NJ Environmental Groups Urged To Abandon Support of Murphy DEP’s Plan To Propose “Emergency Rules”
Climate Emergency Does Not Meet Legal Test Of “Emergency” Under Administrative Law
DEP Certain To Lose Lawsuit On Procedural Grounds
This will set back regulations by several more years
Absent “an imminent peril to the public health, safety, or welfare,” the APA requires public notice and an opportunity for comment before the adoption of any rule. See N.J.S.A.52:14B–4. (NJ Supreme Court)
Once again, NJ environmental groups are totally fucking up an already bad situation – it is unclear whether this pending disaster is a result of incompetence or cowardice – or both.
After years of “Stakeholder” meetings, Executive Orders, press releases, and promises, the Murphy DEP has delayed proposal and adoption of climate adaptation regulations they have dubbed “PACT” (i.e. DEP flooding, stormwater, coastal, and wetlands land use regulations).
During this delay, NJ has again suffered climate related devastating flooding and loss of life.
Equally disturbing, during this delay, DEP has approved hundreds of land use permits and related approvals that put even more people and property in harms way, thereby exacerbating NJ’s national negative profile as a FEMA “repetitive loss” State.
I’ve suggested a strategy environmental groups can use to respond to problems created by DEP’s delays, see:
Obviously, this has been a huge embarrassment to Gov. Murphy and DEP Commissioner LaTourette.
Despite these massive failures, NJ Environmental groups are very reluctant to criticize Gov. Murphy and DEP Commissioner LaTourette (cowardice). Those same groups lack regulatory expertise and experience (incompetence).
To try to repair the damage of delay and expedite regulations, the DEP recently publicly announced that they would propose & adopt what are known as “emergency regulations”.
I wrote to explain why this is a very bad idea, see:
Despite this pending regulatory train wreck, NJ environmental groups have mounted a campaign urging the Gov. and DEP to propose fatally flawed emergency rules. On June 21 NJ climate activists wrote a letter to Gov. Murphy demanding that DEP propose emergency rules. Today, I received an “Action Alert” from the NJ Highlands Coalition and NJ LCV:
We are calling on citizens like you to urge Governor Murphy and DEP Commissioner Shawn LaTourette to adopt the new emergency stormwater and flood hazard area rules to protect our life and property. Please link below to the NJ League of Conservation Voters’ take action tool to communicate your concerns to the Governor and the Commissioner.
In hopes of averting this disaster, today, I wrote them a similar warning that I gave to DEP Commissioner LaTourette (with copies to Senators Smith and Greenstein and NJ media):
Folks – I’ve received your several action alerts urging adoption of DEP emergency rules (PACT/land use).
I think you are making a serious mistake and strongly urge you to reconsider.
While we do have a “climate emergency”, we do not have an “emergency” as defined under the governing law, the NJ Administrative Procedure Act.
The business community has already laid the foundation for both a successful lawsuit (on procedural grounds) and will use those procedural arguments in support of a legislative veto.
If the emergency rules are litigated (which they certainly will be) and then struck down (which they likely will be because Courts don’t defer to agency expertise on procedural issues), it will set back DEP rulemaking by several more years.
FYI, I wrote DEP Commissioner LaTourette to urge him not to propose these rules as “emergency rules”, see:
Murphy DEP Commissioner LaTourette Warned: Do NOT Propose Climate PACT Regulations As “Emergency Rules”
Have you a legal opinion from a competent lawyer to support your position?
Wolfe
[End Note: This passage from the ENGO June 21 letter to Gov. Murphy was such craven bullshit it almost made me puke:
We wish to commend the work of the New Jersey Department of Environmental Protection, NJDEP Commissioner Shawn LaTourette and countless NJDEP staff on this initiative. It is to their credit that the proposed emergency rules were strengthened in the immediate wake of Hurricane Ida early last fall (following on the heels of damage from Tropical Storms Henri and Elsa last summer) to reflect this new normal in inland flooding across the state.
I’d bet that Ed Potosnak of NJ LCV wrote that.~~~ end]