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Back Door Industry Access Blocks and Delays Protections

Delays meant that many DEP rules were postponed or never issued

[Update: 7/23/14 – The DEP quietly filed a NJ Register notice to readopt the Highlands rules on 12/2/13. The readoption procedure was a recent change in law under the bill that extended the expiration date from 5 to 7 years. I testified in opposition to that bill and wrote about it, but missed that provision at the time. Mea culpa. Regardless, that still makes my point that the issue was managed under the radar. DEP did not publicly defend the rules and the public was given no opportunity to participate in the re-adioption process, as was the case under prior law. Post updated today because I am noticing hits on this, probable in response to this – Sorry, I can not spend tome updating all posts in light of new information. end update.

Update: 12/16/13 – Some people, who apparently know nothing about rule making, are spinning to downplay this story as “the DEP extended the rules earlier this month”.

Even if true (an I reviewed most recent NJ Registers and did not see an extension notice), that makes my point.

It is unusual to have a rule expire and a huge embarrassment to allow a major rule to expire, especially after having the Legislature extend the sunset period from 5 to 7 years. Rules don’t technically “expire” in a legal sense (like a contract does, i.e. and become null and void), but remain in effect pending the formal extension, which occurs via Governor’s notice of extension.

That’s why the law requires that any extension after expiration be subject to a notification in the NJ Register – to hold the agency that allowed the rule to expire accountable and public notice their mismanagement and indecision. The extension must also state a specific deadline for the agency to adopt rules.

Second, an extension is NOT a re-adoption of the rule.  If DEP were to readopt the rule, that would be a reversal of DEP’s prior position, in response to the Farm Burea litigation, to weaken the rules.

Last, the extension occurred AFTER the election, which was precisely my political point. The Christie DEP dodged accountability and delayed major policy decisions and action for political reasons.

There seem to be many useful idiots running around the Highlands who don’t know what they are talking about.

In fact, I discussed this issue very recently with 2 members of the Highlands coalition. Their response was “be quiet” don’t bring attention to this because the Administration might weaken the rules. Idiots – as if closing your eyes will make the problem go away. Ed update]

For almost 4 years now, I have written numerous posts about Governor Christie’s across the board assault on government and our regulatory protections via “regulatory relief” and “red tape” policies, and the threats they pose to public health and the environment.

In his first hour in office, Governor Christie issued:

• Executive Order #1 establishing a moratorium of regulations;
• Executive Order #2 calling for “immediate regulatory relief”, cost benefit analysis, and rollback of NJ’s strict State standards to their federal minimum;
• Executive Order #3 attacking regulations as “job killing red tape” and
• Executive Order #4 prohibiting unfunded state regulatory mandates on local governments

I have explained how those policies have blocked DEP from issuing new rules in light of new science and new needs – and how the Christie DEP has set a record low for the number of regulations they have adopted.

I have written about how those policies inject new considerations, like cost benefit analysis into the rule making process and how this elevates economic considerations above public health and the environment and how all this undercuts science and harms various standards and protections.

The Obama Administration’s  “Regulatory Czar” Cass Sunstein frankly admitted how that works:

In his revealing book, Sunstein tells us why: It is because he, Sunstein, had the authority to “say no to members of the president’s Cabinet”; to deposit “highly touted rules, beloved by regulators, onto the shit list“; to ensure that some rules “never saw the light of day”; to impose cost-benefit analysis “wherever the law allowed”; and to “transform cost-benefit analysis from an analytical tool into a “rule of decision,” meaning that “[a]gencies could not go forward”if their rules flunked OIRA’s cost-benefit test. (see: Sunstein’s ‘Simpler Government’ Is Legally Suspect, Overly Secretive And Politically Unaccountable

BTW, NJ law does not even allow cost benefit analysis, so Gov. Christie has managed to weaken all NJ laws by the stroke of his Executive Order pen, an over-reach that cries out for legislative oversight and veto.

I’ve explained how Gov. Christie’s Executive Order #2 is designed to provide “regulatory relief “. I’ve shown how the key mechanisms to do that is to provide regulated industry access – sometimes through “Red Tape Czar” Lt. Gov Guadagno’s Office  – and an advance notice on DEP’s development of rules – a heads up that has amounted to a veto power, based on the paucity of DEP  rules adopted.

EO #2 mandates: that DEP (and all State agencies)

“Engage in the “advance notice of rules” by soliciting the advice and views of knowledgeable persons from outside of New Jersey State government, including the private sector and academia, in advance of any rulemaking to provide valuable insights on the proposed rules, and to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted. 

There can be no doubt what the intent of that EO is – to kill “unworkable, ill-advised and overly prescriptive” regulations before they even see the light of day and are publicly proposed- as determined by lobbyists and lawyers for the Chamber of Commerce, the Business & Industry Association, the NJ Chemistry Council, and the NJ Petroleum Council.

And I have warned about why the Lt. Governor’s “Red Tape Czar” role to provide access and review draft regulations prior to their proposal invites abuse, from developing science and regulatory standards, to pay to play to, opportunities for industry lawyers and scientists to gut rules before they are even proposed.

I’ve been working on a story about a huge backlog in DEP rules that are slated to expire in 2014, but have not yet finished my research.

However, reading this story in today’s Washington Post: White House delayed enacting rules ahead of 2012 election to avoid controversy prompts me to accelerate and unfurl the first story in what I had planned as a series.

The WaPo reports:

The White House systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election, according to documents and interviews with current and former administration officials. […]

The delays meant that rules were postponed or never issued. The stalled regulations included crucial elements of the Affordable Care Act, what bodies of water deserved federal protection, pollution controls forindustrial boilers and limits on dangerous silica exposure in the workplace. […]

At the Environmental Protection Agency, for example, a former official said that only two managers had the authority to request a major rule in 2012: then-administrator Lisa P. Jackson and deputy administrator Bob Perciasepe. Perciasepe and OIRA’s director at the time, Cass Sunstein, would have “weekly and sometimes semi-weekly discussions” to discuss rules that affected the economy, one said, because they had political consequences, the person said. […]

Several significant EPA proposals were withheld as a result of those meetings, officials said, including a proposal requiring cleaner gasoline and lower-pollution vehicles that had won the support of automakers but angered the oil industry.

Well, we have a very similar story to tell right here in NJ.

As I’ve written, based on multiple source in state government and several illustrations, the Governor issued a state government wide edict for state agencies to avoid controversy and stay below the radar in the months before the election.

One of those controversies is the DEP regulations that strictly limit development in the NJ Highlands (for a small taste of that debate, see:  Is Bob Martin Sabotaging The Highlands Septic Density Standard?

Martin was able to defer that debate on the Highlands – and many other rules – because the Legislature amended the law to extend the “sunset” expiration timeframe from 5 years to 7 years.

But now, the jig is up – there’s no place to hide.

Those controversial DEP Highlands regulations expired on November 2, 2013.

The DEP allowed the rules to expire for political reasons to avoid controversy before Gov. Christie’s election.

Will NJ’s press corps jump on that story now that the WaPo has opened the door?

We’ll keep you posted, as we write about the other major DEP rules slated to expire this year.