Murphy DEP Is Grossly Politicizing The Rulemaking Process

Press Advances, Unpublished Press Statements, And Selective Briefings Of “Friendly” Environmentalists Prior To Proposal Are PR Tactics

Environmental Justice And Flood Rules Being Spun Before Their Actual Proposal

[Update below]

[Intro note: I revised this post with the photo above to avoid attacks on my analysis as motivated by white privilege or racism. I was involved in EJ issues going back into the 1980’s, by actively opposing siting of garbage incinerators in NJ black cities, and putting my DEP career on the line for it.]

In the last two days, in a highly unusual pattern, NJ media have reported very favorably on controversial major DEP regulations.

Those favorable news reports have come prior to the actual formal proposal and public release of the DEP regulatory proposals.

Those news reports have been based on advanced leaks or sources who have been provided selective briefings by DEP.

Typically, major DEP rules are announced publicly via a DEP press release, which provides a link to the text of the rule proposal. Typically, this occurs the day of or shortly before their formal publication in the NJ Register.

Friends of the Murphy DEP have been provided a heads up, in advance of the public release of the proposals and – like the puppets they are – used that heads up exactly like the DEP press office intended.

These DEP media practices reveal a ham handed political campaign strategy, not adherence to the formal legal public notice and comment procedures of the NJ Administrative Procedure Act.

It is highly unusual, improper, poor policy and practice, and transparently political for DEP to provide a selective  pre-proposal briefing to the environmental community and not the public and all the interested “Stakeholders”.

Obviously, DEP is engaged in a PR media campaign to frame the media narrative and garner environmental groups support, before the details of the actual proposal can be analyzed and criticized.

I) Environmental Justice Rules Quietly Released On DEP Website

Specifically, yesterday, NJ Spotlight reported on the upcoming proposal of long delayed DEP “environmental justice” regulations, see:

• DEP spells out new permitting standards for ‘overburdened communities’

Spotlight reported:

NJ Spotlight News obtained a copy of the draft 153-page rule, which is set to be published Monday in the New Jersey Register.

Spotlight doesn’t say how they “obtained” the copy or who gave them the heads up.

The proposal was quietly posted – unannounced by DEP –  on an obscure page on the DEP’s website. Effectively, the only way to have found it would have been to have been looking for it.

But it is very likely that Spotlight “obtained a copy” of the proposal (or a heads up that the proposal was coming) either directly from the DEP press office or from the friend of the Murphy Administration cited as a source in Spotlight’s story:

“The rules are really good,’’ said Maria Lopez-Nunez of the Ironbound Community Corporation, a group that’s pushed for such a law since 2008. “They lived up to the spirit of the law.’’

Ms. Lopez-Nunez is not a regulatory expert, she could not possibly have had time to read and analyze the proposal, and she previously highly supported the EJ law, despite its major flaws and compromises.

I am now reading the DEP EJ proposal and will post my analysis in the near future. My incomplete and cursory review thus far suggests the proposal is vague, unenforceable, and riddled with loopholes (many emanating from the legislation).

For example, the Spotlight story highlights (and includes a photo) of the proposed new power plant by the Passaic Valley Sewage Commission, clearly implying (falsely) that the DEP rule impacts this facility. Remarkably unreported is the fact that the rules do not apply to that facility –

Worse, the DEP rules also do not apply to greenhouse gas emissions or many of the industrial pollution sources of the disproportionate pollution burdens mentioned in the story (like: 1) toxic waste sites, 2) the Passaic Superfund cleanup getting so much attention now in Spotlight’s “Hazard NJ” podcasts, 3) hundreds of small “non-major” sources of air pollution; 4) the chemical storage facility that created the Passaic City fire near catastrophe, 5) the “bomb trains” and chemical shipments that derailed and forced the Paulsboro evacuation, 6) the underground “caverns” that store highly explosive and flammable natural gas and petroleum products, 7) chemical storage facilities that pose “catastrophic risk” and have mapped “kill zones”, or 8) the thousands of chemical manufacturing and storage facilities regulated by DEP under NJ and federal laws, including RTK, Pollution Prevention, TCPA, Clean Air Act, or RCRA.

