Senate Committee Blinks In Showdown On Veto of Christie DEP Clean Water Rule Rollbacks

Fie – Fi – Fo – Flint

I smell the Senate Presidint!

[Update#2: 3/18/16 – Star Ledger Editorial – headline and lede are wrong. As we explain below, the Christie Administration has not “backed down” or “blinked”. But the rest is pretty good:

• Christie administration backs down on clean water rules 

Update #1: 3/8/16 –  Tom Johnson at NJ Spotlight reaches exactly the opposite conclusion that I did, a perfect illustration of exactly what I warned below was a “dangerous game” and a “formula for manipulation”, see:

• STATE DEP WITHDRAWS RULE CHANGES, AVOIDS CLASH WITH LAWMAKERS

Tom is NJ’s most veteran environmental reporter. If Tom can’t get it right – and only injects “skepticism” at the very end of the story and sourced from Dave Pringle no less – then how can the typical State house or environmental reporter understand what’s going on?

Tom’s story now becomes the green light narrative for the deal. The Legislature can posture that they forced the Christie DEP to concede and yet the Christie DEP made no substantive concessions and never admitted any error. Kabuki at its worst.  – end update]

The Senate Environment Committee today heard and held a Senate Concurrent Resolution (SCR 66 – Lesniak) to declare the Christie DEP’s proposed major “overhaul” of flood hazard, coastal zone and storm water management regulations “inconsistent with legislative intent”.

Last week, the Assembly Environment Committee released the Assembly version (see: Assembly Moves To Veto Christie DEP’s Clean Water & Flood Rule Rollbacks so today was an unexpected and huge setback.

The thinly veiled Kabuki excuse of Committee Chairman Bob Smith was to allow DEP an opportunity to respond to 900+ public comments, revise and fix the rule and then come back and brief the committee at a May hearing on how they planned to fix the rule.

Smith said he would “put a bullet in the chamber”, but not pull the trigger (whenever a politician uses macho metaphors, that’s a reliable indicator of psychological cover for betrayal and cowardice).

At one point, Smith concluded that it was not the Legislature’s role to be “micromanaging DEP rules” – a stunning statement and backtracking, given the prior Senate hearing and the strong legal and policy arguments and conclusions reached by the Legislature by both Houses voting to declare the DEP proposal inconsistent with legislative intent.

But let’s be honest: Smith blinked. When the pressure was on, he backed down, didn’t stand his ground, and let DEP unconditionally squirm off the hook. The momentum for a veto has evaporated and he backpedaled.

With the entire cadre of NJ’s business and builders lobbyists making a full court press in support of the Christie DEP’s regulatory rollback and in opposition to the SCR – including their biggest gun, attorney Dennis Toft, of former Wolff & Samson repute –  it seemed obvious that the Chairman was bowing to that political pressure (and/or following the orders of Senate President Sweeney).

DEP Commissioner Martin’s special advisor Ray Cantor testified and reiterated that the DEP’s intent was merely to “streamline” duplicative regulations and not weaken standards. Cantor cited DEP’s inclusive and transparent stakeholder process to develop the rule (by invitation only, knowledgeable experts and critics need not apply).

Cantor noted that DEP planned on making vague and unspecified changes to the stream buffer, headwaters, and mitigation provisions of the proposal and assure that it complied with federal Clean Water Act requirements.

Not only were DEP’s planned changes vaguely described, but Cantor made no specific commitments.

Cantor testified that DEP had met with EPA on February 1 and that it was a “positive conversation”.

When pressed by Chairman Smith on details of the EPA meeting, Cantor demurred.

The last time Cantor testified about EPA’s position on the proposal, he misled the Committee by stating that EPA’s concerns had been withdrawn. Days later, EPA wrote to refute that and reiterate their prior concerns that the proposal would violate the federal Clean Water Act.

Senator Bateman asked Cantor what DEP’s timeframe was and could they commit to a schedule.

Cantor refused to make any commitments.

It seemed like Smith, Bateman and the Committee did not understand the fact that, legally, the DEP has until June 1, 2016 to adopt the proposed rule or it will expire.

Under the NJ Administrative Procedures Act, State agencies have 1 year after rule proposal to adopt, or else the proposal expires.

The rules were proposed on June 1, 2015, so we are over 9 months into that period, so DEP has had plenty of time to review and respond to public comments and be fully prepared to provide a detailed set of commitments to the legislature.

DEP’s failure to do so and the Senate’s acceptance of that are very bad signs.

Similarly, DEP met with EPA on February 1.

Way back in October, EPA submitted specific written comments to DEP on the rule, so DEP was fully aware of EPA’s concerns. Yet, Cantor refused to discuss EPA’s current position or how DEP would satisfy their prior concerns.

I called EPA to ask about the Feb. 1 meeting and all EPA managers would tell me was that the meeting was “informative”. So, EPA is ducking as well.

DEP agreed to adopt unspecified portions of the original proposal and revise and repropose other provisions. Exactly what that means is anyone’s guess.

This sets up a very dangerous game of bait and switch and spin – DEP could adopt the bad parts and promise to re-propose the fixes but never adopt them.

The public and the Committee will be drowned in the weeds of a lengthy adoption – response to public comments document on the original proposal along with an entirely new and complex re-proposal document. This is a formula for political manipulation. It will take weeks to decipher the documents. Meanwhile, by the time the dust settles, the original proposal will be adopted into law and the Veto Resolution will have withered on the vine (faded into the budget debate) and the Legislature adjourned for the summer.

At best, Chairman Smith and his colleagues are being very naive – just like they were when they recently got rolled by Commissioner Martin and his manufactured emergency on the public access rules struck down by the Courts.

Any time a government agency loses a lower court case and the stakes are high, the path forward is for the government to request a stay pending appeal to a higher court. Those kinds of stays to preserve the status quo are routine.

There was no “emergency” and no immediate need for the legislature to act in the final 72 hours of the legislative session.

There was no need to pass a bill that effectively rubber stamped the Christie DEP public access rules and extracted no concessions to improve public access.

That was all the Kabuki cover for an unwillingness to take n the Governor and take responsibility for setting a strong public access policy and defying the business lobbyists demands that led Christie DEP to rollback the Corzine DEP’s rules.

Smith squandered the moment and blew an opportunity to use the Court’s decision as leverage to extract concessions and stronger public access.

Today, once again, he got played by the Christie DEP and just like in the public access case.

Despite huge leverage of a pending veto, Smith extracted no commitments and wasted a huge opportunity of using the pending veto to kill the original DEP proposal outright and extract specific commitments to propose something better.

My prediction is that DEP will re-appear before the Committee in May, backed by their business community lobbyists, and make some nice sounding gestures and rhetoric about strengthening the rule –

Environmentalists will shout and wring their hands, but Smith will fold and the Resolution will be effectively dead.

DEP and Smith might even use the current ongoing “Stakeholder process” on public access reforms as a carrot to peel off some of the opposition.

Most of the bad stuff will be adopted in June. Sweeney will have no visible fingerprints on the deal.

Mark my words.

“These are the times that sicken men’s stomachs” ( paraphrasing Tom)