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Bill Would Strip DEP Commissioner of Final Decision When Polluters Challenge DEP Actions

Will Democrats Provide Cover For More Christie Rollbacks?

[Update: 12/9/13 – Glad to see this, exactly what we asked for:

N.J. Senate panel slashes bill empowering administrative law judges

[Important Correction and Update on today’s Committee hearing below]

Flying under the radar, under the guise of minor streamlining reforms to arcane administrative practices, a bill up in Trenton today would make a major public policy change that would weaken the enforcement of all State environmental laws, and raises potential conflicts with federal law as well.

The bill, a recommendation of Gov. Christie’s “Red Tape” Commission to rollback regulatory protections, would significantly shift the balance of power in favor of polluters by stripping the DEP Commissioner of the power to make final decisions in administrative challenges to DEP permit and enforcement actions.

[Correction: I went back and re-read the 2 Red Tape Commission Reports. While they made numerous bad policy recommendations, technically, the did NOT recommend the AJL final decision provision of this bill. The April 19, 2010 initial Red Tape Review Group Report found this:

… the Red Tape Review Group is sensitive to the fact that the suggestion raised by these witnesses to remove final agency determination on the preliminary decisions of Administrative Law Judges proposes a substantial departure from the existing  principles of governmental authority.   … such a reorganization of authority implicates a substantial shift of regulatory authority away from the Executive Branch. As such, the Red Tape Review Group believes that this issue must be examined further.  (@p.21-22)

and therefore recommended:

Amending current law to mandate that the decisions of Administrative Law Judges be considered “final agency action” in contested cases is not being recommended at this time; however, a series of immediate reforms to the system of administrative adjudications should be implemented.

The subsequent Feb. 8, 2012 Report did not address the issue.

My apologies for mis-stating the Administration’s position. The statement on the Assembly version is misleading on this issue, by stating that “some” of the provisions of the bill were based on the Red Tape Report.  – end correction.]

The public was shut out of these administrative challenges by a law that restricts what is known as “third party standing” – so the bill deals with an administrative forum that exclusively deals with attacks on DEP permit and enforcement actions by regulated entities, i.e. polluters and developers.

[For example, lets say DEP issues a permit for a development or pollution source next door to your home. You could submit comments on the draft permit, but could not legally participate in the administrative challenge to this permit by the developer or polluter. The Administrative Law Judge in such a case would only get legal briefs and testimony only from the polluter/developer and DEP. Your facts and opinion are irrelevant. This makes your comments on the draft virtually meaningless. In contrast, in a real court of law, you and environmental groups could intervene in the case as an “amicus”.]

By weakening DEP’s power in that arena, the bill would systematically weaken all DEP permit programs, because DEP would be  reluctant to impose tough permit or enforcement actions that they would lose in administrative challenges. The bill would invite even more friendly forum legal challenges by polluters to DEP permits and enforcement actions, further weakening protections across the board.

The bill is a subtle and sophisticated stealth attack on DEP as an institution and on the enforcement of environmental laws. There are highly complex, controversial, and unpopular rollbacks in administrative procedures that would never see the light of day if drafted as bills that made direct attacks on the environmental laws themselves.

Instead, the Governor and his polluter backers use  back door stealth measures to dismantle the regulatory apparatus needed to administer and enforce environmental laws.

The bill is part of a systematic dismantling of the environmental regulatory arena, as set forth under a series of sweeping Executive Orders signed by Governor Christie. One day after his November 2010 election, the NY Times reported Christie promised rollbacks – and did so in the first hour of his first day in Office – masked by the use of slogans, like “job killing red tape” and “common sense regulation”.

Christie’s first hour moves included a regulatory moratorium (EO#1); radical new policy of “regulatory relief” (EO#2); formation of the Red Tape Rollback Commission (EO#3); and restrictions on “unfunded state mandates” (EO#4).

Since then, Gov. Christie has used executive power to advance a devastating across the  board attack on DEP and environmental laws, including: 1) installing a business executive with no training or experience as DEP Commissioner; 2) budget cuts; 3) diversion of $1 billion environmental funds; 4) privatization, outsourcing, and delegation of core DEP responsibilities to private entities and local governments; 5) deregulation; 6) enforcement policy shift to voluntary compliance and technical assistance ; 7) rollbacks to key policy plans, like the Energy Master Plan, Water Quality Management Plan, and State land use plan, and inaction in updating and strengthening  others, like the Water Supply plan; 7) appointments of cronies to policymaking positions; and 8 ) even pension and benefit rollbacks to force senior DEP professionals into retirement, without replacement, a brain drain that has virtually hollowed out DEP as an institution.

We testified in opposition and previously wrote about the bill here and here.

The proposed Senate version (S2555) is slightly different than the Assembly version, which quietly passed the Assembly in April (A1521[1R]) with no debate – both versions of the bill are up before the Senate State Government Committee today.

Gubenatorial candidate Senator Buono is on that Committee – she was a member of the Christie Red Tape Commission but resigned in protest when their rollback agenda became apparent.

I have worked with Buono to do damage control on other Red Tape bills, so it will be interesting to see how she handles the issue today and whether her fellow Democrats on that Committee and in Senate leadership back her up (e.g. Sweeney, Weinberg, and Environment Committee Chair Bob Smith and member Whelan, who also sits on State Government).

Politically, the Democrats can use this as a good issue to contrast Buono’s pro-environment leadership with Governor Christie’s systematic attacks and rollbacks of environmental protections.

Recently, Buono has used Christie’s climate change denial as a campaign issue – will her Democratic colleagues support that effort, or blow an opportunity,  throw her under the bus and provide cover for the Governor?

