (NJDEP) Coastal Area Facility Review Act (CAFRA) regulations have made coastal redevelopment of hotels a difficult venture. These standards required as many as four parking spaces for each hotel unit – an overburden strangling the economic vitality of hotel redevelopment.

The Lomax Consulting Group, a local consulting firm, teamed with municipalities, local hotel owners, and the construction trades to establish reasonable design standards that balance parking needs with parking demands based on hotel unit size. Wildwood Crest Mayor Carl Groon indicated that he had approached the NJDEP to provide a more realistic parking standard that would foster urban redevelopment in the Wildwoods and to encourage hotels to replace room stock lost to condominium conversions.

Concurrently, the City of Wildwood went through a master planning process that identified limited zones in the community that encouraged redevelopment with hotels that would support the Wildwoods Convention Center, a $68 million facility designed to host and expand local tourism.

Peter Lomax, president of The Lomax Consulting Group, noted that, “The rule overhaul is a watershed moment for advancing redevelopment in the coastal zone. Having worked for decades on key economic development projects, like the Wildwoods Convention Center, a reasonable parking requirement puts in place the keystone for economic vitality – year-round rooms at premier resorts along our local coastline.”

So, the Christie DEP proposed public access restrictions share the exact same policy objective as the Corzine DEP - relax DEP regulations in order to promote shore access for developers!

But at least the Corzine DEP honestly and openly stated this policy objective in the original January 2009 proposal, with explicit mention of hotel and motel parking: 

Proposed N.J.A.C. 7:7E-8.14(e)2 provides that, with the exception of certain types of development specified in proposed N.J.A.C. 7:7E-8.14(e)2i through 2iii, the requirement to provide two onsite or off-site parking spaces per dwelling unit, currently part of the lead in language of N.J.A.C. 7:7E-8.14(e), applies only to dwelling units within one-half mile of an oceanfront beach or dune. Landward of this area, development will continue to be required to provide parking sufficient to serve the development's anticipated needs. This proposed amendment will protect on-street parking in the area within a reasonable walking distance from the oceanfront for use by beachgoers, while allowing flexibility in areas of some municipalities that border the ocean that are not as likely to be utilized for public access purposes. Dwelling units are defined in CAFRA and at N.J.A.C. 7:7E-1.8 to include houses, townhouses, apartments, cooperatives, condominiums, cabanas, and hotel or motel rooms.  

But, in a continuing pattern to obfuscate and avoid accountablity for its pro-development policies, the Christie DEP tried to hide the hotel and motel parking relaxation under the totally misleading banner of "changing" parking for  "residential development":   

The Department of Environmental Protection (Department) is adopting amendments to the Coastal Zone Management rules, N.J.A.C. 7:7E, to add Bader Field in the City of Atlantic City, Atlantic County, to the list of areas which, for the purposes of this chapter, are not considered bay islands; to allow future development of Bader Field to incorporate a public walkway in lieu of setting aside 100 foot wide area along the waterfront for future water-dependent use; to modify the list of protected street ends in the City of Atlantic City by adding additional street ends and opening other streets based on the in-flux of recent commercial and casino development; and to change the parking requirements for residential development in the coastal zone.

And in closing, funny, I don't recall an organized shore environmental group campaign against giving shore hotel developers a break on parking - a "watershed moment" according to developers  - which undermined public parking and beach access.

But, that kind of campaign would require a battle with powerful developers and criticism of a self described pro-environmental Democratic Administration.

Guess its a lot easier and safer battling shore towns and an anti-environmental Republican Administration.

I got mine jack,...

Lt. Gov. Guadagno Chairs Red Tape Commission public hearing at Montclair State.

In a remarkably vapid piece of reporting, the Star Ledger today writes a page one above the fold story (with huge photo!) about Lt. Governor Guadagno’s “image” in the Christie Administration and her “hurt feelings” at being boo’d and heckled during her William Paterson Commencement speech. (see: Lt. Gov. Kim Guadagno says her role is more than a ’stand-in’ for Gov. Christie

Aside from the likelihood that if a man ever wrote a story like that it would immediately be blasted as sexist, the story was amazingly fact free.

We’re fairly certain that the lobbyists for the Chamber of Commerce, Manhattan Institute, and other corporations are not meeting with the Lt. Governor to discuss her feelings or her “image” (or her blue outfits – even the story’s photo was empty and sexist. In comparison, our photos depict Guadagno acting in an official capacity, shot from the neck up ).

Is the Star Ledger not even curious about what those meetings entail and how they impact the people of NJ?

Is their state house reporter even capable of writing a policy piece?

Guadagno’s record as Christie’s “Red Tape Czar” is robust, and we have written about it here several times, and somehow never deigned to discuss her “image” or “feelings”.

You see, it’s a complicated story, but it all started here: Christie Regulatory Czar Given The Power and Tools To Rollback Environmental and Public Health Protections

So if any intrepid reporters out there are looking for substance to hold a female elected official as accountable as a male, see:

• “We Don’t Keep Track of Specifics”
• Now and Then (from Wallace to Christie) 
• The Dialectic of Red Tape 
• A Year When Slogans Masked Policy: “Red Tape” – “Commmon Sense Regulation” – “DEP Transformation” 
• Christie “Red Tape” Rollback Bills Re-Emerge – Backed by Democratic Legislators
• Red Tape Rollback Rolls at Montclair 
• Christie “Red Tape Review Group” Holds Final Public Hearing Tomorrow 
• Clean Water Held Hostage by Christie Moratorium
• Christie Rule Freeze Kills Drinking Water Standard for Chemical Found in Rocket Fuel & Military Explosives