DEP Creates Sham Process To Cover Legal Defects in Christie Orders

In a sham move, months after the fact, DEP just “reopened” the public comment period on the dozen (12) environmental rules blocked by the Christie Moratorium in Executive Order #1. But the sham “comment period” is not a public comment period at all! And it masks a blatantly illegal process overseen by the “Red Tape Review” Regulatory Czar.

These 12 DEP rule proposals are under review by the Regulatory Czar and can be vetoed by the “Red Tape Review” process and new “common sense principles” created by  Executive Order #2.

“Common sense” is the cynical slogan that masks controversial new Christie policies to require polluter friendly “cost/benefit analysis” and reverse 35 years of NJ environmental leadership by seeking to rollback NJ’s strict State standards to federal minimums.

DEP’s web page notice advises of a series of upcoming informal “Stakeholder” meetings next week, and a 15 day public “comment period”.

Both are transparent and deeply cynical moves to attempt to paper over glaring legal defects in both Executive Orders # 1 and #2. I guess DEP is trying to avoid repeating the embarrassment Christie suffered after a NJ court struck down his Executive Order that created a moratorium on COAH rules (see Ex. Order #12).

It looks like the lawyers at DEP now do what they are told instead of what is lawful and legally required. Unfortunately, such unprofessional and unethical practices are consistent with recent abuses at DEP, where science has been deeply politicized. Now law is as well.

But because federal environmental laws are involved, there is no way US EPA will allow Christie’s moratorium or Regulatory Czar to block adoption of DEP rules required to  implement federally delegated and/or funded programs under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act, and Coastal Zone Management Act.

Similarly, EPA will veto Christie’s attempts to impose cost/benefit requirements on federal programs where costs are not allowed to be considered, such as in setting standards under the Clean Water and Clean Air Acts.

For the wonks out there, here are my preliminary comments to DEP – we’ll keep you posted, particularly on the EPA front.

I categorically oppose each and every one of the twelve (12) proposals listed as “Comment Period Extension and Informal Stakeholder Meetings for Red Tape Review of DEP Proposals” for the following reasons:

1) the Department’s notice and comment procedure; the informal stakeholder process; and the Red Tape Review Task Force Process created by Executive Order #2 do not comply with the rulemaking requirements of the NJ Administrative Procedure Act (NJ APA). Web posting and reliance on the authority of Executive Orders 1-3 can not supersede or replace NJ APA requirements. All 12 proposals were proposed pursuant to and in accordance with the NJ APA requirements. The Department may not – after the fact – revise these procedures.

2) The Department’s web post states the following:

“[Note:  The Department prefers electronic submissions in order to facilitate timely review of comments to meet the timeframes for action in the Executive Orders.]”

The time restriction (i.e. time frame for action pursuant to Executive Orders 1-3 and the Red Tap Task Force review process) can not replace or supersede the requirements of the NJ APA. The March 15 deadline is arbitrary and not in accordance with NJ APA requirements.

3) The substantive requirements of Executive Orders 1-3, particularly the requirements to conduct cost/benefit analysis (CBA) and to consider CBA as a basis for regulatory decisions is ultra vires and not authorized by either the NJ APA or the enabling authority pursuant to which each of the 12 rules were proposed.

4) The “reopening” of the public comment period and retroactive application of new procedures, standards, and decision criteria established by Executive Orders 1-3 is ultra vires, not authorized by law, and inconsistent and in violation with law. This includes the NJ APA requirements as well as the enabling statute for each rule proposal.

5) The Department’s application of the provisions of Executive Orders 1-3 to the subject rule proposals would violate the procedural and substantive requirements of federal environmental laws and the delegation agreements under which NJ implements federal laws.  These laws include, but are not limited to the Safe Drinking Water Act, Coastal Zone Management Act, RCRA, Clean Water Act, and Clean Air Act.

The same violations arise by the Department’s after the fact “reopening” of the public comment procedure in which this comment is submitted as part of.

6) The “reopening” process and the provisions of Executive Orders 1-3 violate federal funding agreements and the National Environmental Partnership Performance Agreement (NEPPS). The Department mad not substitute the provisions of EO and the Red Tape Task Force review process for the requirements of federal law, regulation and funding agreements.

7) Based on 1-6 above, I strongly urge the Department to withdraw this sham “reopening of the public comment process”. Surely, the Department realizes that this “reopening” process is not in compliance with procedural notice/comment requirements of applicable law.

8) Surely the Department knows that the “common sense principles”, standards, criteria, and informal process established by Executive Orders 1-3 are not authorized by law, can have no legally binding effect, and expressly  violate state and federal law. Accordingly, I request that this “proposal” be withdrawn.

9) The “Red Tape Review” process is an informal process that is not on the record. This process is not transparent and not authorized by law. In may not be considered or relied upon in any way for final agency regulatory decisions regarding the subject rule proposals.

No information considered or decisions reached during that process may be considered as part of the administrative record of the subject rule proposals, and none of it can be relied on as a basis for final regulatory decisions by the Department.

10) The Stakeholder process announced by this proposal is an informal process that is not on the record. This process is not transparent and not authorized by law. In may not be considered or relied upon in any way for final agency regulatory decisions regarding the subject rule proposals.

No information considered or decisions reached during that process may be considered as part of the administrative record of the subject rule proposals, and none of it can be relied on as a basis for final regulatory decisions by the Department.

Based on the above, I request that the Department withdraw this proposal and abandon this process.

I reserve the right to revise and extend these comments. By submitting these comments, I in no way mean to state or suggest that this is a legal procedure. I strongly protest this procedure as patently illegal.

Sincerely,

Bill Wolfe, Director
NJ PEER