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Democratic Legislative Leaders Urged To Reform NJ’s Administrative Law

Transparency, Accountability And Public Participation Sorely Lacking

Climate Impacts And Environmental Justice Issues Are Not Considered Under Current Law 

If NJ Governor Murphy – who has issued scores of toothless Executive Orders purportedly to implement his policy agenda – were serious about governing (instead of posturing by press release), here are some of the in the weeds but critical reforms he would be championing.

Similarly, if NJ had a functioning democracy, a legitimate press corps, a public interest law bar, law schools populated by Deans and professors who recognized an obligation to the public interest, or competent environmental leaders, they too would be seeking these kind of “good government” reforms.

But nobody advocates for the “public interests” or does real governing anymore. (which is something to think about in light of the historic failure and gridlock of Weimar Germany, which paved the way to the Nazi fascists, an historic dynamic now underway).

Neoliberal market based schemes (think “divestment movement” and “cap and trade”), corporate technological utopianism (think “carbon capture” and “geo-engineering”), false solutions (think “plastic recycling”), slogans, press releases, symbolic gestures, virtue signaling, and social media are a lot more fun and profitable. Real stuff like you can read below is way too wonky.

As a result, government and democracy have been hollowed out. Merely a facade remains. Professor Sheldon Wolin called it “Managed Democracy” and “Inverted Totalitarianism”.

The private corporate interests have captured DEP, the revolving door is swinging, and private interests are in complete control.

I just sent the letter below to Senate President Scutari (former Chair of the Judiciary Committee) and Senate Environment Committee Chairman Bob Smith. It’s about the most important law you never heard of, the NJ Administrative Procedure Act.

I’m not holding my breath for a reply:

Dear Senate President Scutari and Chairman Smith:

I am writing to seek your support of amendments to the NJ Administrative Procedure Act (APA) to modernize and strengthen that core law in light of recent policy, science, and legal developments and Governor Murphy’s Executive Orders.

Policies and procedures ripe for reform include, but are not limited to the following issues:

1. Climate Impact Statements

President Biden and Governor Murphy have both emphasized the need for a “whole of government” approach to the climate crisis.

One key element in such an endeavor is State agency rulemaking in accordance with the APA.

As you know, current APA analytical impact statement requirements include social, economic, environmental, jobs, agricultural industry, regulatory flexibility, housing affordability, smart growth development, and Racial and Ethnic Community Criminal Justice and Public Safety impacts.

Surely, in light of the climate crisis, the goals of the Global Warming Response Act, and Governor Murphy’s Executive Orders, climate considerations warrant similar impact assessment in State agency rulemaking.

2. Environmental Justice Impact Statements

The legislature recently passed and Gov. Murphy signed “groundbreaking” environmental justice legislation.

However, that law applies narrowly to certain DEP permit programs.

One means of strengthening the implementation of environmental justice goals would be to include an EJ impact statement requirement in the APA.

3. Petitions for rulemaking

The current provisions of the APA include petition content requirements and delegation of authority to State agencies to establish individual regulatory petition requirements for the content and agency review of petitions.

There is no uniformity in agency implementation requirements of these provisions, leading to inconsistent and conflicting petition content standards, review procedures, and policies.

For example, I recently flied identical rulemaking petitions jointly to DEP and the Pinelands Commission. Both were accepted by DEP but both were rejected as “incomplete” by the Pinelands Commission. The Commission even goes so far as to mandate inclusion of specific regulatory language, among several other content requirements that are far broader and more burdensome than the statutory content requirements of the APA.

Neither the Office of Administrative Law (OAL) nor the Attorney General’s Division of Law is supervising consistency across state government, and OAL has no statutory authority to do so.

Additionally, DEP does not solicit or accept public comments on petitions they public notice in the NJ Register. In a revealing and highly unusual move, DEP accelerated their 7 day deadline to respond to OPRA requests and in less than 24 hours arrogantly wrote this:

“The NJDEP does not solicit or collect public comments on a petition for rulemaking.”

They don’t respond to them either. That is an anti-democratic practice that must change.

Current law could be strengthened by establishing uniform content requirements across state government and requiring agencies to solicit and respond to public comment, which would then be subject to judicial review as final agency action.

4. Stakeholder Processes and Negotiated rulemaking

DEP has conducted numerous informal “Stakeholder processes” in the absence of legislative authority or safeguards to assure transparency, accountability, disclosure, ethics, scientific integrity and conflicts of interest.

These processes effectively constitute negotiated rulemaking under the APA.

In one case, a NJ Court ruled that Stakeholder participation and concurrence with draft regularly language during the Stakeholder process precluded litigation challenge. Participants are completely unaware of these kind of risks.

Reforms are badly needed.

5. Standing To challenge Agency Action Before OAL

The current APA standing standard undermines public interest advocacy and weakens  judicial review and agency accountability.

Reforms need to be explored to relax this standard,

6. Enhanced transparency, accountability, and public participation

The APA framework needs to be comprehensively reconsidered in light of how it advances or frustrates these objectives.

Reforms need to be explored.

7. Rulemaking calendars

DEP, and I assume other state agencies, simply ignores the rulemaking calendar requirements of the APA and routinely provides a 60 day comment period, thereby defeating the intent of the calendar requirements.

8. Emergency Rules

The current controversy over DEP “emergency” rule proposals of climate PACT regulations highlights the importance of more clearly defining the conditions that constitution an “emergency” under the APA.

The COVID pandemic raised similar issues.

9. Readoption without change

The effective timeframe, or expiration date of regulations, was recently extended from 5 to 7 years.

While I understand the need for predictability and reliance on a regulatory framework, that’s a long time and a lot changes over 7 years, including facts on the ground, scientific knowledge, policies, and laws.

State agencies should not be able to merely readopt without change.

A good start on exploring these issues would be a series of joint oversight hearings by the Judiciary Committee and the Committee of jurisdiction over each State agency.

I appreciate your favorable consideration and timely response and look forward to working with OLS and interested parties in advancing these reforms to the APA.

Respectfully,

Bill Wolfe