Christie DEP’s Rollback Mission Is Hidden In Plain Sight

Former Governor Codey Asked The $64,000 Question

Top DEP Commissioner’s Aid Lied In Response

Connecting The Dots To Expose The Christie Agenda

What Bob Martin has done that is so insidious and unlawful is that he has incorporated Gov. Christie’s Exectutive Orders – and his own personal management and policy opinions – into enforceable DEP regulations.

At last week’s Senate Environment Committee hearing on a Resolution (SCR 180) that would declare a major set of DEP water regulations “inconsistent with legislative intent“, DEP Commissioner Bob Martin’s “Chief Advisor“ told multiple lies.

He did so to obscure two critical facts: first that the rules were intended and in fact weakened protections; and second, that they implemented Gov. Christie’s policies.

First, Cantor claimed – falsely – that EPA had backed off their opposition to the DEP’s proposal.

NJ Spotlight reporting proved that claim false, based on EPA’s explicit rejection of Cantor’s statements:

At the hearing earlier this week, Raymond Cantor, chief advisor to the commissioner, said after meeting with DEP on the proposal, the state had essentially resolved those concerns.

But a letter from the Region II EPA office yesterday suggested otherwise. “The proposed regulations have not changed,’’ wrote Joan Leary Matthews, director of the Clean Water Division. “EPA continues to have concerns as identified in our previous letter.’’  (see second EPA letter here)

It is simply amazing and unacceptable to have high level DEP officials misleading and lying to legislators like this. Yes, spin and obfuscation are routine, but flat out lies are unprecedented in my experience.

But the EPA issue was not the only lie or deception Cantor told the Committee – he also stated that no standards had been weakened, and that was even a bigger lie, as we’ve amply demonstrated multiple times.

Cantor also stated that the Gov.’s Office provided no direction to the DEP on the proposal; that the proposal was generated by DEP staff and based on Stakeholder input; and that the Stakeholder process was open and robust – all 3 of those claims are lies too.

Let me expose those lies in reverse order:

As Cantor surely knows, the DEP Stakeholder meetings are not open and robust, but are “by invitation only” as stated on DEP’s website. The invitees are overwhelmingly hand picked regulated industries or their consultants. Meetings are closed to the public, even for just monitoring the discussion.

As Cantor also knows, the Category One (C1) buffer rules have long been opposed by the builders, landowners, corporate office park, and entire development community.

And Cantor, a lawyer, surely knows that in 2006, the NJ Builders Association sued DEP to block the rules, which NJ Courts upheld. (wonks can read the Appellate Division’s opinion here)

As Cantor knows but withheld from the Senate Environment Committee, the C1 buffer rules were targeted by the Christie DEP Transition Report.

The C1 buffer rollback strategy is openly presented in the DEP Transition Report (see “Omnibus Rulemaking” on page 13)

• Reexamine buffer requirements in urban/disturbed areas and Planning Areas 1 and 2 designated for growth under the State Development and Redevelopment Plan (hereinafter referred to as the State Plan) as applied to wetlands, C-1 waters and potential Threatened and Endangered species habitat under Flood Hazard, Stormwater, and Wetlands rules.

But there is even a broader policy set by the Governor that is responsible for the DEP’s rollback that Cantor sought to obscure.

The Category One buffer program is not unique – so let’s get to the role of the Governor’s Office that Cantor denied.

Codey Pops the Question – Connecting the Dots to Gov. Christie’s Policy

During the Senate hearing, it was truly incredible to watch and listen to Cantor dissemble.

My favorite moment came when former Governor and current Senator Codey asked Ray Cantor, DEP Commissioner Bob Martin’s “Chief Advisor“ a point blank question about whether the “Front Office” has any role in the DEP’s rule.

After a rambling non-response, which triggered objections by Codey and Chairman Smith that Cantor was not answering the direct question Codey posed, Cantor flat out denied that the Governor’s Office had directed the Department on the rule.

Cantor insisted that exactly the opposite was true: that the rule was developed “bottom up” and a product of DEP professional staff recommendations and a robust stakeholder process.

That’s more nonsense.

The buffer rule rollback originates in the radical regulatory policy rollback set forth in Governor Christie’s Executive Orders #1 – #4.  Let me connect those dots.

Man on a (Rollback) Mission

Gov. Christie DEP Commissioner Bob Martin’s has fundamentally and unilaterally revised DEP’s mission – without legislative authority – and in a way that undermines all protections for public health and the environment and that conflicts with environmental laws.

How did he do this and how can he get away with that?

He did this in two ways:

First, he did so by incorporating the regulatory policies in Governor Christie’s Executive Orders #1 – #4 in DEP’s organizational regulations, NJAC 7:1 – et seq.

Second, Martin incorporated his own “Vision and Priorities” statement into DEP’s organizational regulations.

Here it is in black and white:

7:1-1.1 Mission

(a) The Department’s core mission is and will continue to be the protection of the air, waters, land, and natural and historic resources of the State to ensure continued public benefit. The Department’s mission is advanced through effective and balanced implementation and enforcement of environmental laws to protect these resources and the health and safety of New Jersey’s residents. At the same time, it is crucial to understand how actions of the Department can impact the State’s economic growth, to recognize the interconnection of the health of New Jersey’s environment and its economy, and to appreciate that environmental stewardship and positive economic growth are not mutually exclusive goals: the Department will continue to protect the environment while playing a key role in positively impacting the economic growth of the State.

(b) In order to implement the Mission, at (a) above, the Commissioner has issued a DEP Vision and Priorities statement, which is available at www.nj.gov/dep/about.html. The Vision and Priorities build on the principles set forth in Governor Christie’s Executive Orders 1 through 4 (January 20, 2010), available at www.state.nj.us/infobank/circular/eoindex.htm.

On their own, the Governor’s Executive Orders do not have the force and effect of law. To be enforceable, an executive branch “policy” must be authorized by the Legislature and adopted pursuant to rule making procedures of the NJ Administrative Procedures Act.

That means that even though Executive Order #2 says DEP shall provide “regulatory relief”, should not go beyond minimum federal requirements, must justify all rules by cost benefit analysis, and engage in an industry friendly “Stakeholder process” “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted”, legally that is really all rhetoric –  the underlying environmental laws and the Administrative Procedures Act legally govern and trump Christie’s EO policies.

But what Bob Martin has done that is so remarkably insidious and unlawful is that he has incorporated Gov. Christie’s Executive Orders – and his own personal management and policy opinions – into enforceable DEP regulation.

Legally, all DEP regulations must be authorized by the Legislature.

Additionally, as SCR 180 illustrates, the Legislature has the Constitutional power to veto any regulation as “inconsistent with legislative intent“.

It is my assessment that Commissioner Martin has no legislative authority to revise DEP’s Mission – or program regulations – based on Governor Christie’s regulatory policies and his own “vision”.

We are now witnessing the logical outcome of that Christie regulatory policy and Martin management “vision” in the various DEP “overhaul” regulations being proposed:

1) stream encroachment, stormwater, coastal zone management; (my analysis complete)

2) water quality management planning (public hearings and my analysis  forthcoming soon)

3) freshwater wetlands (“overhaul” upcoming, according to Bob Martin)

4) Highlands (overhaul upcoming according to Bob Martin)

Don’t say you haven’t been warned – and warned for over 5 years now.