Courts Struck Down DEP “Interim” Rules On PFNA
Longtime Legal Precedent Dooms Any DEP “Emergency Rule” Proposal
Activists don’t know the difference between the science supporting a “climate emergency” and legal requirements to justify “emergency rules”
Murphy DEP Commissioner Latourette recently publicly announced his plans to propose DEP’s long delayed “Climate PACT” land use rules as “emergency rules”, see this June 1, 2022 NJ.Com story:
The next day, on June 2, I wrote to explain how that would violate NJ’s Administrative Procedure Act and be struck down by NJ Courts or vetoed by the NJ Legislature.
On June 3, the NJ business community weighed into the debate with a letter to Gov. Murphy strongly opposing proposal of these rules as “emergency rules” (procedurally (not substantively) for exactly the same reason I did the day before).
But despite these obvious legal problems – which I again highlighted on June 7 and even raised the question of whether the Murphy DEP is intentional sabotaging their own regulations – on June 21 NJ climate activists wrote a letter to Gov. Murphy demanding that DEP propose emergency rules.
Unfortunately, the activists don’t know what they are talking about. The activists don’t know the difference between the science supporting a “climate emergency” and legal requirements to justify “emergency rules.”
If DEP follows that recommendation it will be rejected by NJ Courts and inject years of even more destructive delay.
Regardless, that request was prominently and uncritically reported by NJ Spotlight.
So, in doing some followup research on this legal issue, I found a related decision by NJ Appellate Division that struck down DEP’s 2014 “Interim Specific Groundwater Quality Standard” (ISGWQS) for “forever chemicals” PFNA.
At the time, I warned that DEP’s proposal was illegal and violated the NJ APA:
“it is NOT adopted as a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.”
Of course, the chemical industry immediately sued DEP and won.
And of course, none of this got reported by the cheerleading media or criticized by environmental groups, but the corporate lawyers obviously know all about it.
So today, in hopes of avoiding another regulatory train wreck, I just wrote to warn DEP Commissioner LaTourette NOT to propose an emergency rule but instead follow traditional notice and comment rulemaking procedures:
Dear Commissioner LaTourette:
I am writing to urge your reconsideration of your publicly announced plans to propose upcoming Climate PACT rules in the form of an “emergency rule” under the NJ APA.
Such a plan is a clear violation of the APA, as pointed out in the Business Community’s letter to Gov. Murphy, and is therefore doomed to failure and will create even more delay in adopting necessary regulations.
As you know, NJ Courts closely scrutinize DEP’s regulatory actions, particularly on procedural grounds.
For example, as you may know, the Appellate Division struck down DEP’s “interim” IGWQS for PFNA on procedural grounds as a violation of the APA.
That Appellate Court decision (link below) is a roadmap to how Courts will analyze any DEP emergency rulemaking. The Appellate Division PFNA IGWQS decision relied on the NJ Supreme Court’s articulation of precedent on triggering APA procedural requirements for rulemaking (i.e. the Metromedia and University Cottage Club decisions).
FYI, just 4 days after DEP posted the ISGWQS on the DEP website (March 14, 2014), I warned that the IGWQS:
“it is NOT adopted a a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.”
I’ve similarly been correctly warning DEP for decades about the need to adopt Natural Resource Damage regulations as well.
As you know, those warnings have been ignored and NJ Courts have rejected DEP NRD claims on that basis.
Let’s not repeat the same failures – please listen to my criticism, which are offered in good faith.
Bill Wolfe
Links to relevant documents on the PFNA IGWQS:
Appellate Division decision:
law review
law review
https://www.mankogold.com/publications-CCNJ-NJDEP-ISGWQC-PFNA-Rulemaking.html
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