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Power of the Purse Provides Opportunity to Hold Administration Accountable

DEP Budget Up In Assembly Tomorrow

Assembly passed Waiver rule veto. Will they stand by that and rise to the larger occasion?

You may not know it, but Governor Christie has used his executive authority essentially to rewrite and weaken all of NJ’s environmental laws.

So, let’s start with the politically obvious – framed by a recent AP story:

TRENTON, N.J. – New Jersey Democrats have an election-year issue that could make Gov. Chris Christie squirm , but they’ve been too divided so far to use it to their advantage.

Yes, Dems sure do have environmental issues to make the Gov. squirm –

[Q: Commissioner Martin, why did you withdraw and subsequently fail, as promised, to adopt a previously DEP proposed drinking water standard to protect pregnant women and young children from exposure to perchlorate, a chemical found in rocket fuel that scientists warn is harmful to pregnant women and fetuses?]

But  that Inquirer/AP story was about gun control.

And in writing that story, there was no hesitation by the media or political pundits to connect the dots between the Governor’s highly unpopular policy position and the partisan interests of the Democratic party and Gubernatorial candidate Senator Barbara Buono:

Christie’s re-election challenger, the mostly unknown Sen. Barbara Buono, is now trying to make gun laws an issue in the governor’s race, hoping to push the popular Republican into uncomfortable territory as he seeks re-election in his blue-leaning home state while stoking national ambitions to become the 2016 GOP presidential nominee.

Just like gun control, protection of public health and the environment is a very popular issue with NJ voters.

But unlike gun control, few know that Governor Christie has a very bad record on the environment (or that Senator Buono has been a longtime environmental champion).

[Q: Commissioner Martin, we note that you have some background in economics. So, when conducting cost benefit analysis required by Executive Order #2, how does DEP quantify the value of human life and disease and weigh them against industry compliance costs in crafting regulations?]

Worse, on top of his unpopular bad policy, the Gov. has deployed unilateral executive branch power to essentially rewrite NJ’s environmental laws.

[Q: Commissioner Martin, Governor Christie recently said that climate change was an “esoteric issue”  that he had no time to consider in Sandy recovery efforts, and that people “don’t give a damn” about anyway.  Do you share those views? If not, please describe how DEP considered climate change in coastal programs before and after Sandy, and describe the specific actions DEP has taken to implement the 2007 Global Warming Response Act.]

His unprecedented series of executive branch moves – via executive orders and DEP regulatory actions – have had the effect of essentially rewriting environmental laws and making new policy, thereby raising fundamental separation of powers issues.

Under our Constitutional scheme, the Legislative Branch writes the laws, makes policy, and backs that up with the power of the purse. The Executive Branch implements and enforces the laws and powers delegated by the Legislature – the Gov. can not make new law.

Examples of Gov. Christie’s abuses abound:

• Do laws enacted by the legislature authorize DEP to issue waivers?
• Do laws enacted by the Legislature require that public health and environmental protection be based on or subordinate to industry compliance costs outlined in a “cost benefit analysis”?
• Did the Legislature authorize a non-governmental private industry dominated body to control the scientific basis of DEP regulations, like safe drinking water standards?
• Did the Legislature delegate important clean water protections to local government?
• Did the Legislature direct DEP to exit the Northeast State’s Regional Greenhouse Gas Initiative?
• Did the Legislature establish a policy of providing “regulatory relief” from environmental and public health protections?
• Did the Legislature prohibit the Drinking Water Quality Institute from meeting?
• Did the Legislature define DEP’s Mission to include “promotion of economic development”?
• Did the Legislature pass a law or otherwise establish a policy to rollback or make NJ’s strict standards equivalent to or consistent with their counterpart federal minimums? That alone would reverse 30 years of NJ environmental leadership in passing some of the strictest laws in the nation. A bill to do just that was heard in the Assembly, but has failed to move, demonstrating little legislative support for the Governor’s actual policy expressed in Executive Order #2.

But despite no legislative authorization, Gov. Christie and DEP have done all this and more.

Will the Legislature continue to sit on the sidelines while the Governor abuses executive power and rewrites NJ’s environmental laws?

Thus far, the only Legislative pushback has come from a Concurrent Resolution (ACR 37 and SCR 59 (1R) ) declaring the DEP Waiver Rule inconsistent with legislative intent.

When that Waiver rule was adopted last year, the Philadelphia Inquirer reported:

“It is so vague that it opens the door to all forms of abuse, which will result in protections of the environment and public health taking a backseat to politics and economic development,” said Bill Wolfe, director of New Jersey Public Employees for Environmental Responsibility.

The Assembly version to legislatively veto the waiver rule passed last May by a 47-31 party line vote (R’s backing the Gov.), but the Senate version – co sponsored by Senator Buono HELLO! – is stalled and has not been posted for Floor vote, for many of the same political reasons as the gun control divide.

It is likely that the Legislature’s inaction in vetoing this rule was seen as a green light by the Appellate Division, who upheld the waiver rule in a March 21, 2013 opinion.

Despite finding the origin of the DEP waiver rule explicitly in Gov. Christie’s Executive Order #2, the Court nonetheless looked the other way, relied on a fig leaf highly questionable DEP assertion, and allowed the Gov. to implement his Order through DEP rules. The Court wrote:

Although acting almost immediately after the Governor’s mandate, DEP made clear that the agency was “not draw[ing] its authority to promulgate the waiver rules from Executive Order No. 2, but from its comprehensive legislation.” 44 N.J.R. 1001. Relying on this delegated legislative authority, DEP explained its reasons for proposing the waiver rules. …

We find the promulgation constitutes a valid exercise of the DEP’s implied authority incidental to the extensive powers vested in the agency by the Legislature. We also find the waiver rules establish appropriate and clear standards for the exercise of agency discretion.

