Last Day Lame Duck – Bad Bills Moving Under the Radar

[w/Update below]

Monday (1/9/12 ) is the final day of the 2010-2011 legislative session.

I checked the Senate and Assembly Board lists and noted  several bad bills that are posted for final approval.

• DEP Waiver Rule

Equally bad to the bills posted is what is not.

Senate President Sweeney and Assembly Speaker Oliver failed to post the “DEP Waiver rule” Resolution (SCR239/ACR206) that would declare that DEP waiver rule inconsistent with legislative intent and begin the process of either blocking its adoption of legislatively vetoing it.

Here’s what the Star Ledger said about the DEP waiver rule:

By itself, the DEP’s proposed “waiver rule” is perhaps the most dangerous, overreaching and potentially corrupting document in Trenton. It is the nuke that would give the Christie administration near-unlimited power to set aside decades of hard-won environmental protections for … any reason it wants.

… The waiver rule is written with such vague language that it could be used to overrule any environmental rule at any time for any reason. It is an audacious move by Gov. Chris Christie, the single greatest threat to decades of work to protect New Jersey’s air, wildlife and water.

In addition to the substance of the waiver issue, failure to post the Resolutions is a huge political setback and another indicator that the Democratic leadership in Trenton is just as hostile to the environment as Governor Christie.

Senator Buono, with the backing of environmental groups, had put a lot of energy into the issue. Buono created an on-line petition that got thousands of signatures and generated considerable pressure on Senate President Sweeney.

Unless there is some horse trading or last minute procedure to amend the Board lists and get these Resolutions passed, this obviously is a setback to her leadership efforts and another example of Sweeney’s support for – or refusal to challenge – Governor Christie’s policies.

It also highlights the importance of regulatory policy and the efforts of the Christie Administration to use regulatory tools to subvert environmental laws and legislative powers.

DEP Commissioner Martin must view this as a green light to adopt the proposal, and his rollback agenda is emboldened by the failure of the Democratic leadership.

• Commercial Logging State lands – Dirty Water

Other bad bills that are up on Monday include the commercial logging bill (S1954[2R]/A4358[1R]) and dirty water bill (S3156[1R]/A4335 ACS).

For good reason, these two bills have gotten the priority attention of environmental groups and media.

But flying under the radar are the following bad bills, which attack arcane but highly significant regulatory practices.

Significantly, they are sponsored by Senator Oroho, who is the NJ member of the right wing Koch Brothers’ funded American Legislative Exchange Council (ALEC) :

• Regulatory Flexibility (A2129/S1336)

We wrote about that bill here – I will not rehash the arguments, so hit the link for information (Regulatory Flexibility Bill A Formula for Gridlock and Rollback

[Update: Business community view:

Laurie Ehlbeck, state director for the National Federation of Independent Business, said members of her group would like to see Christie maintain his approach to cutting regulations. She hopes such efforts will build on the Regulatory Flexibility Act expansion that was advancing at the end of the legislative session in January.]

• Contested Cases – Strip DEP Commissioner of Final Decision Power (S2666/A2722)

This bill would change the current practices regarding final decisions in contested cases taken to the Office of Administrative Law (OAL). It applies to virtually all state agencies, but I will discuss just the DEP aspects.

In most cases, before a legal challenge can get to a court, the challenger must first exhaust all administrative remedies and secure “final agency action”.

So when a polluter or developer challenges a DEP rule, permit, or enforcement decision, she/he must first go to the Office of Administrative Law (OAL), where a trial like hearing is held before an Administrative Law Judge (ALJ).

After hearing the evidence, the ALJ then issues an opinion in the case.

But, under current law, the “final decision” to agree with and accept or reject the ALJ’s opinion rests with the DEP Commissioner.

The DEP Commissioner frequently overrules the ALJ’s decision, and for good reason.

First of all, often these cases raise important statewide regulatory policy issues that are far broader and more significant than the individual controversy in the case that is before the ALJ. The DEP Commissioner is in a better position to balance individual case specific justice and the broader public interest.

Plus, the polluter/developer can appeal the DEP Final decision to a Court of law, so their due process rights and the interests of justice are protected.

In other OAL cases, the ALJ may not fully understand or have misinterpreted complex scientific and/or technical issues that an ALJ is not competent to analyze. In those cases, the DEP Commissioner is in a far better position to make the final decision.

This bill would reverse all that and make the ALJ decision final.

That would invite even more administrative appeals of DEP rules, permits, and enforcement decisions and result in more successful attacks on environmental protection and enforcement of envirommental laws.

The bill is a subtle but across the board assault on environmental protections and should be opposed.

[Update:

• Oil Spill liability cave – S2108

A bill drafted in response to the Gulf of Mexico oil blowout, that would appear to eliminate the cap on liability for oil and chemical spills, is up as well.

While some may see this as a positive, don’t fall for the Trenton Kabuki.

Make no mistake, it illustrates a total collapse by legislators – on a bipartisan basis – to the powerful lobbyists of the chemical and oil industries.

The introduced version of the bill was serious but the final version is now a corrupt and cynical joke.

Legislators gutted the bill by exempting inland oil and chemical facilities and narrowing the bill to spills ONLY from a drilling platform!. There are no and never will be any drilling platforms in NJ or off the NJ coast)

So if an oil tanker spills in the Delaware River – or a chemical plant blows up and kills nearby residents, they will have their liability capped at only $50 million.

For the ugly details on all that, see:   Gulf Blowout Prompts NJ lawmakers to Seek Increase In Polluter Liability To $1 Billion