TRENTON – The latest move in what has been an aggressive Murphy-administration effort on climate change comes in the form of proposed emergency rules from the state Department of Environmental Protection (DEP).
Emergency rules are subject to a finding of “imminent peril to public health, safety, and welfare.”
As the public health emergency recedes, DEP appears ready to act on its climate change agenda, as if the same level of emergency response is warranted.
Several environmental groups applauded the move while numerous business associations opposed bypassing standard procedures.
The emergency rulemaking, as described by DEP, would increase fluvial land areas in flood zones with a focus on inland flooding caused by stormwater runoff. It also alters non-tidal flood elevations by 2 feet.
The altered rules would require the use of current and future projected rainfall rates instead of historic data on precipitation. New data, based on century-long projections, would then be used to update stormwater management requirements.
The DEP presentation states that “municipalities would have one year after rulemaking to amend their stormwater ordinances.”
New calculations for stormwater runoff are necessary, the DEP states, because the “precipitation expectations that presently guide state policy,” data obtained through 1999, “do not accurately reflect current precipitation intensity conditions.”
In large part, the state’s experience with Tropical Storm Ida is used as an important component of the finding of “imminent peril.”
A coalition of 19 business, labor and real estate development organizations wrote to Gov. Phil Murphy June 3, demanding that he delay the advancement of emergency rules. They argue that such rulemaking is detrimental to the overall economic health of the state in an environment in which the DEP has failed to prove that an imminent peril exists.
Reaction to the rulemaking is based on presentations made by DEP in the absence of the actual language of the rules still being drafted.
According to the coalition letter to Murphy, the rules would alter flood elevations and mapping of inland areas while more generally requiring a change in how future rainfall amounts will be calculated.
The letter argues that the DEP’s action “will have dire economic consequences on potentially thousands of projects, including those involving infrastructure, low-income housing, and those in economically disadvantaged communities.”
The thrust of the objection spelled out in the letter to Murphy and comments made by numerous chambers and business associations is that the DEP’s aggressive use of emergency rulemaking fails to meet the threshold test in the Administrative Procedure Act.
“There is no imminent peril and, thus, no reason to deviate from the normal rulemaking process,” the letter states.
This is an objection added to others that stretch back to the management of the pandemic, arguing that the Murphy administration is too eager to use findings of a state of emergency as a way to justify unfettered executive action.
In its presentation on emergency rulemaking, DEP has argued that it will file a proposal to enable the emergency rules to remain in force past the 60 days normally allowed for emergency provisions.
The strategy is clear. DEP intends to promulgate the emergency rules, have them take effect immediately, call for required public comment only after the rules are in place, extend the tenure of the rules past the normally allowed 60 days, and essentially get its rules in place until the agency is ready to file its entire New Jersey Resilient Environments and Landscapes (Real) Proposal with its sweeping alterations to land use regulations.
For those in opposition, as characterized by the June 3 letter to Murphy, if DEP can successfully define the current environment as one in which “imminent peril” justifies the abandonment of formal rulemaking, then the state stands vulnerable “to significant unintended consequences, which far outweigh any need to issue this rule prior to a complete rulemaking process.”
To contact Vince Conti, email conti@cmcherald.com.
