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Attempt to avoid “chaos” created by Court decision

Legislature moves to restore status quo on public access

[Update and Notes below]

Taking the Riverline into Trenton this morning, I was thrilled to see two bald eagles perched side by side at the top of a tree near their nest in the Trenton-Hamilton marsh. Awesome! Although I pass the nest regularly, I’d never seen them both so clearly before.

And when I got to Trenton for what I assumed would be a last day of the legislative session symbolic dog & pony show before the Senate Environment Committee in response to the December 22 Appellate Court decision striking down DEP’s public access rules, I saw even more extraordinary and unusual things.

First off, DEP Commissioner Martin was there early and eager to testify – I think this is only his second appearance before a legislative committee in his 6 year tenure (aside from annual budget hearings).

[Note: Commissioner Martin refiused numersous requests to testify before the Senate Environment Committee. Yet Chairman Smith gave Martin a complete pass for this gross pattern of intransigence. But when Martin requested a special hearing, he got it unconditionally granted by Smith. Bad move.]

Chairman Smith opened the hearing by saying that Commissioner Martin had called him (and unnamed environmental leaders) yesterday to say we have an emergency situation as a result of the Appellate Division decision striking down DEP’s regulations for lack of legislative authorization.

Smith agreed that this was an emergency that justified immediate introduction and passage of a bill – in the next 72 hours before the end of the session – to “avoid chaos” in important coastal programs. Smith said he would not allow any amendments but would listened to testimony. (S3321 – the bill would amend CAFRA and the Waterfront Development Act to authorize DEP to regulate public access and require access, either on-site or off site – text not available electronically yet.)

Smith said he had spoken with Senate President Sweeney and the bill was already on the Senate board list for Monday, the final day of the session. Smith said Martin told him that he had spoken with Assembly Speaker Prieto and presumably the bill was greased there as well.

Martin then testified that the court decision jeopardized significant public access programs, including a threat by the US Army Corps of Engineers to suspend beach replenishment and coastal dune construction.

Senate Van Drew, a co-sponsor of the bill, then appeared to testify, at which point Smith joked of the need for “a defibrillator”!!

[Note: Via this remark, Chairman Smith had no problem making it very clear that he does not agree with Sen. Van Drew. Yet Smith failed to do the same for Christie Cabinet member DEP Commissioner Martin. Another bad move that show weakness.]

It was surreal.

Evocative of Naomi Klein’s shock doctrine, but a bill is being rammed through merely to retain the status quo. Since the status quo regulatory framework was defined by the Christie Administration and is seriously flawed, obviously this is not ideal. By claiming that an “emergency” exists, Martin avoids critical scrutiny and a public debate on the Christie public access policy. How convenient!

Chairman Smith then pledged to create an Ad Hoc Stakeholder group in the new Legislative session to re-examine the DEP’s public access rules and new legislation to revise them.

I question whether such a group could ever produce a consensus or whether their recommendations would produce legislation that would advance the public trust doctrine and expand public access, including strict legislative standards on essential elements like pre-emption of municipal powers over beaches, closing loopholes to assure that all facilities are included in the program, and requirements to provide parking, restrooms, and financing for off-site access.

There were minor objections by the Chamber of Commerce, who asked to weaken the “feasibility” standard for providing public access by adding the word “appropriate”. Smith rejected that, no amendments.

The NJ Business and Industry Association also raised objections and asked for an amendment to exempt Homeland Security designated critical infrastructure. Smith rejected that as well and admonished Sara Blum to get her act together and better coordinate with her Chamber of Commerce colleague.

The attorney for the Hackensack Riverkeeper & NY/NJ Baykeeper – the plaintiff in the lawsuit that created the problem – testified, but failed to understand Chairman Smith’s direction. She asked for amendments. She claimed that the bill would NOT reinstate the DEP 2012 CAFRA rules (as expected by DEP and legislators) and did not address all the issues ruled on by the Court.

After her testimony, echoing my “Pyrrhic victory” characterization, Chairman Smith quipped: “Always remember: be careful what you wish for”, which drew laughter from the audience who understand how ridiculous the testimony and legal challenge were. Both groups now have zero credibility.

But I don’t find it funny – I think it is outrageous that Riverkeeper and NY/NJ Baykeeper were so incompetent in launching the legal challenge that produced the Court’s opinion.

After brief testimony by many supporters of public access, including coastal and bayshore Mayors, and the Committee approved the bill unanimously.

I had not planned to testify when I signed up to support new legislation in concept (a bill was not even available).

But after I heard the lawyer for the plaintiff disagree that the current DEP rules struck down by the Court would be restored via passage of the legislation, and thinking about that for a moment, I decided to make one procedural point.

The Governor and DEP have emergency rule making powers.

While I oppose the DEP’s rules, I advised that in order to eliminate any legal ambiguity that might invite another lawsuit, DEP should adopt the current rules via emergency rule making procedures.

More to follow, before this new public access/public trust Ad Hoc Stakeholder process kicks off.

[Embarrassing endnotes:

1. I like Senator Codey, but today he made a revealing and perhaps the dumbest remark I can recall – this is what he said:

My fear is that if we don’t do something, chaos will result.

People will be running though people’s yards and saying I have beach access.

I think we all want beach access – but unregulated? Absolutely not.

WTF is he smoking? Does he really think the hordes of bennies will descend on the mansions of Mantoloking?

2. Speaking of dumb and embarrassing moves, check this one out:

Before the hearing began, I struck up a conversation with the gentleman sitting next to me. I began by noting the unusual appearance by Commissioner Martin. I recalled the only two times he had appeared. The gentleman seemed to question that claim, so I cited the 2 specific hearings and he stood down. I then noted that the Christie Administration was taking the issue very seriously and getting out in front of the issue and framing the debate.

I then asked who the gentleman was representing – and he introduced himself as Bob Consodine, head of DEP Press Office!!

Yikes! Totally humiliated, I then introduced myself –  and he immediately and curtly said he knew who I was! ~~~ end ]

[Update – 1/8/16 – 

1. This “emergency legislative” strategy is not without legal risk.

By DEP requesting and the Legislature passing and Gov. signing a new law, they are confirming the Appellate Court’s ruling that DEP lacked legislative authorization to regulate public access under CAFRA and Waterfront Development laws.

Currently, there are hundreds or perhaps thousands of CAFRA and/or waterfront development permits with public access conditions.

If DEP lacked legal authorization to impose those conditions, they could all be invalid, subject to appeal and not enforceable.

2. The prudent approach would be for DEP to file an appeal with the NJ Supreme Court and exhaust the judicial process.

It is highly unlikely that the US Amy Corps would abandon coastal projects or federal funding during a judicial view process.

During the appeal process , there would be time for the legislature to consider amending and strengthening the current laws on Public Trust doctrine and public access issues, including specific standards and policies.

Only if the Supreme Court refused to hear the case or affirmed the Appellate Court should DEP and the Legislature acknowledge a lack of existing authority.

The “emergency” approach only invites more ultra vires challenges.

3. The “emergency” is manufactured in order to dodge accountability and frustrate democratic debate. ~~~ end update.]