WolfeNotes.com

While all the ENGO lobbying and media focus was on the fracking wastewater ban bill in the Senate (S-253), flying under the radar, two important but highly technical bills that would implement recommendations of Governor Christie’s Red Tape Commission were released by the Assembly Regulatory Oversight Committee.

The first, A 1521 (Burzichelli, D- Oil & Chemicals), under the guise of minor administrative reforms across state government, would make a significant structural change to the current regulatory and enforcement framework, and thereby weaken DEP’s powers to implement and enforce all environmental laws.

While the bill would apply to most State agencies, there is little doubt that DEP is the target of the legislation.

Under current law, regulated entities can challenge DEP permits and enforcement actions administratively through the Office of Administrative Law (OAL).  Upon filing an appeal,  an Administrative Law Judge (ALJ) hears the “contested case”, takes testimony, reviews briefs and makes a decision. However, the DEP Commissioner is the final decision-maker. The Commissioner can accept, reject, or modify the ALJ’s opinion.

Control over the final administrative decision by the DEP Commissioner is important, because ALJ’s often lack the scientific and technical expertise to correctly interpret the environmental laws and regulations involved in specific DEP permit or enforcement decisions. Those decisions are as much scientific and technical as they are legal decisions.

In contrast, A1521 would make the ALJ the final decision-maker, stripping the DEP Commissioner of important powers.

I testified and cited 2 recent ALJ opinions as to why the bill would have unintended consequences, invite even more litigation, and threaten DEP permit and enforcement powers.

Both ALJ decisions were wrong. The first was reversed by former DEP Commissioner Lisa Jackson. The other – on the same issue – was approved by current DEP Commissioner Martin (more to follow on those ALJ opinions, but if you are interested, you can listen in here. Mike Pisauro of NJEL also testified and raised concerns about the ALJ final decision provision).

Indicators that reveal the rollback policy agenda and interests backing this bill are:

• the bill grows out of Gov. Christie’s Red Tape Commission, whose objective is to eliminate “job killing Red Tape”, provide “regulatory relief”, and promote economic development;
• the bill was supported by the NJ Petroleum Council, NJ Chemistry Council, NJ Chamber of Commerce, and NJ Business and Industry Association;
• NJ builders and developers attorney Michael Hluchan supported the bill, because he said his clients get “screwed” by DEP and they oppose giving DEP head another bite at the apple; and
• the Senate sponsor is ALEC Chairman Senator Oroho (there is no Senate version yet introduced this session, but last year’s Senate version  sponsored by  Oroho).

It sure looks like the polluters and developers think they can get better deals at the OAL than the DEP – thus, the bill is sure to prompt more challenges to DEP permits and enforcement actions. The result: more red tape, more litigation, more delay, less environmental protection.

The second bill, A 1524  is less significant. It would revise the Administrative Procedures Act with respect to resolving conflicts or inconsistencies between the regulations of various state agencies.

The bill tracks one ground for granting a waiver in the DEP waiver rule – conflicting rules.

The bill goes even further to require an elaborate process for rules that conflict or are inconsistent.

Those vague standards and the elaborate conflict resolution approach of the bill would create even more gridlock in the rule making process, which is already a resource intensive and cumbersome exercise.

[Note: here’s an example: when I worked on the C1 stream buffer rules, Department of Agriculture staff opposed those efforts and insisted that in certain soils and slopes, that the requirement to maintain a 300 foot buffer free of storm water outfalls would create erosive conditions that conflicted with soil erosion and sediment control regulations. DEP disagreed, and said that in the event of that conflict, that the project could be scaled back, the site plan redesigned, or the storm water management scheme  reengineered. We won that debate. Under the bill, the C1 buffer rules would not have been proposed and adopted.]

The bill would be used as another roadblock to adoption of much needed DEP regulations and provide a basis to challenge those rules. The resolution of any conflicts and inconsistencies would like result in sacrificing environmental protections to rules that promote development or reduce burdens on polluters.

The bill also encroaches inappropriately on the Executive branch’s prerogatives, and thus represents a legislative incursion that may rise to a violation of separation of powers.

Both bills were approved by unanimous votes of the Committee and are now before the full Assembly.