Beach Access Debate Is Bullshit And A Diversion From Climate Change and Real Ocean and Coastal Issues

Absurdity

NY/NJ Baykeeper Praises The Corzine DEP CAFRA Public Access Rules – The Same Rules The Group’s Lawsuit Convinced The Courts That The Christie DEP Lacked Legislative Authority To Adopt

I decided that this year it wasn’t worth the carbon emissions to drive down to Toms River for the annual Joint Legislative Environmental Committees summer hearing on the shore.

The origin of the event is linked to Superstorm Sandy, but the roots are in Gov. Corzine’s Shore Summit: “Confronting Climate Change in New Jersey“, which was held on September 25, 2006.the Gov. Corzine’ 2009 Mid Atlantic Governor’s Agreement on Ocean Conservation.

After a promising start and some solid substantive legislative oversight of DEP – including controversial Sandy oversight – over the years the joint Legislative event has devolved into a joke – a political dog and pony show and excuse for a party (key legislators have shore and Barnegat Bay homes, a conflict they never disclose as they make coastal policy).

Nothing new in that political ploy:

The context for this year’s [2012] hearings is framed by another year of stinging jellyfish and growing threats of ecological collapse and harmful algae blooms in Barnegat Bay –

But even far more serious problems lay buried beneath the radar. …

For example, the recent Monmouth County water pipeline break was a perfect illustration of NJ’s multiple vulnerabilities to global warming – extreme weather, storm surge, sea level rise, coastal hazards, infrastructure, and climate change adaptation.

The joint Legislative Committees will not focus on any of that – instead, their hearing agenda is very narrowly crafted.

This year, I emailed in my testimony, which is certain to be ignored (just as my testimony at the hearing would have been, if history is a guide, by the Committee and the media).

But I do need to respond to how the media is reporting the hearing and narrowing focusing on – and missing – the public access debate and public trust doctrine issues.

As usual, in virtually all complex policy issues, they are getting the story badly wrong and completely missing the point that the beach access issue is a diversion from dealing with real serious ocean and coastal issues and huge failures by both the Democratic controlled legislature and the “Rebuild Madness” Christie Administration.

For example, see this recent article by one of NJ’s best investigative reporters, Jeff Pillets of the Bergen Record, which was one of the very few news stories to discuss the State’s long term economic cost obligations of the federal beach replenishment program, and the fact that those costs and the beaches are not sustainable and therefore support a policy of “strategic retreat”, see:

Legal fees mount as N.J. dune battle drags on

“The costs, the whole idea of perpetually replenishing a beach, is simply unsustainable,” said Norbert Psuty, a retired professor from Rutgers University who has spent his life studying shifting sands.

Psuty said excessive development along the shorefront and bays prevents natural forces that build and reshape dunes and their tendency to migrate toward the land.

“The beach, the dunes, are always moving and reshaping themselves,” he said. “In the short term you can do patch work, you can move people out of harm’s way. But in the long term you’re not going to be able to survive.”

Let me explain why the whole event today – and the news coverage – is total bullshit:

Public Access problem the result of Pyrrhic legal victory by environmental groups

In this Politico story, it is remarkable that Deb Mans, head of NY/NJ Baykeeper, praised the Corzine DEP public access rules. (aside from the undisclosed fact she worked for the Corzine Administration as the Governor’s environmental policy advisor – a gross bias that needs to be disclosed):

“One of the things that the 2012 rule did was set a really high bar before you triggered public access,” Mans said. “Before if you had an expansion of the footprint or you were rebuilding your bulkhead you would trigger a public access … If you couldn’t provide for it on-site you would have to do it off-site.”

Mans was right to oppose the Christie DEP public access rule. It was very bad and it repealed a far better Corzine DEP rule.

But Mans successfully sued to block the Christie DEP rule, so first of all, we need to understand the legal attack and unintended results of that lawsuit.

That lawsuit made a radical “ultra vires” legal argument that DEP LACKED LEGISLATIVE AUTHORITY TO REGULATE TO ENFORCE THE PUBLIC TRUST DOCTRINE.

That legal argument also claimed that DEP lack legislative authority to provide or require financial compensation for off site public access if a facility could not provide on site access.

How can Mans now praise those rules if DEP lacked the power to enact them?

How can she praise Corzine DEP rules for requiring provision or finance of off site access if she eliminated DEP’s legal ability to require provision of compensation for off site access? HELLO!

NJ/NJ Baykeeper’s lawsuit filed by Ms. Mans created the current problem – she made radical anti-DEP legal arguments that even the strongest opponents of DEP’s public access rules – i.e. the shore towns, Marinas, Chamber of Commerce, NJBIA, and NJ Builders Assc. – would never even try to make!

This is a classic example of A Pyrrhic victory

If you want to understand the arguments with links to court decision et al, see:

NJ Court Decision Striking Down DEP Coastal Rules Is A Disaster For Public Access and The Public Trust Doctrine

On top of all that, following the Court’s decision striking down the DEP rules for lack of legislative authority, Senator Smith had huge leverage and he absolutely blew it by passing emergency legislation that merely effectively codified the bad Christie DEP rules in statute.

For that story, see: