Unclear What The Changes Mean For NJ EJ Communities
DEP “Refresh” Practice Violates Law
Murphy DEP Governing By Tweet And Website Notice
I got this vague email from DEP last week advising of the DEP’s intention to “refresh” the underyling data on environmental and public health “stressors” to environmental communities:
On July 27th, the Department will refresh EJMAP with new stressor data made publicly available since its release on 4/11/23. Any permit application submitted on or after 7/31/23 must use the new stressor data layer for analysis. The tool will default to that revised layer. The original layer (4/11/23 – 7/30/23) will remain as an archived layer within the tool with its own button for those permit applications received within that date range. The Department will post an addendum to the EJMAP technical guidance explaining which data sets were updated on its Office of Environmental Justice website.
Say what? What the hell does that mean?
DEP can’t do that!
I previously wrote to criticize the DEP’s “Guidance”, and the “refresh” compounds these flaws, see:
I actually tried to chase the DEP’s “refresh” links to find out what it means, how it would apply, and why DEP “refreshed” the data.
I went to the DEP EJ website. I scrolled down and clicked on the “Updates to EJ Mapping”.
But what I found was gibberish and obfuscation. NJ courts previously admonished DEP for merely posting material on the website that effectively constitutes the substance of regulation. I can hardly think of anything more substantive and important than the data DEP considers a “stressor” to public health and the environment.
So I wrote the following to DEP Commissioner LaTourette and Legislators to object. Basically, DEP can’t regulate by posting material on the DEP website and then issuing Tweets and Facebook posts:
———- Original Message ———-
From: Bill WOLFE <>
To: “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “Sean.Moriarty@dep.nj.gov” <Sean.Moriarty@dep.nj.gov>, senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, asmmckeon <asmmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>, “fkummer@inquirer.com” <fkummer@inquirer.com>, “wparry@ap.org” <wparry@ap.org>, “jonhurdle@gmail.com” <jonhurdle@gmail.com>, Robert Hennelly <rhennelly55@gmail.com>
Date: 07/30/2023 7:56 AM PDT
Subject: “Refresh” of EJ Map data violates law
Dear Commissioner LaTourette:
I am writing to object to the department’s “refresh” of the EJ MAP data, which is proposed to become effective tomorrow, 7/31/23.
The Department has engaged in “rulemaking” as defined in the NJ Administrative Procedure Act (APA) without compliance with public notice and comment rulemaking procedures, in violation of the APA and NJ Supreme Court decisions.
The NJ Supreme Court specified the principles, factors, and conditions upon which agency action constitutes “rulemaking” that must follow APA formal notice and comment procedures, see: Metromedia Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331 (1984).
https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html
In addition, the NJ Appellate Division found:
“The APA defines an administrative rule as “each agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency.” N.J.S.A. 52:14B-2(e). “If an agency determination or action constitutes an ‘administrative rule,’ then its validity requires compliance with the specific procedures of the APA that control the promulgation of rules.” Airwork, supra, 97 N.J. at 300.”
https://law.justia.com/cases/new-jersey/appellate-division-published/2013/a3514-11.html
NJ Courts have admonished DEP for merely posting what amounts to regulatory requirements on the website, without APA notice and comment rulemaking. For example, in IN RE N.J.A.C 7:1B-1.1 ET SEQ, the Appellate Division ruled:
“We agree with appellants, however, that DEP has engaged in de facto rulemaking in violation of the APA’s notice and comment requirements by posting on its website, after promulgation of the waiver rules, so-called “guidance” documents and FAQs. These postings collectively detail DEP’s plans to develop internal processes and procedures to ensure consistency in its waiver decision-making, to create a priority system for its consideration of waiver requests, to expand transparency in noticing the receipt of applications for waivers, and to develop standardized submission forms. By explaining the waiver rules and describing what DEP will require applicants to submit to satisfy the waiver rules and receive a waiver grant, these postings go beyond merely facilitating administrative implementation of the rules as claimed by DEP and actually, to some extent, announce new substantive requirements, necessitating compliance with the APA.”
The Department itself acknowledges that the factors and conditions that define a regulation have been triggered. The Department’s website posting notes the “refresh” effects the scope, applicability, and substance of regulatory requirements. The DEP website states: (emphases mine):
“The Department has made several changes to EJMAP to update the tool’s underlying data and better align internal calculations and methodologies with the adopted EJ rule. While these updates change numeric outcomes from the tool, they do not impact the structure and functionality of the tool itself. The Department has documented these data updates and changes to internal calculations and methodologies in the final version of its EJMAP: Technical Guidance document. The adopted EJ rule specifies the information that determines areas that are subject to the protections provided by the rules and provides a process for updating the extent of those areas as the information sources underlying the boundaries of the protected areas are updated. EJMAP, therefore, only reflects in map format the boundaries of the areas determined by application of the provisions contained in the final rule and is intended to provide a useful living tool that will be continually updated going forward to ease understanding of what is covered by the rule.” https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6
Furthermore, the DEP not only violated law, the data “refresh” practice frustrates fundamental principles of transparency and accountability and science. Specifically, I am unable to find and understand the changes made to the underlying data and the underlying rationale, as those data have been “refreshed”. This would require an explicit side by side comparison of the changes made as part of the “refresh” practice.
I strongly urge you to rescind this proposed “data refresh” and comply with notice and comment procedures required by the APA and case law.
Bill Wolfe