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How The Game Is Rigged – Part 78

An unknown reader sent me an email this morning. He noted that he had read my prior post on the climate coalition’s petition for rulemaking, offered some technical criticisms of DEP’s greenhouse gas inventory, and asked me if I would be commenting on the DEP rule proposal and a related EPA rule.

Since he sent me such a thoughtful note, I thought I’d reply in kind and explain why I would not be wasting my time to submit comments to DEP.

Here is my reply, which examines the realities of the DEP “Stakeholder” and rule-making process:

Hi XXXXX – I will not be submitting comments to NJDEP. Let me explain why.

Comments to NJ DEP are largely a waste of time. Once a rule is proposed, it’s just about cast in stone. There are legal, political, and institutional barriers to making any changes in response to public comments.

I worked at DEP for 13 years and drafted and responded to public comments on many proposed regulations. I spent another 20+ years as an advocate involved with DEP rules and did a lot of academic work in the field, so consider myself an expert on rulemaking.

Under NJ law, any change DEP might make in response to public comments, if it is substantive, must be re-proposed as a new rule proposal and go through the entire rulemaking process again. This makes DEP very reluctant to make changes (the law was amended a few years ago  to allow certain previously prohibited “substantive changes on adoption” to be made, but DEP has not used this as far as I know and it has not been tested in NJ courts.)

Politically, the primary reason DEP holds a “stakeholder” process prior to rule proposal is to solicit and get an understanding of the positions of the various industries and environmental groups. The industry lawyers and lobbyists use the stakeholder process to extract information from DEP and to influence DEP staffers who draft the rules. The environmental groups, not so much.

Then, armed with this information gleaned from the Stakeholder process, behind the scenes, industry lobbyists meet off the record with DEP Managers (sometimes even the Commissioner and Gov.’s Office staff, depending on how significant the rule is in terms of triggering industry compliance costs) to “negotiate” various technical concessions, loopholes, exemptions, etc. – they call it “flexibility”. Any changes to a rule after the various “agreements” are reached would undermine or destroy those deals, so this doesn’t happen very often.

This renders the stakeholder process not only a waste of time for the environmental groups, but outright dangerous, because it provides a forum for undue industry access and influence.

Institutionally, the DEP as an institution and the staff as bureaucrats, are very reluctant to make changes, because changes imply errors on their part. They have a lot invested in a proposal. It takes a LOT of work and by the time it is proposed, has gone through months of multiple reviews by DEP management and the Gov. Office, including political reviews. Sometimes, DEP mangers or the Gov.’s office dictate changes to appease the regulated industries (rarely in response environmental groups lobbying). It is very frustrating.

Because DEP staffers have to respond to dictates from management, it generates a certain tension and resentment – so, the last people they are going to make changes in response to is “the public”, who DEP technocrats view as incompetent and political.

The time to pressure DEP for what a regulation should look like is BEFORE any rule is proposed. Once it’s proposed, it’s too late.

The best way to influence and pressure DEP along these lines is via a rule petition and very public campaign targeting the Gov..

The only value of public comments are:

1) to establish legal “standing” to sue DEP (you can’t sue DEP on a rule if you have not commented on it) – as well as the science, data and legal arguments you will assert (this often backfires, because DEP then uses public comments that flag defects to “fix” them, but not in rule text but in some explanation in the response to comments document. DEP does the same thing during the Stakeholder process: they use your criticism against you. This dynamic is kind of like showing your cards before betting);

2) to provide evidence to the press that a proposal is deeply unpopular (or supported by the public) in order to generate news coverage; and

3) to provide evidence to legislators that a rule is deeply unpopular (or  popular) and the technical reason why the rule is flawed (to embolden them to intervene and legislatively veto a rule as “inconsistent with legislative intent”).

To get a rule proposal killed or changed, you need to have:

a) overwhelming public opposition (many thousands of public comments, backed by a highly visible opposition campaign that generates tons of critical press coverage).

b) In addition to all that public opposition and critical press coverage, you also have to have very strong legal and scientific arguments that DEP really screwed up.

c) Support by and a receptive ear in the Gov.’s Office or the DEP Commissioner.

I see no evidence that the environmental groups have mounted the kind of campaign required to do this.

I see no evidence that the environmental groups have the legal and technical skills and capacity required to do this.

I see no evidence that the environmental groups have the political will, independence, and integrity required to do this.

I see no evidence that the press has the capacity or desire to generate this kind of reporting.

The DEP Commissioner is a former corporate lawyer who isn’t going to be burning any bridges with his corporate friends, who he will be working for after he leaves DEP (just as he did before he arrived).

Hope this helps,

Wolfe

[Update: 7/27/21 – Breaking news! (snark).

I now have evidence that NJ climate activists are actually doing something! Yea!

After their Trenton Zoom call with reporters last week (which I mistakenly assumed was an actual State House event), I just learned that Dave Pringle put out an “action alert” yesterday (7/26/21). Cart before horse, and too little too late, again. If I were an activist, I wouldn’t want to learn about this after the fact via reading NJ Spotlight or this blog. At least Pringle correctly targets the Gov., but the only “activism” I can see is a request to sign a petition in support of their petition. I see no campaign, no resources, and no real organizing or field mobilization of activists. Here’s Dave!

From: David Pringle < dpringle1988@gmail.com>

Per our call just now, here’s the info./action alert re: the 7 group Empower NJ Steering Committee with support from 58 additional groups filing a legal petition last week under the NJ Administrative Procedures Act w/ NJDEP calling for rulemaking to cut greenhouse gas emissions 50% by 2030:

     * a couple clips (NJ Spotlight / 101.5), 

     * the press release, 

     * the legal petition, and 

     *  the alert / sign on petition as a first step or one off in helping