DEP Covers Up Role of New Office of Economic Review
Denies OPRA Records Request in Less Than 24 Hours
The NJ Open Public Records Act (OPRA) gives public agencies 7 working days to respond to records requests, but it sure didn’t take DEP that long to deny my recent OPRA request for records on the new DEP Office of Economic Analysis.
DEP denied the request in less than 24 hours!
The new DEP Office of Economic Analysis is particularly important for at least 3 reasons:
First, that Office is housed in the Commissioner’s Office and is tasked with conducting “cost benefit analysis” of proposed DEP rules in accordance with the requirements of Governor Christie’s Executive Order #2, which requires that State agencies provide “immediate regulatory relief”;
Second, DEP Commissioner Bob Martin has mandated that DEP’s Mission be expanded to include “promotion of economic development”. Presumably, the Office of Economic Analysis would play a lead role in that effort.
Third, DEP Assistant Commissioner Siekerka just bragged that the Office reviews virtually all DEP policy and regulatory initiatives, so it is crucial to understand what that Office does and how it relates to environmental policy and decisionmaking at DEP to implement NJ laws.
I filed the OPRA request after learning that DEP Assistant Commissioner Siekerka praised that Office and its Director, Ben Witherell, in a speech on Saturday at the ANJEC Environmental Congress.
That sure takes some arrogance! – trot out a DEP Assistant Commissioner to publicly tout the work of a new Office they created, and then deny a public request for records of the work of that Office!
The DEP website provides no Mission statement or other description of the duties and responsibilities of that Office.
I contacted the Director of the Office, Ben Witherell, to ask for information and Ben replied that I should file an OPRA request. Ben copied the DEP OPRA Office Manager.
(like his boss Commissioner Martin who has no environmental training or qualifications, Ben has no academic training or credentials in economics or environmental economics – that’s sure some qualification for the head of an Office of Economic Review!)
Here’s the full email exchange:
From: “Ben Witherell” <Ben.Witherell@dep.state.nj.us>
To: “email@example.com” <firstname.lastname@example.org>
Cc: “Matt Coefer” <Matt.Coefer@dep.state.nj.us>
Sent: Monday, October 22, 2012 12:03:40 PM
Subject: RE: Economic analysis
Most often we provide assistance to the program staff responsible for the rule. The analyses our office conducts or assists with relevant to rulemaking and Executive Order #2 is contained in the “Economic Impact” section of the rule itself when it is published. If you need assistance with finding this information please contact Mr. Matthew Coefer of our OPRA office, and copied here.
Director of Economic Analysis
NJ Department of Environmental Protection Office of the Commissioner
401 E. State Street
P.O. Box 402
Trenton, NJ 08625-0402
I responded as follows:
Thanks Ben – I’ve already filed an OPRA request.
Please allow me to clarify my request – are you suggesting that your Office only gets involved in the “economic impact” of proposed DEP rules?
I was under the impression that virtually all DEP policy and program initiatives were within the scope of your Office (as well as economic view or rules pursuant to EO #2).
Am I misinformed?
Just two examples of projects I have been involved with: Barnegat Bay Management Plan and lease valuation of state lands.
Also, based on your response, I will assume that there is no formal policy and procedure, methodology, Guidance, or mission statement for your Office. Please correct me if my assumption is wrong.
The DEP’s Office of Economic Analysis – conceptually – serves a similar role and performs similar functions in the regulatory arena as the federal Office of Management and Budget Office of Information and Regulatory (OIRA).
OIRA tends to use “cost benefit analysis” and other economic tools to delay, weaken and even kill regulations designed to protect public health and the environment. So its controversial work receives strict scrutiny and comes under regular strong criticism from environmental and public interest groups, like OMB Watch.
However, OIRA at least operates somewhat openly and transparently - there is a website, federal law and Executive Orders that govern their work, and there are basic document disclosure and other accountability measures to provide some transparency of the work they do.
In contrast, the DEP Office of Economic Analysis is a black hole.
The Office is NOT authorized by any act of the Legislature. Yet it has a significant role in using economics to interpret and apply environmental laws, sometimes in ways that contradict the standards in the law or otherwise conflict with legislative intent.
There is no openness or transparency - no website, no mission statement, no policy and procedures, no public review or participation, and no disclosure of the intervention of the Office in various DEP functions.
And now DEP has just confirmed that.
So, just what are they doing in that Office?
We will get to the bottom of this one, even if it takes a litigation crowbar.
Here is the OPRA request and DEP denial:
According to DEP website and public remarks of Assistant Commissioner Siekerka on 8/20/12, the DEP’s Office of EConomic Analysis is tasked with conducting “cost benefit analysis” of agency policy and regulatory proposals. I request copies of all public records of the Office of Economic Analysis, including: 1) all cost benefit analyses conducted; 2) all comments and records regarding the Office’s review of DEP policy and/or regulatory proposals, including Reports, written comments, emails, meeting logs and meeting notes; 3) all documents authored by and emaisl of Ben Witherell, Director of that Office, regarding review of DEP policy and/or regulatory proposals.
Her is DEP’s denial:
Addendum Disposition Notes: This request has been denied on the basis that the request is overly broad and of the nature of a blanket request for a class of various documents rather than a request for specific identifiable government records, thereby being an invalid OPRA request (See Gannett NJ Partners v Middlesex, 379 NJ Super 205, 212 App Div 2005). In addition, OPRA does not require the NJDEP to conduct research & correlate data pursuant to N.J.S.A. 47:1A-9 & Mag Entertainment v Div of Alcoholic Beverage Control 375 NJ Super 537 (App Div 3/05), Bent v. Stafford Police Dept 381 NJ Super 534 (App Div 2005), and GRC Decision in Asarnow v Dept of Labor & Workforce Development, GRC Complaint # 2006-24 (May 2006).