NJ Democrats Attempted To Pass A Law That Would Do Exactly What The Radical US Supreme Court Just Did In Striking Down Obama EPA’s Clean Power Plan

Radical “Major Questions Doctrine” Requires Specific Congressional Authorization

NJ Democrats Pushed A Bill That Would Have Imposed Same Requirement On DEP Rules

I thought this little piece of history would be important as the conversation expands on the implications of the US Supreme Court’s decision last week that struck down the Obama EPA’s Clean Power Plan.

In that decision, the Court sought to legitimize a radical new legal doctrine known as the “Major Questions doctrine”.

Basically, that doctrine requires that Congress must enact specific legislation to authorize Executive branch agency regulations.

Hence, federal agencies would be prohibited from promulgating regulations unless they could point to very specific legislation that authorized the regulations in question.

As I’ve written numerous times, the Court’s decision and the “Major Questions” doctrine are longstanding goals of the corporate and radical right wing libertarian community and key tools to attack and dismantle what they call “the administrative state”.

So, I thought people would like to know that NJ Democrats attempted to pass NJ legislation to do exactly the same thing, by requiring that DEP could only adopt regulations that were “specifically authorized” by legislation.

The Democrats pushed this bill as part of implementing Gov. Christie’s “Regulatory Relief” policy under Executive Order #2 and “Red Tape” attack on DEP regulations under Executive Order #3.

That bill would apply across the board to all DEP regulations – air, water, drinking water, hazardous waste, et al – not just block DEP climate regulations.

I testified in opposition to and wrote about that bill multiple times, and specifically on this radical provision at least twice back in 2011, during the Christie Administration, as follows:

In a March 13, 2011 post, I wrote:

“The legislation involved (A2486 2R) (Burzichelli, D-Oil) would codify the Christie federal consistency policy – and go even further by prohibiting proposal of rules “not specifically authorized” by the legislature, a provision the sponsor stated would require legislative approval of more stringent rules prior to agency proposal. This would put the legislature in charge of rulemaking, a radical rollback in the modern framework of Administrative and environmental law, which are founded on a broad delegation doctrine, where the Legislature delegates power to executive branch agencies to use their scientific expertise to fill in the details of complex legislation.”

The next day, after crashing a NJ BIA luncheon and getting the chance to brief a reporter on the issues in the bill, I wrote:

Soon after I got there [i.e. Trenton], I got a call and was invited to a meeting with a reporter for a major metropolitan newspaper, when Jeff Tittel popped in to advise that the bill had been held. I was just explaining the problem of delegation and modern doctrine of administrative law since the US Supreme Court’s 1935 Panama and Schechter Poultry New Deal decisions (professors Nate Hackman and Ted Lowi would be proud), when Jeff blurted out something about the Tea Party, Koch brothers, and a Democratic fundraiser.

That briefing ended abruptly, as the media would much rather write about simple scandal, than complex issues of science, regulatory policy, and administrative law.

The bill ultimately died, and I’d like to think that my legislative testimony opposing the bill and my writing about it helped kill it.