Think Before You Litigate – Public Access Lawsuit Blunder Now Apparent

The debate over public access to the shore and inland rivers has been re-engaged by the Christie DEP’s proposal of new rules yesterday intended to respond to an Appellate Court decision that found that DEP lacked legislative authorization to regulate public access requirements.

We have not yet reviewed the DEP proposal, but pending that review want to talk about the mistakes that got us to this point.

NJ Spotlight has a slanted story on the DEP proposal that leaves out how and why we got to this point and simply does not mention the strategic blunder made by the NY/NJ Baykeeper and Hackensack Riverkeeper in their lawsuit that forced the issue, see:

• DEP PROPOSAL COULD REIGNITE BATTLE OVER BEACH, SHORELINE ACCESS

The lawsuit argued that DEP lacked legislative authority to regulate. The Court agreed.

In challenging the Christie DEP’s rollback of Corzine DEP public access rules, the environmentalists could have argued that the Christie DEP rules violated law by abdicating DEP’s public trust obligations by delegating control over public access to local governments. That would have taken the issue of State versus local power head on and been a strong defense of the public trust doctrine.

But they didn’t – instead they argued that DEP lacked legislative authority to regulate. They cowardly ducked the primary issue of local versus state power on the shore.

Did they think about the real world implications of success of that legal attack? What would happen if the Court struck down DEP’s rules for lack of legislative authority?

That legal attack and the Court’s agreement with it sent the issue to the legislature, requiring that they pass new public access legislation.

New legislation requires the signature of the Governor.

Did they think that Governor Christie would sign legislation that was broader in scope and more stringent that his own DEP’s weak regulatory initiative?

Of course Christie would veto any bill passed by the Legislature that was stronger than his own DEP’s rules.

The Democrats do not have the votes to over-ride the Governor’s veto, so the Gov. dictates the public access policy.

That’s why the legislature was duped into passing weak emergency legislation that basically codified the Christie DEP’s rules that were struck down by the Court.

As political cover for that surrender by Legislators, Senate Environment Committee Chairman Smith set up a Stakeholder group and tasked them with coming up with consensus recommendations for new public access legislation.

Of course there was no consensus reached – a consensus model gives business community and local government opponents of public access an effective veto over policy.

Those same groups on Smith’s Stakeholder group have significant political power to shape legislation and force compromise.

Which brings us back to the huge blunder that NY/NJ Baykeeper and Hackensack Riverkeeper made in their lawsuit.

Because by taking the public access issue away from DEP and regulatory power, they forced the issue into the Legislature.

By doing that, they handcuffed a future Governor and future DEP Commissioner from adopting stronger rules or simply re-adopting the Corzine DEP rules that were rolled back by the Christie DEP.

The next Governor must get a public access bill through the Legislature.

We are now witnessing the Legislative gridlock that the business community and shore local government interests can generate, effectively exercising veto power.

And even if the gridlock is ultimately broken by a Democratic majority, any bill that does pass will be a compromise (just read Smith’s Stakeholder Report to see how that compromise would be crafted. Good luck in “working out the details“.).

There is no way the legislature will pass a bill that was as broad and strong as the Corzine DEP rules.

And the Appellate Court decision and emergency legislation responding to it raise new legal questions about whether the public access requirements in thousands of existing DEP permits are enforceable. If DEP lacked legislative authority to regulate public access, as the Court found, then maybe all those permits with public access requirements are illegal too.

So, the next time the public access issue comes up, think about who is to blame – and to my environmentalist friends, think before you litigate.