II) DEP Flood Rules Soon To Be Proposed – DEP Selectively Briefs Environmentalists

Following Spotlight’s story yesterday, today NJ.Com reported very favorably on the long delayed DEP flood regulations, see:

• N.J. to order emergency rules on new construction in areas slammed by floods

This story appears to have originated in DEP press office spin issued in advance of the rule proposal – a transparent effort to get out front of and frame the debate:

Officials say the rules — expected to be instituted later this month — will modernize how the state Department of Environmental Protection regulates development in areas affected by inland flooding caused by stormwater runoff, as seen during Ida, as opposed to tidal flooding. The rules will use current and future rainfall rates instead of figures that are now two decades old and update how stormwater should be managed. […]

Larry Hajna, a spokesman for the DEP, said in a statement the rules continue the Murphy administration’s “commitment to taking proactive measures to protect New Jersey residents, their property, and our communities from the continued imminent threat of flooding resulting from increased frequency and intensity of climate-influenced precipitation.”

There is no press release on DEP’s website, so I have no access to that DEP press office statement or the text of the proposal.

Of course, Gov. Murphy’s transactional cheerleaders praised the proposal – and may have provided it to the press, which could have prompted the DEP press office statement.

But, here’s where the abuse comes in:

Specifically, the DEP will raise design flood elevations by two feet in non-tidal — or inland — flood zones, according to a presentation the agency gave to environmentalists and other groups last week, a copy of which NJ Advance Media obtained. […]

Michael Cerra, executive director, the New Jersey League of Municipalities, said his organization was not briefed on the changes but noted some groups that were briefed were “concerned.”

“We will be reviewing the proposal ASAP,” Cerra said, without elaborating.

This is amateur hour bullshit.

The current DEP Commissioner is a political hack. He is further eroding the public credibility and integrity of the DEP.

We’ll get back to you on the substance after we have had a chance to read and analyze the proposals, both of which we’ve written about several times.

[End Note: The NJ.com story headlines claims DEP will propose “emergency” flood hazard rules.

“Emergency rules” are a term of art under the NJ Administrative Procedure Act. Such rules become effective on the date of proposal in the NJ Register, prior to public comment.

There is no “emergency” declared by the Gov. or actual emergency conditions present on the ground that would justify a DEP emergency rule.

Suspecting possible DEP sabotage, I sent this question to reporter:

Hi – retired former DEP regulator here.  Just one question:

Did DEP actually say that they would propose and adopt these rules pursuant to emergency rulemaking procedures?

“Emergency” rules are effective on proposal in the NJ Register (prior to the standard notice and comment and response to public comment rulemaking procedures under the NJ Administrative Procedure Act).

DEP has engaged a “Stakeholder” process on these rules for over 2 years.

Impossible to justify them on an emergency basis.

I suspect that the Murphy DEP (the Commissioner is a former corporate lawyer) could be procedurally sabotaging their own regulations, allowing the Builders to sue and win on procedural grounds. This seems like a clear procedural violation to me – DEP can’t just declare an “emergency” – either the Gov. would have to issue an emergency declaration or objective facts on the ground would be required to justify an actual emergency condition.

That also could explain the selective briefing – highly unusual, very political, and very poor policy to brief the environmentalists prior proposal of rules, with no briefing provided to other important parties, like the League of Municipalities. A judge would look to crap like that in striking a DEP rule down.

DEP could then say “We tried” and paint the builders as the bad guys.

Again, we’ll report back when we find out if this is in fact an “emergency rule”.

[Update: 6/4/22 – NJ.com updated their story with respect to the “emergency rule” issue, as follows:

Emergency rules are technically valid for only 60 days, but the DEP will also file a proposal to allow them to remain in place past that, according to a presentation the agency gave to environmentalists and other groups last week, a copy of which NJ Advance Media obtainedThe (sic) public will be allowed to comment on the rules during a 30-day period after they are introduced.

Why is DEP adopting “emergency rules”?

Did the Gov. officially declare an emergency?

Is NJ currently in a flood emergency?

On top of that, “emergency rules” legally are effective upon publication in the NJ Register. So, the NJ.Com story got it wrong by saying the public comment comes after the rules are “introduced”.

That means the rules are enforced BEFORE public comment. This eliminates what is known as “due process” and is a rulemaking procedure only authorized by the Legislature under a true emergency.

I’ve worked on dozens of rules at DEP and been involved in regulatory policy academically and professionally for 40 years.

I can think of no reason why these rules should be adopted as emergency rules, especially after a multi-year stakeholder process.

I smell a rat.