Below is a letter I fired off to urge Buono and Senate Democrats to block this bill:

Senator  Buono – The Senate version of Assemblyman Burzichelli’s Red Tape bill, S2555(Van Drew), is up tomorrow in Senate State Government Cmte.

The bill purports to make minor procedural administrative reforms – but one provision of the bill is a significant policy change that would undermine protections of public health and the environment.

Section 2.g. of the bill  provides that the decision of an ALJ will be the final decision in all contested cases. Current law vest the Agency head with final decision authority in contested cases before OAL.

The bill would significantly change current practice, whereby the DEP Commissioner makes the final decision in affirming , modifying, or rejecting an ALJ’s decision in a contested case.

The bill is bad policy, as many contested DEP cases are decided based on facts and regulatory policy, not law. The DEP Commissioner, backed by DEP expertise, is a more appropriate person to find facts and make a final decision in an administrative setting, as compared to an ALJ’s decision, e.g.  see: Conective – B.L. England Generating Station v. NJDEP  OAL Docket NO EEQ 6086-06)

http://lawlibrary.rutgers.edu/collections/oal/final/eeq6086-06_1.pdf

In that case, NJ DEP Commissioner Lisa Jackson found:

“The Initial Decision found that the issue presented here concerns the interpretation of 42 U.S.C. 7661 et seq., which establishes the Title V permit program, as well as the DEP ‘s regulatory requirements controlling operating permits and conditions of their approval. The ALJ concluded that the inclusion of a heat input limitation as an express condition of B.L. England’s Title V permit was improper because it constitutes a new substantive condition that was not authorized by Title V; it would be unfair because the imposition of this requirement could not be predicted based on the Department’s rules; it is in conflict with the emissions limits of the permit because it “nullifies B.L. England’s ability to meet the upper limits of the emissions limit of its permit[;]” DEP ‘s failure to include an express heat input requirement in its regulations requires the conclusion that heat input was not intended to be included in permits as an operating parameter; and the use of heat input as a “tool” to control emissions represents a new agency strategy that replaces old operational limits and, as such, requires formal rulemaking.        

These conclusions appear to rely in large part on the ALJ’s acceptance of B.L. England’s claims that heat inputs are informational only, have never been regulated and can be increased while maintaining emissions “well below its permitted. limits.” 4 Thus, the Initial Decision in effect concludes that hourly heat input limits are not properly imposed by the permit or the regulations and are irrelevant to the establishment and enforcement of B.L. England’s longstanding emission permit limits.

I reject the ALJ’s conclusions because I find that the hourly heat input limitations in dispute here are regulatory requirements which were properly established as conditions of B.L. England’s pre- construction permits and operating certificates, and that these limits were properly carried forward to the Title V permit.

Parties to an OAL contested case are almost always regulated entities, who rarely – if ever – represent the public interest.

Accordingly, an ALJ is almost always reviewing challenges to DEP permit and enforcement actions by regulated entities. The public lacks standing to intervene in these cases, as a result of a law enacted during the Whitman administration.

We need to retain the DEP Commissioner’s final decision to protect the public interest.

Otherwise, the OAL process will be tilted further toward private special interests.

The bill’s supporters have not provided factual justification for the bill to support such radical change. Most ALJ decisions are affirmed by the DEP Commissioner. Importantly however, there have been important cases where ALJ’s have made serious errors that were corrected by the DEP Commissioner’s final decision.

We ask you to oppose this bill or support amendments that would strip DEP from Section 2.g. 

I am available to clarify.

Bill Wolfe

[Update – small victory!

After over-reach by polluters is exposed, bipartisan concerns suddenly emerge!

The bill was held by the Committee. The Chairman indicated that Committee members had concerns and amendments  were being considered to Section 2.g! You can listen to the hearing here – scroll down to Senate State Gov. Cmte.

I assume that the Republican members of the Committee could not support the bill, because they cited Gov. Counsel’s constitutional concerns about separation of powers.

I assume that Senator Buono also could not support the bill, but she ducked out of the hearing when the  bill was called to respond to the Gov.’s announcement of Senator Lautenberg’s replacement. While that is a far bigger political fish to fry, I see this as a missed opportunity for Buono to defend the environment and provide contrast with the Gov. on environmental issues and regulatory policy. The fact that the bill is sponsored by Dems and that the Red Tape Reports do not specifically call for ALJ final authority makes that a more risky stretch, however.

Jeff Tittel testified in opposition. He made good points about separation of powers issues by vesting power in an unaccountable ALJ, as opposed to Executive Branch Cabinet members, who are politically accountable to the voters and legislative oversight. Tittel also spoke about conflict with federally delegated and/or funded programs and the NJ DEP/US EPA MOA. He threaten to seek federal revocation of delegated programs if the bill were to pass.

Surprisingly, Tittel did not mention or criticize the Gov.’s record or the sponsors of the bill. He instead claimed that the bill originated not in the Red Tape process, but was a recommendation by the American Legislative Exchange Council (ALEC). That is not implausible, because as I previously wrote, the bill’s original sponsor in the Senate was Oroho, who was appointed by Christie and served on the Red Tape Commission and he also is NJ ALEC Chair. Oroho has taken his name off the bill and the current Senate sponsor is Van Drew, a  Democrat and in Assembly, Burzichelli, also a Dem.

The Association of Counties also opposed the bill because it would conflict with federal regulations and jeopardize federal funding for various welfare programs.T

As expected, the bill was supported by the NJ Chemistry Council, NJ Builders Association, NJ Business and Industry Association, and Chamber of Commerce.

I was pleased that Hal Bozarth attacked my testimony as “rhetoric” – always fun to get under Hal’s skin.  – end update]