How To Beat The Bureaucrats At Their Own Game

We Repudiate Pinelands Commission Staff’s Rejection Of Wildfire Petition

In the letter below, we demonstrate exactly how the Pinelands Commission staff’s rejection of my wildfire risk reduction petition as “incomplete” was absolute bureaucratic bullshit which was crafted to evade a public discussion of the issues and avoid having to defend the lax wildfire provisions of the Pinelands Comprehensive Management Plan (CMP).

The regulatory petition mechanism shifts power from the bureaucracy to the citizen. The petition can set priorities, put an issue on the agenda, and force the bureaucracy to respond publicly to science and a policy argument. The petition can force the bureaucracy to defend their regulations. The petition can expose gaps, flaws and weaknesses of regulations and identify problems that need attention that the bureaucracy is ignoring. The petition forces the bureaucracy to be transparent in decision-making because the agency must provide a detailed written science and fact based response to the petition, which may be challenged politically (e.g. trigger legislative oversight, media scrutiny, or environmental group advocacy) and in a court of law. The petition forces the bureaucracy to do work and be accountable to the public.

So, of course the bureaucrats hate the petition mechanism and try to avoid having to respond to them. This explains why the Pinelands staff found my petition “incomplete”. This is why I had to respond below.

No citizen should be required to conduct this kind of analysis – or be subject to this kind of bureaucratic abuse.

From: Bill WOLFE [….]

To: stacey.roth@pinelands.nj.gov, Grogan, Susan [PINELANDS]

Cc: shawn.latourette@dep.nj.gov, senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, lisa.plevin@highlands.nj.gov

Date: 04/12/2022 1:17 PM

Subject: Wildfire Petition – CMP Equivalence Demonstration

Dear Ms. Roth and Grogan:

This letter is in response to your March 24, 2022 letter which determined that my March 9, 2022 petition for rulemaking to amend the CMP was incomplete and not in compliance with CMP regulations. Specifically, you wrote (emphasis mine):

“Review of your petition indicates that it is lacking much of the information required by N.J.A.C. 7:50-7.3(b) and must therefore be deemed incomplete.In order to complete the petition, you will need to submit the information required by N.J.A.C. 7:50-7.3(b)2, 3, 4 and 5.” 

On March 24, 2022, I replied to that letter – twice. My reply argued that the subject CMP regulations were ultra vires, in conflict with the NJ Administrative Procedure Act (APA), contrary to legislative intent of the APA, and applied to my petition in an arbitrary and capricious manner. I urged you to reconsider the “incomplete” determination.

You have not replied to that request. I stand by those arguments.

However, in order to remove the regulatory logjam you have created, this letter seeks to demonstrate that –  arguendo – even if the subject CMP regulations were legally valid and appropriately applied to the petition, that the petition, although not filed in accordance with the regulations or drafted or formatted to demonstrate compliance, is nonetheless substantively equivalent to and therefore is in compliance with the subject CMP regulations.

N.J.A.C. 7:50-7.3(b)2, 3, 4 and 5.

Below, I will restate each subject CMP regulation and respond to demonstrate substantive equivalence:

“2. The precise wording of any proposed amendment of the text of this Plan and a map or plat delineating any proposed change to the Pinelands Land Capability Map;”

Precise wording is provided in the petition, as follows:

“The petitioner requests that the DEP, Pinelands Commission and Highlands Council use the aforementioned legal authorities to amend current DEP regulations, Pinelands CMP and Highlands RMP to:

• ban new development in mapped “extreme” wildfire hazard areas
• restrict new development in mapped “very high” and “high” wildfire hazard areas
• mandate retrofit of state of the art fire prevention practices on existing development in mapped “extreme”; “very high” and “high” wildfire hazard areas
• prohibit reconstruction of fire damaged properties in mapped “extreme”; “very high” and “high” wildfire hazard areas;
• monitor, quantify, and publicly Report in NJ’s Clean Air Act SIP all air pollution emissions – including greenhouse gas emissions and fine particulate matter (including very fine particulates less than PM10 and ultra fine <PM2.5) – and impacts of wildfires and prescribed burns.”

The petition cited specific maps and data layers as follows:

“(see Map as Figure 5.12-4 Wildfire Fuel Hazard in New Jersey)”

Accordingly,7:50-7.3(b)2 is satisfied.

