Obama Chooses Former New Jersey DEP Commissioner Lisa Jackson to Head EPA

December 22, 2008
by BRUCE KATCHER
MGKF Special Alert

On December 15, 2008, President-elect Obama announced Lisa Jackson as his choice as Administrator of the U.S. Environmental Protection Agency (EPA). Ms. Jackson is very familiar to MGKF attorneys, who frequently worked with her when she was the Commissioner of the New Jersey Department of Environmental Protection (NJDEP), a position she held from 2006 through November of this year.

Before Governor Corzine named her as his NJDEP Commissioner, Ms. Jackson served first as Assistant Commissioner of Compliance and Enforcement (2002 – 2005) and briefly, Assistant Commissioner for Land Use (2005). Before coming to NJDEP, she worked at EPA for sixteen years, initially in Washington and then in Region II's Superfund and Enforcement branches. She has a bachelor's degree (Tulane) and master's degree (Princeton) in Chemical Engineering and has been a strong advocate of good science in agency decision-making.

As NJDEP Commissioner, Ms. Jackson made significant efforts toward making NJDEP operations transparent to the public. She has been commended by both the environmental and business communities for her willingness to consider all sides of an issue. As part of her transparency efforts, she held quarterly business and industry constituency meetings attended by all of the major state-wide business groups (our partner, Bruce Katcher, attended these meetings on behalf of the Chamber of Commerce Southern New Jersey), and to demonstrate her inclusiveness, she chose as Assistant Commissioner for Environmental Regulation the former director of environmental affairs of the New Jersey Builders Association, Nancy Wittenberg. Ms. Jackson promoted the establishment of a number of stakeholder groups to consider new regulations and policies, published an extensive agency action plan in 2007 and in 2008 established a permit efficiency task force to consider improvements in that area. Unfortunately, many of her reform efforts were hamstrung by workforce and funding reductions.

On the program side, Ms. Jackson undertook or expanded key initiatives in the following areas that may offer some insight on how she might direct the efforts of the EPA:

  • Global Warming - On her watch, (1) New Jersey became one of the first states to legislate significant 2020 and 2050 targeted reductions in greenhouse gas emissions and (2) NJDEP adopted a regulation designating carbon dioxide an air pollutant under the state Air Pollution Control Act and crafted a CO2 cap and trade regulatory system consistent with the Northeast States' Regional Greenhouse Gas Initiative (RGGI), of which New Jersey is a charter member. Further, NJDEP recently issued an extensive global warming action plan. We would expect that Ms. Jackson would likely support efforts by EPA to regulate greenhouse gas emissions under its existing regulatory authority.

  • Air Quality – Given that New Jersey has been a strong advocate of regulating interstate transport of fine particulate and ozone precursors under Commissioner Jackson, it seems likely that she will be sensitive to the views of states advocating stronger federal regulation of interstate emissions. Chris Ball, an MGKF attorney and former deputy attorney general with the New Jersey Division of Law and Public Safety, worked directly with the Commissioner on New Jersey's interstate pollution enforcement efforts and challenges to various EPA air quality rules (mercury, ozone and fine particulate) that she may look to modify upon assuming her position as head of EPA. NJDEP has also enacted a series of regulations (idling controls and engine retrofits) designed to regulate truck and bus diesel emissions in-state and this is another likely area of emphasis.
  • Water Quality/Land Use – A program to redesignate thousands of miles of surface waters to strict "Category One" (C1) nondegradation standards commenced by her predecessor was expanded under Commissioner Jackson, although an effort was made to enhance the scientific basis for these designations. This was combined with the adoption of strict new stormwater management and flood hazard regulations which restrict development along surface waters, especially along C1 streams. A strict new natural resource based regulatory regime in the Highlands also came to full fruition while she was Commissioner. As EPA Administrator, these steps, together with the anticipated use of land use controls as a means to limit global warming, could signal an EPA that would be more likely to use environmental regulation to control land use.
  • Solid Waste – Under Ms. Jackson, NJDEP has been a strong advocate of the recycling of industrial material and has worked to secure new funding to reverse the backsliding of municipal recycling rates that has occurred in recent years. Ms. Jackson also lead an initiative to enforce solid waste regulations against short line railroads that asserted that solid waste transfer facilities operated by them were exempt from state regulation on account of federal preemption and she supported recent federal enactment of legislation to curtail preemption in this area.
  • Site Remediation and Superfund – Reform of the state's site remediation program, which recently saw the assumption by EPA of the lead role in several state-lead Superfund cases, was one of the top priorities during the latter part of Ms. Jackson's tenure. While some administrative improvements have been made around the edges of the program, it is handicapped by staff shortages and an unmanageable caseload. The legislature is currently considering reform legislation proposed by NJDEP under Commissioner Jackson's direction to privatize a substantial portion of the case review function through a licensed site professional program. The legislation would also enhance NJDEP's authority to designate remedies for sensitive land uses (residential, child care, schools), signaling a greater concern with community based issues.
  • Natural Resource Damages – New Jersey has led the nation in seeking to recover damages to natural resources harmed by contaminated sites, primarily for the impacts associated with groundwater contamination. Though started by her predecessor, the program was continued by Ms. Jackson and has led to significant administrative expenditures while these claims, many of which are pursued in the state court system, are challenged by defendants, including several of our clients. Several of these state claims have been implicated in major federal Superfund cases, e.g., the Lower Passaic River Study Area Superfund site, and with an Jackson-led EPA, the NRD aspects of these Superfund cases may take on increased significance.
  • Brownfields – Commissioner Jackson has been a very strong advocate of economic revitalization through brownfields redevelopment, though sensitive to eliminating what some perceive as abuses of brownfield incentives that led to problems such as represented by the ENCAP bankruptcy. Efforts to expand community outreach were greatly expanded under her tenure. Our firm's recent involvement on behalf of the developer in a major redevelopment project to which Ms. Jackson devoted substantial attention confirms her willingness to bring together disparate interests to complete major remediation projects for the betterment of the community, her sensitivity to ensuring that brownfields projects are properly financed, and a desire that remedies are selected with due regard for sensitive land uses and community concerns.
  • Enforcement – Although conventional enforcement was an important aspect of the NJDEP under Ms. Jackson as it has been historically at the agency, as Assistant Commissioner for Enforcement she also led a series of novel urban multi-media enforcement "sweeps" designed to address environmental problems in inner city areas. Initially criticized by small businesses, the program evolved into a series of industry-targeted sweeps that had a significant compliance assistance aspect accompanied by significant advance warning of planned inspections. This program reflects an emphasis by Ms. Jackson on addressing environmental issues affecting the health of inner city residents. Ms. Jackson also promoted a self-disclosure program similar to EPA's. Although never formally adopted, this suggests a willingness to incentivize self-disclosure as an enforcement alternative.

In sum, we believe that many of the initiatives undertaken by the NJDEP under Commissioner Jackson's leadership are likely to become integral elements of the new directions expected to be taken by EPA in the Obama administration. How these initiatives fit with the economic recovery efforts will be of particular interest especially during the initial phases of the new administration.

If you have any questions about this alert, please contact Bruce Katcher at bkatcher@mgkflaw.com; (484) 430-2320.