Trenton — New Jersey’s environmental agency does not have a current list of contested administrative appeals nor does it track the outcome of these enforcement actions, according to documents released today by Public Employees for Environmental Responsibility (PEER). The anti-pollution enforcement rigor of the state Department of Environmental Protection (DEP) is increasingly being questioned but the absence of firm data blurs attempts at systemic review.
On June 13, 2012, New Jersey PEER Director Bill Wolfe submitted an Open Public Records Act (OPRA) request asking for “a database or list of DEP’s contested cases pending at the Office of Administrative Law (OAL) plus OAL initial and final decisions over the past ten years together with the “DEP commissioner recommendations and final orders” on those decisions. In a July 9 response, DEP told Wolfe it will require “3 weeks [of] data reconciliation” to produce the lists.
“If DEP is not actively tracking its pending cases, its enforcement program is flying blind,” Wolfe stated. “This is like a District Attorney not knowing the status of his prosecution caseload.”
Ironically, this data was called “integral” to DEP’s regulatory mission in Governor Chris Christie’s controversial Red Tape Review Group report issued April 19, 2010. Indeed, its recommendations highlight contested cases at OAL as critical to determining the degree of reform required:
“Administrative adjudication is a basic regulatory responsibility of each State agency, and that authority composes a significant integral aspect of each agency’s overall regulatory authority.” (Page 22)
Moreover, the OAL review process is the subject of pending legislation (AB1521) which would strip the DEP Commissioner’s power to review proposed OAL decisions and would make administrative law judge rulings the final judgment. While the bill covers many agencies, DEP is the clear target.
“Not only is this another case of legislating in the dark but OAL lacks environmental expertise and very often issues the wrong decision,” Wolfe added, noting that industry support for the bill is a sure sign that their lawyers think they will get a better deal from OAL. “The net result of this bill will be more red tape, more litigation and less environmental protection.”
At the same time, pollution enforcement is plummeting in New Jersey precisely because of the growing thicket of procedural roadblocks erected by the Christie administration. As a result, DEP is negotiating and settling enforcement cases with dramatic reductions in fines and little follow-through to make sure pollution discharge limits are followed.
“In New Jersey, polluters get so many bites at the enforcement apple that there is no fruit left at the end,” Wolfe concluded.