“Implied incidental powers”? That’s right up there with “penubras and emanations”.

Or how about this statement by the Court, which has echoes of another infamous judicial standard: “we know it when we see it”:

“There are some concepts which, by their nature, defy precise definition.” In re Revocation of Access of Block No.1901, Lot No. 1, Borough of Paramus, 324 N.J.Super. 322, 332 (App.Div.), certif. denied sub nom. In re Access of Block No.1901 (Parkway 17 Assocs.), 162 N.J. 664 (1999). We consider “net environmental benefit” to be one of those concepts.

Could you imagine DEP imposing a new strict regulation on industry, mandating that all permits include a demonstration that the permittee has created “net environmental benefit“, all based on DEP asserted “implied incidental powers” that implement a concept that “defies precise definition”? Are you kidding me?

The Legislature has not acted to reverse the Appellate Division opinion and the case is now on appeal by environmentalists to the Supreme Court. Will that court concur with concepts that “defy precise definition”?

If the Legislature continues to fail to veto the waiver rule, it is likely that the Supreme Court also will view that as a signal of  concurrence with the court’s finding of “implied legislative authority” for DEP to issue waivers based on “concepts that defy precise definition”.

Getting back to the DEP budget.

The Senate Budget review hearing largely gave DEP a pass. That was expected, given the political leadership of the Senate (the failure to pass the Waiver Rule veto is just one indication).

So, tomorrow’s Assembly Budget Committee hearing on the Christie DEP’s FY’14 budget provides a crucially important opportunity to hold the Governor accountable to his record, while using legislative powers of the purse and oversight.

The Assembly passed the Waiver rule veto. Will they stand by that and rise to the larger occasion?

The Governor’s record provides a target rich environment – see:

• Metrics for Mr. Martin
• DEP Budget Up In Senate Tomorrow – Will Dems Give Gov. Christie And DEP Commissioner Martin A Pass?
• DEP Budget Hearing a Bust

1. Sandy Preparedness – 

DEP is required under the federal Coastal Zone Management Act to submit bi-annnual Reports to NOAA concerning, among other things, coastal hazard assessment (Section 309 Report). This DEP led assessment preceded and is in addition to DEP’s subordinate role in NJ State Emergency Planning via OEM. historically, this work was supervised by DEP’s Office of Coastal Planning, which was housed in the Commissioner’s Office, reflecting its priority and stature. That Office had embarked on a local government Pilot Program, known as the  Coastal Community Vulnerability Assessment Protocol (CCVAP) 

DEP Commissioner Martin dismantled all this, including officially downgrading coastal hazards from “high” priority to “medium”, thereby undermining State preparedness.

It is clear that lack of preparedness led to the AshBritt emergency contract for debris removal. Lack of preparedness also led to NJ Transit loss of over $100 million. There are others, including DEP’s neglect of a Pilot Program on Coastal Community Vulnernability Assessment adn DEP’s failure to monitor and enforce current rules on water infrastructure emergency planning. 

2. Implementation of the Global Warming Response Act  – climate change policy and performance including development of renewable energy (although the latter is an Energy Master Plan question better address to BPU)

The Global Warming Response Act was enacted in 2007. In 2009, DEP submitted a report with over 20 recommendations regarding how NJ could secure deep emissions reductions necessary to meet the goals of the Act.

DEP Commissioner Martin has dismantled all that.

3. Drinking Water – Status of the Drinking Water Qulaity institute and DEP promulgation of “MCL’s” (drinking water standards) recommended by DWQI scientists

The DWQI was created by the Legislature almost 30 years ago, and tasked with the exclusive role to make scientific recommendations on drinking water standards to DEP. The DWQI has not met for almost 3 years now, at the order of Commissioner Martin. He has ignored dozens of their recommendations to strengthen standards. Martin outsourced the DWQI science to the private SAB, a body that includes Dupont and others with severe conflicts of interest and scientific bias. 

4. Fracking

What is the Administration’s position on legislation to prohibit the processing of fracking residuals at NJ facilities?

What is the Administration’s position of the DRBC moratorium and DRBC regulations? Do you support adopting DRBC regulations that would end the current moratorium and open the floodgates to over 18,000 wells in NY and Pennsylvania portions of the Delaware River watershed?

5. Waiver rule

a) lack of enabling authority

b) executive branch usurpation

c) status of litigation

d) status of program

6. Alternate Dispute Resolution

a) is ADR program authorized by Legislation?

b) Is ADR program authorized by DEP regulation? DEP Guidance?

c) cases heard, settlements reached (list)

d) transparency and public involvement lacking

7. Regulatory Policy under Christie Executive Orders #1, #2, #3 and #4.

a) Role of the Executive Branch

b) consistency with Legislative intent 

c) conformance with enabling statutory decisions rules; and 

d) “regulatory relief” policy: balancing compliance costs and adverse public health and environmental impacts .

8. Science Advisory Board (SAB)

a) Role – examples of mission creep into policy and regulation, which is prohibited under the prior DEP Commissioner’s Order that created the SAB

b) Membership

c) conflicts of interest

d) Bias

e) lack of Legislative authorization

f) transparency and public participation

g) scientific integrity and peer review

9. Enforcement policy:

a) staff, budget, inspections (by program area)

b) violations

c) penalties assessed

d) penalties collected

e) referrals to the Attorney General’s Office

f) contested cases pending at OAL

10. Site remediation

a) Status of Licensed Site Remediation Professionals (LSRP) Program

b) # cases

c) # audits

d) # cleanups – permanent unrestricted use versus engineering and institutional controls

e) community involvement and transparency

f) Natural Resource Damages collected and mitigation