DEP Emergency Rule To Authorize Bear Hunt Is A Radical Departure
DEP Enacting Unauthorized New Forestry, Wildfire, Climate & Green Acres Initiatives
Costly New Programs Raise Budget And Appropriations Issues
In Bruegel’s Landscape with the Fall of Icarus (c. 1558) the fallen Icarus is a small detail at lower right
It is unacceptable for DEP to proceed in controversial policy fields – i.e. public lands, climate, and forestry – in the absence of legislative authorization and during the deliberations of a Legislative Task Force.
That kind of arrogant arrogation of power demands legislative oversight.
Murphy DEP Commissioner Shawn LaTourette (Source: NJ DEP)
The Murphy DEP has generated public controversy in a series of recent significant changes in regulatory policy, which demand oversight and legislative review to check DEP’s power and block what clearly are departures from DEP’s longstanding regulatory policies and practices.
DEP is essentially usurping legislative authority, showing little deference to pending legislative policy development before acting, and trampling Constitutional rights via a radical emergency rulemaking procedure that triggered litigation and a deeply troubling NJ Supreme Court green light that could provide a blank check to DEP regulatory power.
These DEP initiatives involve: rarely used emergency rulemaking powers; threatening a lawsuit to secure approval for logging in the Pinelands under pretext of wildfire management; implementation of a Forest Action Plan on public lands in the absence of legislative authorization; and consideration of radical rule changes to promote development of Green Acres public lands.
Each policy development also raises new fiscal and legislative budget appropriations issues, as the costly programs DEP is attempting to implement do not identify a funding source and are not currently funded or appropriated any revenues. DEP has not provided public costs estimates for these programs as well.
Last, these controversial new regulatory policy initiatives have little or any public awareness or support and have not undergone adequate public review.
I wrote the following letter to Senate Environment Committee Chairman Bob Smith to urge him to hold oversight hearings:
Dear Chairman Smith:
I am writing to implore you to conduct oversight hearings and take public testimony regarding a recent series of deeply disturbing developments at DEP.
I) Emergency Rulemaking Raises Troubling Constitutional Issues
First, most recently, DEP invoked extremely rarely used emergency rulemaking power to authorize the bear hunt. Aside from the science and policy merits of bear hunt issues, the legal implications of DEP’s emergency rulemaking powers need to be explored, overseen, and legislatively checked.
Apparently, the NJ Supreme Court will not take a hard look, so that responsibility now falls on the legislature and oversight by your Committee of jurisdiction. See:
Senator, you’ve known of my work since 1995 – 27 years – when I testified before your committee’s hearings on the Knapp Technologies disaster than killed 4 workers, see the New York Times story:
As you will recall, I explained how Gov. Whitman’s DEP regulatory rollbacks to the NJ RTK regulations – and pending rollbacks to the TCPA regulations pursuant to the federal consistency policy of Whitman’s Executive Order #27 – exacerbated that disaster and put the community and first responders at risk.
During these 27 years, no one in NJ has been a more expert and aggressive advocate of strong DEP regulatory power.
But I am appalled and deeply troubled with DEP’s abuse of those powers to authorize the bear hunt. Constitutional due process rights must never been ignored by an executive branch agency, and fabrication of an “imminent peril” finding to undermine a statutory standard is unacceptable. And that’s exactly what happened here.
Those issues must be ventilated – publicly – lest the Icarus over at DEP fly even higher. You must clip his wings and many are willing to provide the scissors.
II) DEP Is Strong Arming The Independent Pinelands Commission
Second, as you may not know, in a February 4, 2022 letter (attached), DEP Commissioner LaTourette threatened to file a lawsuit against the Pinelands Commission unless the Commission “immediately” (his word) approved the DEP’s forestry management plan, a flawed plan that had been pending before (and not approved by) the Commission for 15 years. See:
Both the lawsuit threat and the demand for “immediate” approval (a demand that would ignore and violate procedural legal public participation requirements) are totally inappropriate tactics that have no place in NJ government.
Commissioner LaTourette apparently is unaware that his former corporate lawyer tactics are not to be deployed in public service.
III) DEP Is Adopting Major Policy Change With No Legislative Authorization Or Policy Direction
Third, in that DEP Pinelands Forest Management Plan, DEP asserted and implemented what they describe as a “carbon defense” policy, as outlined in the (presumably draft) DEP Forest Action Plan.
Both the DEP “carbon defense policy” and the “Forest Action Plan” are highly significant components of NJ’s public lands management policies, as well as climate policies and programs to implement and attain the legislative goals of the Global Warming Response Act.
Yet neither the DEP’s “carbon defense policy” nor the Forest Action Plan” are authorized by the legislature or provided an appropriation.
Even worse, they are being rushed to avoid the new policies and standards that are likely to be developed by the Legislature in response to your Forestry Task Force, whose legislative and regulatory policy recommendations are due this month.
In fact, Pinelands Commissioner Lohbauer publicly criticized the DEP’s forestry plan for being rushed through right now in order to evade compliance with an upcoming “no net loss of trees” policy currently under development by the Commission.See:
The DEP is cynically doing a similar end run around your upcoming forest management legislative program.
IV) DEP Floated A Troubling Trial Balloon To Promote Development Of Green Acres Public Lands
Fourth, as very few people are aware, DEP recently floated a trial balloon to a small hand picked group of DEP funded Stakeholders regarding radical and highly controversial changes to NJ’s popular Green Acres program, see:
These changes contemplate regulatory revisions to allow all sorts of totally inappropriate uses and development of Green Acres lands, including privatization and commercialization. These kinds of policies have been strongly opposed by the public for decades (witness the battles over Liberty State Park, which would be magnified statewide under DEP’s trial balloon.)
Again, I am aware of no legislative policy authorization for such a radical shift in Green Acres policy.
It is unacceptable for DEP to proceed in controversial policy fields – i.e. public lands, climate, and forestry – in the absence of legislative authorization and during the deliberations of a Legislative Task Force.
That kind of arrogant arrogation of power demands legislative oversight.
I urge your prompt attention to these matters and favorable reply.
Respectfully,
Bill Wolfe