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The Pinelands Commission Has Surrendered Complete Control To Gov. Murphy

Commission Allows Gov. Office to Dictate Policy And Control Regulation

An Independent Commission No Longer Exists

Murphy’s Corporate Appointments Put Gov. In Total Control

I was just stunned by reading the Pinelands Commission’s June Monthly Management Report.

I was stunned by how openly they admit that they have completely surrendered political power and control over policy to Gov. Murphy.

This is contrary to the law and longstanding practice.

Under the law that created the Commission – The Pinelands Protection Act – the Pinelands Commission is established as essentially an independent regional planning and regulatory agency. (The Act also recognizes and incorporates federal law and a federal representative is on the Commission, thus federal power further reduces the power of the NJ Governor.)

The Act explicitly emphasized the Commission’s independence and shields the Commission from Executive branch and DEP influence:

For the purpose of complying with the provisions of Article V, Section IV, paragraph 1 of the New Jersey Constitution, the commission is hereby allocated within the Department of Environmental Protection, but, notwithstanding said allocation, the commission shall be independent of any supervision or control by such department or by the commissioner or any officer or employee thereof.

Under the Act, the Commission is delegated comprehensive land use planning and regulatory powers.

In contrast, the Gov. is granted limited powers:

  • the power to appoint 7 members of the Commission (who must be qualified and approved by the Senate and do not constitute a majority of the 15 member Commission),
  • the power to appoint the Executive Director (who is not a policymaker, but instead reports to the Commission),
  • a negative power to veto the minutes of the Commission to block action (see:  NJSA 13:18A-5).
  • The Gov. may also appoint a Citizens advisory Committee with which the Commission is required to consult in developing the Comprehensive Management Plan (CMP) (see NJSA 13:18A-10).
  • The Act also requires that the CMP be submitted to the Governor – after it is adopted – but does not say anything about the Gov. having any review or approval powers over it or any role in the substantive content of the CMP and implementing regulations (and certainly not pre-proposal review)

“[T]he Governor’s authority is limited to that delegated to him by the Legislature” in the Act. Dalton, supra, 213 N.J.Super. at 575, 517 A.2d 1224;see also Brown, supra, 62 N.J. at 5–11, 297 A.2d 572 (upholding delegation against constitutional challenge). (NJ Supreme Court)

As such, the Pinelands Commission has positive powers to initiate and craft plans, enact policies, and adopt regulations to protect the natural resources of the Pinelands.

Historically, Governors have selectively politicized the Commission, generally on specific or high profile issues of concern to the Governor, or on appointments.

But that power and influence have been selective, discreetly exercised, and masked.

The Commission has largely maintained its independence, attempted to insulate its professional staff from political pressure, and sought to avoid overt politicization and deference to the Governor.

The erosion of the Commission’s independence and the balance of power between the Commission and the Governor began to change under Gov. Christie and is now rampant, systemic and overtly acknowledged.

Just check out how the Commission staff now openly admit that the Gov. is calling the shots. Here’s a blurb from the June Management report on the long delayed Kirkwood-Cohansey water use regulations (emphases mine):

Water Management (Kirkwood-Cohansey): Staff submitted the full draft rule proposal to the Governor’s office for approval on May 19, 2022 and were notified that the Commission could proceed with the proposal on June 22, 2022. A resolution authorizing the proposal of Comprehensive Management Plan (CMP) amendments has been listed for consideration by the Commission at its July 8, 2022 meeting.

Did you get that?

The Commission sought pre-proposal content review and approval by the Governor’s Office for proposal of a science based technical regulation.

There is no legal procedural step in the Pinelands Protection Act or the NJ Administrative Procedure Act that authorizes or requires the Commission to solicit Gov. Office approval and there is no statute that authorizes the Gov. to have approval power over regulations of the Commission.

But that’s not all.

The Commission’s June Monthly Report also reveals Gov. Office control over 2 other important policy issues:

The DEP is influencing the Commission’s climate and stormwater regulations – but note that the Commission has no access to what the DEP is doing (i.e. “nor have staff been provided with the text of the emergency rules.”):

NJDEP Protection Against Climate Threats (PACT): Staff met with NJDEP on June 6, 2022 to discuss the portions of the NJPACT rules that the Department proposed to implement through an emergency rulemaking. The emergency rules were expected to be filed on June 14, 2022. However, as a result of opposition to this emergency rulemaking, NJDEP delayed its filing. Staff has requested information from NJDEP as to when the emergency rulemaking may be filed in the future, but has not received a response, nor have staff been provided with the text of the emergency rules.

Stormwater Management: Staff members are nearing completion of a draft model stormwater ordinance that will be reviewed with the New Jersey Department of Environmental Protection (NJDEP) and then distributed to Pinelands municipalities for adoption. Distribution of the ordinance has been delayed pending NJDEP’s adoption of emergency rules that may need to be incorporated in the Pinelands model stormwater ordinance.

Finally, the Commission has deferred the exercise of independent authority to adopt climate policies to the Gov.’s “Interagency Council on Climate Change”:

  • Interagency Council on Climate Change (IAC): Staff participated in a meeting of the IAC’s Environmental Systems and Land Use (ESLU) Advisory Group on June 2, 2022. Member agencies of the ESLU Advisory Group include NJDEP, NJ Dept of Agriculture, NJ Dept of State, Highlands Council, NJ Sports and Exposition Authority and the Pinelands Commission. Input from the group was sought regarding the role and duties of each member agency in the development of Resilience Action Plans. Additionally, recommendations for climate change subject matter experts that will assist the Advisory Group in the development of RAP’s was sought and received. Staff also participated in the IAC’s Communications Working Group on June 1, 2022.

This is an astonishing abdication by the Pinelands Commission and a usurpation of power by Gov. Murphy.

The total politicization of the Commission was apparent when Gov. Murphy rammed through his recent appointments to the Commission of his corporate friends.

Again, we told you so:

The Star Ledger editorial board excoriated Gov.Murphy’s nominations of these individuals as “a craven power play”, a “brazen” attempt to “gut the Commission during lame duck”, and a “scheme” that was similar to the “bullying” by Gov. Christie.

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