DEP Emergency Rule Violates Law
Gov. Did Not Declare An Emergency And There Is No “Imminent Peril”
DEP KNOWS That Proposal Is DOA Before A NJ Court Or Will Suffer Legislative Veto
We need to provide a brief background and context on the Murphy DEP flood rules (sorry, no link, because no rules have been publicly released, as far as I know).
On December 3, 2018, Murphy DEP proposed new flood rules that actually weakened the existing Christie DEP rules (which had previously been weakened by the Christie DEP).
We criticized that proposal, which was so bad it was even blasted by FEMA in a January 13, 2019 letter, for, among many other things, failure to consider climate change see:
In response, a year later – which was over 2 years ago – NJ Governor Murphy directed DEP to integrate climate change in certain DEP regulations.
On January 27, 2020, Gov. Murphy issued Executive Order #100:
The DEP shall, within two years of the date of this Order and consistent with applicable law, adopt Protecting Against Climate Threats (“PACT”) regulations. The PACT regulations shall […]
Integrate climate change considerations, such as sea level rise, into its regulatory and permitting programs, including but not limited to, land use permitting, water supply, stormwater and wastewater permitting and planning, air quality, and solid waste and site remediation permitting.
Since EO 100 was issued, DEP has been engaged in many months of “Stakeholder meeting” negotiations on these rules, dubbed “PACT”.
DEP embarked on a “resilience” planning initiative and DEP Commissioner LaTourette made many public statements about these rules that were praised by NJ “environmentalists” and favorably reported by the NJ media.
Over this 4 year period, DEP issued thousands of land use permits, probably hundreds in known flood hazard areas, putting more people and property in harms way.
During this 2 and a half year period, no one ever mentioned any “emergency” or “imminent peril” or need for DEP to adopt “emergency regulations”.
The Gov. never issued an emergency declaration authorizing and directing DEP to adopt emergency rules.
The DEP Commissioner never set a deadline or even established a rulemaking schedule (or calendar), as required under the NJ Administrative Procedure Act.
Yet, out of the blue, last week, DEP announced that they would be adopting emergency flood rules.
In a brief June 2, 2022 post, we immediately smelled a rat:
“Emergency” rules are effective on proposal in the NJ Register (prior to the standard notice and comment and response to public comment rulemaking procedures under the NJ Administrative Procedure Act).
DEP has engaged a “Stakeholder” process on these rules for over 2 years.
Impossible to justify them on an emergency basis.
I suspect that the Murphy DEP (the Commissioner is a former corporate lawyer) could be procedurally sabotaging their own regulations, allowing the Builders to sue and win on procedural grounds. This seems like a clear procedural violation to me – DEP can’t just declare an “emergency” – either the Gov. would have to issue an emergency declaration or objective facts on the ground would be required to justify an actual emergency condition. …
That also could explain the selective briefing – highly unusual, very political, and very poor policy to brief the environmentalists prior proposal of rules, with no briefing provided to other important parties, like the League of Municipalities. A judge would look to crap like that in striking a DEP rule down.
DEP could then say “We tried” and paint the builders as the bad guys.
Apparently, the NJ business community agrees. The next day, in a June 3, 2022 letter to Gov. Murphy, they blasted the DEP emergency rulemaking procedure.
The letter laid the foundation for both a legal challenge in NJ Courts and a political challenge for a Constitutionally authorized legislative veto of the DEP proposal as “inconsistent with legislative intent” (that’s why the letter copies legislative leadership on a bipartisan basis).
The Business groups wrote:
While the Administrative Procedure Act (APA) does allow for rules to take effect immediately, there must be an imminent peril to public health, safety, or welfare. There is no imminent peril and, thus, no reason to deviate from the normal rulemaking process.
The business groups are correct, as we previously noted. This is a legal no brainer. It’s not even a close call. A slam dunk loser for DEP.
The DEP emergency rule is DOA before a NJ Court and DEP knows that.
The DEP Commissioner is a former corporate lawyer and he knows that.
The Gov.’s Office (and AG’s Office), who had to sign off legally on the DEP emergency rule knows that.
And if a NJ Court of law doesn’t strike the rule down, the Legislature will exercise its Constitutional power and veto the rule as “inconsistent with legislative intent.”
Then, DEP Commissioner LaTourette can say “we tried” and blame the big bad NJ Builders Association for killing the rule.
See how that works?
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