DEP Abused Regulatory Procedure To Shield The Governor From Criticism
Re-adoption of Coastal Rules Without Change Before Election – Massive Rewrite After Election
Cynical Bait & Switch Undermines Democratic Accountability
Some of the most controversial economic, public policy, and political issues NJ has ever faced were raised by Superstorm Sandy – particularly issues surrounding how the Christie Administration prepared for Sandy and sought to rebuild the shore, especially in light of the need to adapt to climate change.
So, obviously, the Governor’s coastal redevelopment policies should have been a focal point of press coverage and public debate during the 2013 Gubernatorial campaign.
In fact, public opinion polls showed that Governor Christie benefitted from a huge increase in favorable opinion as a result of how he responded to Sandy’s devastation, see:
The last thing Gov. Christie wanted during the run-up to the election was critical media coverage like this:
So, he took steps to avoid that.
Follow this to understand how DEP grossly abused their power to do this. Telling this story requires that I delve into the regulatory weeds on the chronology - what DEP did before and after the election on the same rule – and lay out the basic theory of government to illustrate why that was such a gross abuse. So bear with us as we try to do so.
- The Current DEP Proposal
On June 2, 2014, Governor Christie’s DEP proposed a massive 1,000+ page re-write of 40 years of coastal land use and natural resource protection policy.
That controversial proposal has generated significant criticism of the Governor, primarily for DEP’s failure to consider climate change, sea level rise, and the lessons learned from Sandy. (see
- Christie administration still wearing blinders on sea level rise (Star Ledger)
- Why Doesn’t DEP Believe in Climate Change? (NJ Spotlight)
- Christie’s Climate Denying Coastal Rule Must Be Blocked By The Legislature
Instead of reforms designed to adapt to the huge challenges of coastal sea level rise and reduce risks to life and property, the Christie proposal would invite even more development to NJ’s highly vulnerable coast.
- The Stealth Re-adoption of the Same Rule Prior to the election
While the current DEP proposal is generating huge controversy, virtually no one knows that less than a year before the DEP published the current massive re-write – just months before the November election – on July 1. 2013 DEP quietly posted a notice of re-adoption of the rule, without change.
The DEP readopted the coastal rules – without change – for another 7 year period.
Yet less than 1 year later, the DEP totally rewrote the same rule!
That stealth move by DEP in July 2013 – basically hiding the Governor’s coastal development policy – kept critical coastal development policy issues below the radar and shielded the Governor from the intense criticism he is getting right now.
- Why DEP’s bait & switch is a fundamental abuse
The DEP’s quiet 2013 pre-election re-adoption of the coastal rule with no change was followed less that a year later with a post election re-write.
That is an incredible abuse that violates fundamental principles of administrative law and Constitutional separation of powers.
Under our Constitutional scheme, the Legislature sets policy through laws. The Executive implements that policy.
The public is supposed to have a voice in policy, and that voice is expressed in both elections and during the various government processes that set policy.
Legislators enact laws in open sessions and they are accountable to the voters for the laws they pass. That’s how representative democracy works.
That is, at least in theory, what the “separation of powers” is about.
But, in actual practice, legislative and executive powers are not separate, but are blended or shared powers.
The laws Legislators pass delegate power to Executive Branch officials to “fill in the details” required to implement and administer the laws consistent with the policy set by the legislature. These “details” are filled in in regulations.
Regulations have the force and effect of law.
But regulations are written by unelected Executive Branch officials who are not accountable to the voters.
Because regulations blend Executive and Legislative branch powers, they must be adopted by procedures that provide transparency, accountability, and due process.
These procedures include giving the public an opportunity to review and comment on proposed regulations, including at least one public hearing.
These procedures are the means for holding the Executive Brach agencies who write the rules accountable to the public, to the legislature who passed the law, and to the laws that authorize the regulations (which provides a factual record that enables the Judicial branch to hold the Executive Branch accountable to law).
Regulators are often criticized as “unelected bureaucrats” for effectively usurping the powers of the Legislature via undemocratic and unaccountable regulatory means.
That is why the regulators must follow laws that require that their regulations be subject to public review.
In July of 2013, the Christie DEP – if quietly – told the public that there would be no change in coastal policy for at least 7 years. That was the policy record theoretically available to voters going into the election.
But shortly after the election, Christie announced a massive and controversial re-write of coastal policy to promote even more development at the shore, while ignoring climate change.
The cynical Christie DEP played political games and grossly abused our entire Constitutional scheme of government.
And that is shameful.
[PS - if we had a functional legislature, media, or even a professional Bar Assc., this kind of abuse would be a big deal and sternly criticized. But sady, we don't.]