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<-- Return To SHRUBBED


Date: 28 Dec 2000
From: bill neil [email protected]

Dear Legislators, Conservationists, Citizens:

On Friday, Dec. 22, 2000, President Elect George Bush nominated Governor Christine Todd Whitman of New Jersey to the nation's top environmental job, Administrator of the US Environmental Protection Agency.

New Jersey Audubon feels compelled to speak out after participating intensively for seven years in many of the processes and proposals of her administration. We believe that the Governor of New Jersey is, by temperament, inclination, and management style, poorly suited for this position.

Below please find our brief essay entitled "Gale Warnings." In it we address the view of many that we could do much worse under President Bush than Governor Whitman. We believe that view to be "over-simplified fatalism." We also think the Governor gave us a revealing insight into the way she approaches regulatory matters with her statement in a recent interview that "...we'll lose to business, because they've got more gumption, more dollars to put behind efforts, more power to sway things..." We wonder whether this might not lead - has not already led - to two classes of citizens appearing and appealing to regulatory bodies. And offer a key insight as to why she has tried to weaken so many NJ environmental regulations.

Inside our essay, we try to give you the flavor and feel of what it was like to sit around the many "stakeholder" meetings convened under Governor Whitman, and we note that she never once, at least at the scores and scores of meetings we attended, ever showed up in person to tell us what she really thought. And some of these processes have dragged out for nearly half a decade - like the wastewater/watershed rules.

Enjoy. If you would like a hard copy, just give us a call at 908-766- 6446.

Bill Neil Director of Conservation (and "Stakeholder")
NJ Audubon Society

* * *



By William R. Neil, Director of Conservation

December 27, 2000

On Friday, December 22, 2000, President Elect George Bush nominated Governor Christine Todd Whitman of New Jersey to the nation's top environmental job, Administrator of the US Environmental Protection Agency.

New Jersey Audubon feels compelled to speak out after participating intensively for seven years in many of the processes and proposals of her administration. We believe that the Governor of New Jersey is, by temperament, inclination, and management style, poorly suited for this position.

We give all due respect to the Governor's achievements as a preserver of open space, the preservation of Sterling Forest in New York, and her 1,000,000 acre program, the idea for which originated in a policy memo drafted by New Jersey Audubon Society on March 4, 1996. But saving open space in a roll-of-the-dice pattern is quite a different thing than systematically controlling sprawl in New Jersey, where the Governor is visibly failing. That's because she has been quite content with a toothless, voluntary State Plan that lacks standards, leaving zoning and building densities in the hands of municipalities which won't zone to effectively protect even the most sensitive of the Garden State's natural resources. Essentially, Governor Whitman is turning her back on our own best land-use history. In our Pinelands, which have been shielded since 1980 by one of the nation's most innovative regulatory land-use systems, votes of the Commission overseeing its regulations now go 2-1 to weaken those protections, thanks to a spate of poor appointments by Governor Whitman. Saving open space is not, however, central to the mission of the USEPA, and it is the reluctance of Governor Whitman to build upon New Jersey's good tradition of land use regulation, that offers us a strong clue about what is to come and worries us the most about her appointment to the USEPA.

We appreciate the views of New Jersey's Senators and some national environmental groups who reason that, given President- Elect Bush's environmental record and views, we should consider ourselves fortunate to have a moderate on the environment - we could do much worse, they say. While this certainly is a plausible position to take on the rather grim prospects for the environment under President Bush, we respectively disagree with this rather over-simplified fatalism.

Because of our first hand knowledge and experience under Governor Whitman, we feel that we must issue "gale warnings" to our representatives and the national environmental community. The primary mission of the USEPA is to issue regulations and standards governing the amount of pollutants that can be legally discharged to our air and water and to protect human health from at least some of the myriad of chemical products that appear in the marketplace. EPA also has important oversight duties concerning the regulation of wetlands. Thus regulatory concerns are at the heart of the matter. But it is on regulatory issues that Governor Whitman has serious philosophical and practical problems. It is her attempts to weaken wetlands and water regulations that have caused the greatest uproar in New Jersey. She herself set the stage for struggles in these areas by coming into office with barely disguised hostility toward environmental regulations. The code words used in the fall campaign by President Elect Bush - "command and control" - were heard early and often in the first years of the Whitman administration.

Her Administration spent a great deal of time promoting the Dutch model of environmental regulation which, among much else, sets long term goals and gives businesses the freedom to pick the methods. It sounded so good, until one stopped gazing at the Dutch "heavens" and focused on the ground-level attempts in Washington (the Contract with America and Congressman Schuster's "Dirty Water" Bill) and Trenton to weaken water pollution standards. We said it at the time and we worry about it for the nation's sake now: while everyone sat around Whitman's "stakeholder's" tables pretending they had no big differences and promising not to sue each other (at least that was the Governor's hope), sophisticated lobbyists for industry were hellbent on ripping out the floorboards of our national and state protective standards. While the Governor held a soothing green umbrella over the processes, reassuring the public of her commitment to environmental protection, and stressing the need for efficiency and cutting red tape, water and wetland protection standards were actually being weakened.

It was not as if clues were missing for what was about to unfold. The water battles had been preceded by other policy initiatives that should have given friends of the environment pause. As David Halbfinger wrote in the New York Times on December, 26, 2000 ("Two Grades, One Record," pps. 1& 26.):

...she cut its budget (NJDEP) by 30 percent and laid off hundreds of workers. She ordered that state regulations be no more stringent than federal rules. And she cut inspections, eliminated penalties and introduced grace periods for violators, to the point that collections of environmental fines plunged 80 percent.

Adopting the motto "Open for Business," Governor Whitman eliminated the environmental prosecutors Mr. Florio had introduced, and replaced a public advocate's office, which had at times sued the state on behalf of environmental groups, with a business ombudsman's office to guide businesses through the permitting process. And she sought to move away from punitive measures toward voluntary compliance. (P.26)

There has been a predictable pattern in Governor Whitman's handling of environmental regulations. It began in early 1996 with the publication of a massive rewrite and weakening of water-related regulations, running to hundreds of pages in the February 5, 1996 issue of the New Jersey Register. The scope and sophistication of the technical changes and weakenings placed comprehension of the proposal out of the reach of most citizens. Thus began a long battle of official denial of increased pollution, op-ed and letter-to-the- editor debates and gradual retreat and withdrawal of the proposal for re- write under a growing storm of public protest, as the technical and "legal" cover for the weakenings was exposed. The same process, on a smaller scale, happened with the December 2, 1996 publication in the New Jersey Register of revisions to New Jersey's Fresh Water Wetlands Protection Act rules, the nation's strongest. Again, a storm of public criticism led to the rules withdrawal. They would re-emerge, four years later, in the summer of 2000, in a massive re-write that stretched to hundreds of pages, much larger than the original, and again have come under a hail of criticism that they are poor revisions and loaded with new General Permits that trouble conservationists.

Most recently, this year, as the culmination of a process that has dragged out since 1996, Governor Whitman's wastewater and watershed rule proposal, again running to hundreds of pages, was greeted with nearly universal incomprehensibility this past summer. Builders, the state Business and Industry Association, and municipal officials, all asked for more time to understand a rule that they had had months to digest. And with all the legal and technical help money can buy, they were still not sure they understood how the rule worked - or didn't work. This was for a rule that was supposed to help control sprawl and lend itself to predictability and certainty in the crucial policy area of wastewater infrastructure planning. Much of the environmental community, while lauding the Governor's goals, found the rule much too weak and lacking in the clarity and standards necessary to achieve this goal. As we write in December, the NJ Legislature is on the verge of declaring the proposal out of step with Legislative intent, very broadly defined. Our view is that despite having had nearly 4 years to decide what she wants to do, Governor Whitman has once again made nearly all parties dissatisfied and still has not made up her mind on key policy calls that are necessary to end its utter confusion.

That was what led us to make our "osprey" comparison. The osprey is a new Marine Corps hybrid aircraft that is both plane and helicopter, but which seems to do neither one very well, and crashes frequently. It looks like it has a design "identity crisis." So does Governor Whitman when it comes to environmental regulations. These are not good omens for someone heading into the top job at EPA.

Neither is the fact that the Governor keeps quite a distant, hands- off approach to these matters. In the four years of the watershed process, involving scores of meetings with stakeholders, the Governor never set foot in any of the meetings. In the first wetland regulations' revision proposal, when it was withdrawn under withering criticism in 1997, the press accounts made it sound like the terrible rule must have been issued under some rogue administrator from a different administration, not her very own at the New Jersey Department of Environmental Protection. It was as if she was totally unaware that her own DEP Commissioner was publishing gutting regulations that she would later have to disown. There seemed to be no connection, no responsibility. Indeed, throughout the numerous meetings we've attended through the Whitman Administration's massive regulatory revision processes, we don't ever recall seeing the Governor attend, sit down once and get her hands dirty and share her thoughts and ideas with all the suffering stakeholders. It may be one reason why these have been, despite her soothing sounds and wishes, time after time, rather fruitless stalemates that leave participants with a bitter aftertaste. And, we should note, these have ended in stalemates after conservationists have exhausted themselves in blunting the worst of the weakening provisions.

We have heard quite of few comments recently about how Governor Whitman has protected New Jersey's coast. We think you should know that her revisions of New Jersey coastal law (called CAFRA) started out pretty well, weakened year by year as they dragged out between 1997-1999, and have ended with both builders and environmentalists suing on grounds so convoluted that they make the recent election issues in Florida seem straightforward. And the Governor flatly refused to campaign with us to get the Legislature to close an infamous coastal law loophole, which greatly compromises the effectiveness of the regulatory changes she proposed. Time after time on major environmental issues, this Governor has refused to take up any issue that might give her a difficult road in the Legislature.

Recently, in an interview with the Star-Ledger, (December 20, 2000, "Terms of Triumph and of Frustration," page 32, ) the Governor spoke some revealing and troubling words about her views of those that will be competing before her at EPA, and have been competing in the policy arena before her as Governor for the past 7 years. She said that

If you let it be seen that you can only have an either/or, we'll lose to business, because THEY'VE GOT MORE GUMPTION, MORE DOLLARS TO PUT BEHIND EFFORTS, MORE POWER TO SWAY THINGS. We've got to show that we can strike the balance, and we've done that and done that successfully. (Our emphasis).

Now that's a marvelously revealing comment, and one that troubles us for someone heading into EPA. We thank Governor Whitman for her candor about who has more power and money, which is a frank and correct observation about this political era, as advocates for campaign finance reform never cease in telling us. But as for gumption, defined as courageous or ambitious enterprise, as opposed to just shrewd common sense (from the context it seems the governor meant courage and ambition), we can only note that based on the state of the environmental community in NJ over the past ten years, we might forgive her for this observation. That was not always the case however, because it took a lot of gumption to get the Pinelands legislation and the nation's toughest wetlands protections passed, in 1979 and 1987, respectively. Since then, on land-use regulatory tools, the state's gone South and West with a vengeance.

But it also seems that this is a clear personal and philosophical preference with a troubling implication: one can't oppose business interests on major regulatory or legislative matters and it's futile to try, we guess even when it's in the public interest to do so. And on some matters of great importance at the EPA involving questions of human and ecosystem health, it is often necessary to impose substantial costs on business interests. Notice we didn't say always or in every situation. But this Governor's preference is clear, and it can well lead to a lack of necessary objectivity - objectivity which the EPA Administrator post demands.

We think that the Governor's attitude translates all too easily into two classes of citizenship and standing before the regulatory bodies. We said as much in watching her Administration give the cranberry growers of New Jersey the go ahead to destroy 300 acres of wetlands even though more than 90% of the written comments from the public opposed her General Permit proposal and the industry was facing a known supply glut. Not only has her stance on this permit sanctioned the unnecessary destruction of wetlands, now taxpayers at the state and federal level now are kicking in some $73 million dollars to aid price-stricken growers and landowners in the cranberry industry, when it was the industry's own relentless pursuit of expansion which caused their market to crash. Because of massive amounts of campaign contributions and the fact that the heads of the regulatory agencies are political appointees, we testified bluntly in 1999 that the environmental community implicitly did not have equal standing before the agencies considering the proposals.

We do think, however, that plenty of gumption was on display when one of the state's largest political donors and cranberry growers, A.R. DeMarco Enterprises, Inc. was accused of filling 22 acres of wetlands without obtaining a permit so that he could expand his cranberry bog operations. New Jersey's new Inspector General issued (November, 2000) a very critical report on New Jersey's proposed settlement of this, the largest freshwater fill in the law's history. And this under a DEP Commissioner who was trying to do something very generous for a industry to which he had very close ties. Governor Whitman had no problem with this, and never replied to our letter asking her to withdraw the permit because of Commissioner Shinn's conflicts of interest. This also has some troubling implications for the role that she will play at EPA.

Similarly, in the face of overwhelming citizen opposition, the Governor has given her full support to the biggest proposed wetlands fill in the Clean Water Act's history in the Northeast, more than 200 acres to be filled to allow a new massive new shopping mall to be build in the Meadowlands (Meadowlands Mills), just outside New York City. Here the common sense of citizens is on sounder ground than the Mills Corporation's marketing experts: "just what New Jersey needs," citizen after citizen sarcastically remarked at the public hearings, "another shopping mall." The Governor just can't seem to see that the EPA chief needs to bring a healthy skepticism to the table about some of the business community's proposals. When we see how the cranberry industry has wrecked its own market, driving small growers under, and the trends in energy "deregulation" (where are those three consecutive years of lower prices we were all promised when it was being marketed in New Jersey?), we wonder whether the Governor knows that the bloom is off the rose of the era of deregulation?

We would be unfair to the Governor and to environmental history in New Jersey if we didn't mention and thank the Governor for her rapid protection of the horseshoe crab from over-harvesting. Her actions stand in stark contrast to the horrendous anti- environmental positions of Virginia's Governor James Gilmore III, who stonewalled, year after year, in limiting his state's harvest of the horseshoe crab, before he finally relented this past year - the last holdout on the eastern seaboard.

But the full context of Governor Whitman's action on the horseshoe crab issue needs to be stated. The business interests supporting continued massive harvesting were, by comparison to other issues, a narrow segment of public opinion, truly a special, special interest. So there was no huge political or financial fall-out to her decision. Compared to the financial stakes linked to decisions she will have to make at EPA, this was, as the saying goes, a "piece of cake."

We conclude with a plea to our Senators, to our delegation in Congress: be forewarned on what the Whitman record, relevant to EPA's regulatory mission, has been in New Jersey. We wonder aloud whether we would not rather face someone going to EPA who was an upfront, open regulatory "gutter." Now we hope that we are wrong about what Governor Whitman will do at EPA, but we think our officials and our colleagues at the national environmental organizations are just a bit rosy eyed if they think, based on the historical record we have laid out, that this is a happy choice to head the federal EPA. We sincerely hope that Governor Whitman realizes the implications of her new role and does an about face from her regulatory history in New Jersey. But the record really cannot support that optimism.

So if you see that inviting green umbrella go up, or hear talk of the Dutch model, our advice is to get your magnifying glass out and legal funds ready, and brace yourselves for grand regulatory revisions - with stealthy weakenings buried deep within. And all done, mind you, with a gracious smile and long denials that anyone so environmental friendly would even consider such actions. Gumption indeed.

William R. Neil
Director of Conservation

* * *

NJ Audubon Society
POB 693
Bernardsville NJ 07924
Tel: 908-766-5787
Fax: 908-766-7775

<-- Return To SHRUBBED

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