“3. A statement of the need and justification for the proposed amendment,including the reason(s) why the objectives of the petitioner cannot be accomplished through adherence to the standards of this Plan or compliance with the procedures set forth in N.J.A.C. 7:50-4, Part V;”

A statement of need and justification was very clearly described in the petition:

Need:

“The reasons for this request are

• to protect people and property from current and projected wildfire risks and impacts;
• to protect ecosystems, natural resources, air quality, water quality, wildlife, vegetation, and public health from current and projected risks and impacts of wildfire;
• to mitigate the risks and impacts of climate change; and
• to reduce the occurrence and damages from wildfire disasters and the disbursements of federal and state taxpayer funded disaster assistance and response programs

Justification:

The scientific and policy basis and rationale were clearly stated in the petition. Primary  source was the most recent version of the NJ State Hazard Mitigation Plan (2019). That plan was based, among other things, on DEP data, science and mapping.

[Update: here are the scientific bases for the petition:

“We incorporate by reference the DEP’s recent climate science report, the most recent DEP SIP, the DEP Commissioner’s February 10, 2022 Senate testimony, as well as the wildfire and related findings of the 2019 NJ Hazard Mitigation Plan, the Pinelands CMP and the Highlands RMP.” ~~~ end update]

“why the objectives of the petitioner cannot be accomplished through adherence to the standards of this Plan”

The reasons why are clearly stated in the petition. The petition incorporates State wildfire data, State wildfire risk assessment, and incorporates the current CMP wildfire provisions by reference.

Accordingly,7:50-7.3(b)3 is satisfied.

“4. A statement as to the conformity of any proposed amendment to the goals and objectives of this Plan and the intent of the Pinelands Protection Act and the Federal Act;

The petition did not explicitly include a “statement as to the conformity”.

This alleged “incompleteness” is non-substantive and purely an empty rhetorical formalism.

The petition explicitly cited and asserted the Legislative intent, goals, objectives, and standards of the Pinelands Protection Act and CMP (as well as broader explicit and implicit delegated police powers).

The petition clearly explained why (with text and maps) amendments were justified and cited State wildfire data and wildfire risk assessment from NJ’s current Hazard Mitigation plan as to why the current CMP was not adequately reducing those impacts and risks.

Although not specifically cited to the subject CMP regulations and described as a “conformity” analysis, these provisions of the petition obviously must be interpreted as equivalent to the “conformity” requirements.

Accordingly,7:50-7.3(b)4 is satisfied.

“5. If the proposed amendment would change the minimum standards for land use and intensities contained in N.J.A.C. 7:50-5 or the management programs and minimum standards contained in N.J.A.C.7:50-6, an evaluation of the environmental consequences of the proposed change;”

The petition clearly included “an evaluation of the environmental consequences” as follows:

“5.12.6.3 ENVIRONMENTAL IMPACTS

“Wildfire events can have significant positive and negative impacts on the environment. The loss of vegetation, biodiversity and habitat is a concern, especially where threatened and endangered species are located. However, many of the State’s listed threatened and endangered species thrive in the open conditions that had historically resulted from the natural fire regime (NJFFS, 2013).

Exposed soils are vulnerable to wind and water erosion which may impact the quality of downstream water bodies and drinking water supplies. The composition of plant communities, as well as their vegetative and growth characteristics, is affected by fire. For example, many plant species have adapted to fire and are dependent on it for reproduction (NJFFS, 2013).”

Based on the Plan’s own findings, NJ’s land use planning and regulatory framework are seriously flawed and incapable of preventing and reducing wildfire risks and impacts. Accordingly new and more stringent measures must be imposed to prevent and reduce such risks and impacts.”

The petition was based on State government’s own environmental impact assessment. It would be absurd for the Pinelands Commission to require a more rigorous environmental analysis than that conducted by NJ State government in a plan submitted to the federal government for review and approval.

Any more rigorous evaluation of environmental consequences would constitute a mini EIS requirement that is extremely burdensome and far beyond the scope of the Administrative Procedure Act petition standards.

Accordingly,7:50-7.3(b)5 is satisfied.

Conclusion

The foregoing analysis demonstrates that the petition, in its original form, is substantively equivalent to and therefore meets the requirements of the subject CMP regulations.

The foregoing analysis was submitted, arguendo, in accordance with the subject CMP regulations, which I continue to maintain are not legally valid..

Regardless, accordingly, for purposes of your “incomplete” determination, please accept this analysis as an addendum to the original petition in order to satisfy the subject CMP regulations which formed the basis of your “incomplete” determination.

I trust that the petition, as amended herein in arguendo form, is now complete.

I look forward to timely receiving your “completeness” determination, acceptance, public notice, and review of the petition, in accordance with the NJ Administrative Procedure Act.

Bill Wolfe

C: Senators Smith and Greenstein

DEP Commissioner Latourette

Highlands Council Executive Director Plevin