Will New Jersey Open up Environmental Decision-Making?
Corzine Denial of DEP Transparency Rules Creates Opportunity for Christie
Trenton — The New Jersey Department of Environmental Protection has once again rejected a package of transparency rules proposed by Public Employees for Environmental Responsibility (PEER). The action, published in the New Jersey Register this week, leaves it to new Governor Chris Christie and his DEP Commissioner Bob Martin whether the scandal-plagued agency will adopt open government rules.
In his Tuesday inaugural address, Gov. Christie declared that “Today, a new era of accountability and transparency is here.” Similarly, Commissioner Martin ran for a state senate seat in 2007 on a platform of ending agency corruption in Trenton. The DEP has been at the heart of recent “pay-to-play” indictments as well as well-publicized cases of suppression or alteration of scientific studies due to lobbyist pressure.
The PEER rules would have required public disclosure of meetings and communications between DEP policy makers and representatives for regulated industries and developers. DEP routinely conducts these meetings to negotiate permits, enforcement actions and health standards behind closed doors. The PEER plan would also require that calendars of top officials be posted on the web. In addition, PEER proposed that DEP end gag orders so that scientists, inspectors and other professional staff can speak honestly to the public and the media without fear of retaliation.
The DEP rejection of the PEER transparency package was made by the outgoing Corzine administration on the basis that public knowledge about meetings of top agency officials would “chill communications”:
“Rules that would mandate disclosure of senior staff calendars would have the potential to chill communications with the many constituencies with whom the Commissioner and other high level managers meet. Nero v. Hyland, 76 N.J. 213, 226 (1978), quoting United States v. Nixon, 418 U.S. 683, 708 (the point of executive privilege is to ensure that those assisting the executive freely explore alternatives in the shaping of policies and are permitted to do so “in a way many would be unwilling to express except privately”). The identity and the sequence of the persons with whom Department senior staff consult could reveal the substance or direction of the judgment or mental processes of the Commissioner and Department staff.”
“The official embrace of executive privilege is precisely the problem at DEP. Anytime an agency wraps itself in the rhetoric of the Nixon White House case for secrecy (U.S. v. Nixon) it is time to watch out,” stated New Jersey PEER Director Bill Wolfe, a former DEP analyst, noting that top officials at U.S. EPA now post their calendars without apparent ill effect. “If the Christie administration wants to restore public trust at DEP, the first step is to open the closed doors that now shield lobbyists, lawyers and consultants working the back channels.”
The Christie administration has yet to indicate whether it will outlaw gag orders that restrain DEP scientists, engineers and other specialists from disclosing data and technical findings or whether scientific papers will still remain subject to political review before release.
“Genuine transparency means that the public can see information regardless of whether it supports the Commissioner’s policy,” Wolfe added. “We will explore whether we should re-submit these rules once again to the Christie administration.”
PEER first proposed these rules in 2007 but then-DEP Commissioner Lisa Jackson rejected the rules on the very day they were published. PEER re-submitted the rules again in July 2009 and this time DEP requested extensions to further consider the proposal but, despite the months of additional review, issued the same decision couched in virtually the same language as before.
New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability