LSP Bill Unconstitutional, Environmentalists Call for Governor to Veto

For Immediate Release
Contact: Jeff Tittel, Chapter Director April 8, 2009 (609) 558-9100

LSP Bill Unconstitutional, Environmentalists Call for Governor to Veto

The Eastern Environmental Law Clinic has sent a letter to Governor Jon Corzine on behalf of the Sierra Club and the New Jersey Environmental Federation explaining why the LSP bill is unconstitutional. The letter went on to say that because the bill is unconstitutional, it has to be vetoed. The letter was hand delivered Saturday.

The LSP bill sets up a dangerous system for hazardous site cleanups. It delegates police powers to private individuals and limits state agencies from protecting public health, safety and property. It precludes the executive branch from enforcing the law.

"This bill is unconstitutional and unconscionable. It takes away the government's ability to protect us and instead protects the polluters," said Jeff Tittel, Director of the New Jersey Sierra Club.

Under this legislation, the DEP forfeits its authority to oversee cleanups of contaminated sites and to certify that they are clean. Instead, that authority will be delegated to private consultants that are hired by polluters and who have limited liability. This is a clear violation of the State Constitution's "Separation of Powers" clause because the constitution says it is unlawful to delegate to private parties functions of the state.

"This bill rejects case law, that's quite clear," said Dave Pringle, Campaign Director of the New Jersey Environmental Federation. "It's unconstitutional for the state to delegate police powers to private consultants on polluters' payrolls and prevent the AG from going after them when they've done wrong."

This legislation also impedes the state's ability to protect "Public Health and Safety" as set forth in the Constitution. The LSP law allows for these private consultants to deviate from state requirements on cleanups of hazardous materials. Because the state does not have proper oversight of these consultants, the Public Health and Safety Clause of the Constitution is violated. According to a 2006 report of the Massachusetts program, more than 70 percent of the contaminated sites had serious cleanup and reporting errors. More than half the sites had additional contaminated material on them.

This legislation also undermines the state's ability to exercise its authority of various state cleanup laws, such as ISRA and the Spill Act. It further limits the review of state agencies over these cleanups since it is the paid consultant that oversees, investigates, and certifies these toxic sites as being clean. The licensed site professional, who is paid by the polluter, certifies the cleanup work plan of the polluter. DEP will not be involved in certifying the cleanup work plan. Because of this, the law violations oversight and agency review and limits the agency's decision making capabilities.

The bill violates the "Separation of Powers" clause since decisions made by the LSP legally bind the state agencies to those decisions. It further violates the Separation of Powers because it provides the LSP with a covenant not to sue. Only the state's Attorney General can decide when and who to sue. These decisions by the LSP are final and limit "judicial review."

"This bill does not ensure adequate clean-up where kids live, learn and play and adequate safeguards against polluters who have a financial stake in doing the wrong thing," Pringle said. "If that's not reason enough to get the Governor to fix this bill, certainly complying with our constitution's separation of powers clause and prohibiting the delegation of police powers to protect public health and safety should be."

This legislation further takes away the "Right of Judicial" review not only for affected parties, but for the public or adjoining property owners. These concerned parties will have no ability to get a proper review or appeal the LSP decisions, whether to a commissioner, administrative law judge or any other body which you could under an NFA or a permit.

When Lisa Jackson was asked by Senator Barbara Boxer at her confirmation hearing, "Is the LSP program a program you would support nationally as head of EPA?", Lisa Jackson's answer was an emphatic 'no'.

"This bill violates the fundamental relationship between government and its citizens," Tittel said. "It is a radical departure from how government is supposed to work in order to protect public health and safety as well as the environment. Back in 1997, this legislation was rejected by Governor Whitman, Commissioner Shinn and the Republican State Senate. A bill that is this dangerous must be vetoed."

Kara Seymour, Program Assistant NJ Sierra Club

145 W. Hanover Street Trenton, NJ 08618

609.656.7612

(f) 609.656.7618

<http://www.newjersey.sierraclub.org> www.newjersey.sierraclub.org

Received on 2009-04-08 08:34:14

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