Opinion: Why Doesn’t the State DEP Believe in Global Climate Change?

R. William Potter | July 9, 2014 | Opinion
The department's revised coastal regulations runs to 1,000 pages with not a mention of climate change

Credit: Amanda Brown
R. William Potter
Pop quiz: What has 1,000 pages of amendments, 40-plus years of rules protecting the New Jersey coast, will “eliminate red tape” by “streamlining regulatory processes,” and incorporate “lessons learned from superstorm Sandy”?

Answer: According to the Departmental of Environmental Protection’s June 10, 2014 press release, it’s the Christie administration’s massive rewriting of literally every coastal regulation enacted since the early 1970s.

The DEP says these are only “technical revisions . . . providing more clarity” to rules that will continue to “maintain New Jersey’s high standards for protection of natural resources,” according to DEP Commissioner Bob Martin.

Really? To borrow a phrase from former President Ronald Reagan: “Trust but verify.”

Ironically, the most obvious problem with this comprehensive rulemaking revision is what’s missing. Despite promising to include “lessons learned” from Hurricane Sandy — which virtually wiped out shore communities up and down the coast — the new rules do not even mention global climate change and the consequent dangers to life, limb, and property.

After plowing through this huge tome in search of what the DEP will do to prevent more costly destruction when the next hurricane hits, this lawyer found nothing. That’s right, there is no discussion whatever of global warming or the unique vulnerability of the Jersey coast, which, according to scientific studies, is sinking even as the sea level is rising, and superstorms are coming more often.

Also troubling is the DEP’s haste to promulgate the regulations. Despite the sheer bulk and mind-numbing complexity of the rules, the department’s June 10 announcement scheduled the first public hearing for June 25 in Long Branch, followed by one in Trenton on the next day. A third hearing is penciled in for July 9 in the small coastal enclave of Tuckerton.

True, the public may still submit written comments to the DEP. But the deadline is August 1 for them to be considered and included in the record of decision. Never mind that all of this is happening during prime summer-vacation time.

It seems fair to ask: “What’s the rush?” Why is Gov. Chris Christie and his DEP in such a hurry to amend literally every regulation devised since the 1972 enactment of the Coastal Wetlands Act to control development and protect the environment along the 125 mile New Jersey coast?

It seems fair to ask if this frenzied effort to “streamline” more than four decades of coastal laws and procedures is another in a long line of Christie initiatives intended to make him more attractive to the Republican Party right wing in the run up to the 2016 presidential primaries.

Where haste really is needed is to put into place specific rules implementing “post-hurricane Sandy” restrictions on where and how rebuilding can occur and new development proceed. But despite assurances of reflecting “lessons learned,” this comprehensive regulatory rewrite — which must have consumed several weeks of staff time to write — is silent on any such lessons or concerns.

In testimony by Environment New Jersey (ENJ), the statewide advocacy group argues that instead of “adapting to climate change and increased storm surges,” the new DEP rules “allow for more high-density development on already hazardous land. And according to the Georgetown Climate Center, New Jersey’s coast will experience a 10-inch sea-level rise by 2030 and 1.5-foot rise by 2050, which will be compounded by the gradual sinking of the coastline.

To climate-change deniers, apparently including Christie’s DEP, these numbers may seem trivial. But they are not. Indeed, they spell inevitable tragedy for thousands of coastal dwellers unprepared for what is sure to come. As the ENJ testimony further explains, “the damages felt by storms will nearly double . . . due to increased coastal flooding and erosion, and property damage.”

For example, “floods that used to occur only once every 100 years are now occurring every four years due to these climate change factors” all of which the DEP seems to be ignoring.

Among the more controversial “reforms” are those for dredging coastal waterways and where to put the megatons of frequently toxic and foul-smelling “dredge spoils.” To expedite more dredging in more places, the DEP would ease long-standing rules governing the siting of dredge spoil depositories – – called Confined Disposal Facilities (CDFs), a euphemism for a landfill limited to dredging waste.

The DEP wants to expedite the “reuse” of old and abandoned CDFs by removing a rule that the site had to have been in use for dredging waste within the past 10 years or else it would be treated as a new site, subject to more stringent and updated regulation.

If this rule ever becomes law, families and businesses near long-abandoned “dredge fills” could find that the wild green space across the street had — perhaps many years earlier — received dredging spoils before it reverted to nature. And now the DEP plans to put it back into operation on short notice.

“Removal of the 10-year requirement,” the DEP candidly explains “will facilitate the use of former dredge material management areas that may not have been used the last 10 years,” but which DEP believes to be “critical” for nearby dredging of bays and waterways.

(Full disclosure: The writer is also the attorney for certain residents in Eagleswood Township, Ocean County, who oppose a massive CDF across the street from them and next to the E. B. Forsythe National Wildlife Refuge. Almost two years ago, the court sent the case back to the DEP for reconsideration to take into account “post-hurricane Sandy” impacts, but to date the DEP has taken no action.)

So what is to be done to put this regulatory freight train on a siding until the full ramifications of 1,000 pages of amendments are fully examined?

Answer: The Legislature should invoke its special powers under the New Jersey Constitution to impose a hold on any proposed new regulations and conduct its own public hearings. Lawmakers can go one step further and veto the new rules as contrary to legislative intent. Best of all, this legislative veto is not subject to another of Christie’s many vetoes.