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DEP Is Effectively Engaged In Deregulation, But Without Revising Regulations

DEP Is Violating NJ Supreme Court Doctrine On Rulemaking

Bear with me for a moment as I try to establish the context to illustrate the insidious and lawless behavior of the Murphy DEP.

This is a legally complex situation, but it can be summed up with basic common sense:

requirements to adopt regulations that have substantive impacts apply the same way to the repeal or revision of regulations that have similar substantive impacts. Regulation and deregulation must follow the same rules.

Administrative agencies can only act according to authorizing laws passed by the legislature. Laws require that administrative agencies adopt regulations in order to implement and enforce laws enacted by the legislature.

Adoption of regulations requires public notice, public hearings, an opportunity for public comment, and agency response to public comments. All of this constitutes what is called “the administrative record” and provides the basis for legislative oversight and judicial review.

This procedure allows the regulated community and the public to be aware of and participate in policy decisions that impact their lives. It also holds the executive branch accountable to the public, to science, and to law. It satisfies the “due process” requirements of the US and NJ Constitutions and the procedural requirements of the Administrative Procedure Act.

The NJ Supreme Court has stipulated six (6) factors that determine when an agency’s actions constitute rulemaking that triggers the formal procedures for adopting a rule (i.e. public notice, public hearings, an opportunity for public comment, and agency response to public comments.)

In the leading case known as Metromedia, Inc. v. Director, Div. of Taxation, the Supreme Court ruled (emphasis mine):

We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

These factors apply to both when an agency is adopting a rule and when it is repealing a rule (or revising a longstanding regulatory policy or interpretation of the authorizing statute or the rule).

Which takes us to what the Murphy DEP is doing: they are revising statutory and regulatory interpretations and longstanding regulatory policies. And they are doing that without going through the formal rulemaking process.

Essentially, they are scaling back regulatory protections, which is a form a deregulation. This triggers the 5th and 6th factors, among others, in the Supreme Court’s Metromedia decision.

My letter to NJ Senators on the Senate Environment Committee outlines this abuse.

This abuse is particularly egregious because DEP Commissioner LaTourette is a former corporate lawyer and no way would his former corporate clients tolerate the DEP’s regulatory policy revisions if they applied to them and were more stringent.

So why are environmental groups tolerating it?

Dear Senators –

The DEP is interpreting the Water Quality Planning Act extremely narrowly and reversing historic policy and regulatory interpretations to approve wastewater treatment plants and extensions of sewer lines into rural, agricultural, forested, and environmentally sensitive lands. (see this analysis).

This new narrow statutory interpretation appears to contradict the legislative intent of the WQPA, as evidenced by longtime legislative support for prior DEP regulatory policy, which highly discouraged and strictly reviewed extension of wastewater infrastructure to support new development on environmentally sensitive lands.

DEP is revising regulatory policy and adopting new policies in the absence of formal notice and comment rule making. The new DEP regulatory interpretations are highly substantive. These new interpretations meet the criteria that trigger rule making, according to the NJ Supreme Court’s decision in Metromedia, Inc. v. Director, Div. of Taxation

https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html

Accordingly, I urge you to conduct legislative oversight and restore protections for water resources under the WQPA.