WolfeNotes.com

Bills Invite Industry Challenges to Block State Regulations 

Policy Would Elevate Industry Compliance Costs Above Public Protections

Why would a Committee, Chaired by a liberal pro-environment Democrat, with a Democratic majority, be releasing these kind of right wing, ALEC, Koch Brothers, corporate attacks on popular and effective public health and environmental protections?

After hearing about 15 minutes of testimony by environmental groups – and with no deliberation whatsoever – today the Assembly Regulatory Oversight Committee dredged up and approved 2 controversial and significant bills that originate in Gov. Christie’s assault on environmental and public health and safety regulations.

In the first hour of his first day in office, Gov. Christie issued 4 sweeping Executive Orders designed to block new regulations and rollback existing regulations in order to provide “regulatory relief” to business and industry.

• EO #1 established a 90 moratorium on new regulations and a review of rules in the pipeline;
• EO #2 set a policy of “regulatory relief”; urged that stricter NJ State regulations be rolled back to their federal minimums; and required cost/benefit analysis to justify any new rules;
• EO #3 created the Red Tape Review Commission to attack “job killing red tape”; and
• EO #4 prohibited unfunded state regulatory mandates on local governments.

The bills today would directly implement Governor Christie’s ‘”regulatory relief” and  cost/benefit policy under EO#2 and one of the recommendations of Lt. Gov. Guadagno’s Red Tape Commission Report.

• New “Efficacy” Review & Cost Benefit Analysis Requirements

The more damaging bill, A3804 (Casagrande) would require that State agencies conduct 2 new reviews prior to the re-adoption of existing rules and the proposal of new rules.

[That anti-LNG protest cover sure wore off Assemblywoman Casagrande real fast]

According to the Statement on the bill:

The review would require State agencies to determine whether the benefits of the rule continue to  outweigh the costs and burdens of the rule, and whether the rule remains effective or has become outdated. The State agency would be required to report its findings to the Governor and the Legislature, and to the public in the New Jersey Register.

Additionally, this act would require State agencies to conduct a regulatory impact analysis of all proposed administrative rules.This analysis would be comparable to the review analysis for existing rules, and the State agency proposing the rule would be required to report its analysis to the Governor and the Legislature, and to the public.

[* Important note: this new cost benefit review would apply also to re-adoption of rules without change. The Legislature recently extended the expiration date of rules from 5 years to 7 years. That law also allowed the DEP to re-adopt rules without change via a simple NJ Register notice. The law would require review prior to expiration of a rule. So, the DEP could no longer do the simple re-adoption without change.

As rules are scheduled to expire, DEP has been readopting many rules without change.

That is a bad idea, because rules tend to need to get stronger as facts and science change. So the obvious intent of this bill is to make it very difficult to strengthen and even to simply even readopt a rule – the intent is to force scaling back or elimination of existing rules.

Scaling back or complete elimination could occur by DEP concluding that the costs exceed the benefits or that

“an alternative rule may better achieve the objective of the existing rule.”

This is just part of the same old discredited industry driven attack to roll back and erect new burdens and barriers to regulations that protect public health and environmental quality.

At the federal level, there is a long history of abuse of cost/benefit analysis requirements.

In addition to elevating economic considerations above protections of public health and the environment, the review process itself provides a back door forum for industry to have access to decision-makers and advance political arguments to block, delay, or weaken science based and democratically popular protections of the public interest.

So, based on years of experience, we know the objective of these analysis.  We know who supports them and why they support them. Gov. Christie’s own “regulatory relief” policy in EO #2 spells out the objectives quite clearly, and the goal is not to better protect your health and environment.

Revealingly, the lobbyists for the NJ Chamber of Commerce and Business and Industry Association did not even feel the need to publicly testify to justify and defend their bill.

That arrogance and lack of accountability ought to tell you something – it surely proves who those bills are written for, and it is not public interest objectives.

Similarly, no legislator even attempted to offer an explanation of or a justification for the bill.

Legislators should be ashamed of themselves for voting for these kind of corporate special interests bills.

• Alleged Conflicts Between State Agency Rules

Th second bill also responds to an old and discredited industry claim that conflicting rules by different state agencies make it impossible to comply, see: (A1879 – Burzichelli).

The bill is not only a poorly thought out and transparent attack on the environment, it encroaches on the Governor’s Executive power over his cabinet agencies and would create even more red tape.

In addition to the state agency conflict issues, an even larger problem would result from how the bill would allow private third parties to file a petition to challenge regulations on the basis of some alleged conflict:

In addition, this bill establishes a procedure whereby an interested or affected party or agency may petition the OAL director  for resolution of an alleged conflict or inconsistency among adopted rules of different agencies. Upon receipt of a petition, the director would determine if a conflict or inconsistency exists. If so, the  director would assign an administrative law judge (ALJ) or other personnel to conduct arbitration, mediation or another form of alternative dispute resolution, which may include a public hearing and the opportunity for public comment, on the matter raised in the petition.

Let me offer one example I was personally involved in at DEP.

In 2002, the McGreevey DEP sought to propose new, more protective storm water management rules, which included new 300 foot wide stream buffers.

The Department of Agriculture objected to those rules and argued that the rules would conflict with Department of Ag rules.

The rules did in fact conflict.

DAg was concerned about protecting farmers.

DEP was concerned about protecting water quality.

Governor McGreevey placed a higher priority on protecting water quality – problem solved. Stronger rules adopted by DEP. Those rules protect over 2,000 miles of stream, as much as 150,000 acres of stream buffers.

But if this bill had been law at the time, DEP would have been blocked by the DAg and been tied up in OAL proceedings for years.

Additionally, the Builders Association would have filed a petition to block the rules as well, based on this conflict.

The result is that the stream buffer and stronger storm water management rules would never have been adopted and water quality would be even worse than it is now.

And that’s just one example f why this bill is very bad – there are scores of others I could offer.

Why would a Committee Chaired by a pro-envrionment Democrat, with a Democratic majority, be releasing those kind of right wing ALEC, Koch Brothers corporate attacks on public health and environmental protections?