A state appeals court has upheld a sweeping rule that allows the Department of Environmental Protection to waive many of its rules if requested.
The court found that the DEP was within its rights to adopt the waiver rule last year, which is one of the Christie administration’s most aggressive efforts to reduce environmental regulatory red tape. However, the state was told it must put certain documents associated with the rule through a formal rule-making process, including soliciting public comment, according to the 54-page ruling released Thursday.
DEP spokesman Larry Hajna said the agency will continue to review applications while it determines what to do about the court’s ruling.
The waiver rule, which went into effect in August, drew the ire of several environmental and labor groups. The groups argued in their suit against the state that the rule was vague and there was no specific public guideline for how waivers would be granted. The groups also warned that the rule expanded the administration’s power in an unprecedented way.
Petitioners can request a waiver under five broad categories. These include regulations that would be “unduly burdensome” or would have an “excessive cost.”
The DEP will reject waivers that fall under 12 guidelines, including whether the waiver seeks to circumvent federal law or would be harmful to human health, air quality or endangered species.
The court disagreed with the challengers’ arguments. Judge Anthony Parrillo, writing for the unanimous panel, cited several legal precedents that allow agencies to waive their own regulations as long as the agency’s core mission was met.
“Simply stated, the power to promulgate a regulation implies the incidental authority to suspend or waive its application,” Parrillo wrote.
New Jersey Sierra Club Director Jeff Tittel, one of the suit’s plaintiffs, said in a statement that the groups will continue to fight the rule any way they can, including further appealing the suit, through legislative action or fighting each individual waiver.
“We are deeply troubled that this ruling will allow the DEP to take the side of special interest over the public, and this will lead to more pollution and flooding,” Tittel said.
Since the rule went into effect in August, 26 applications have been filed and none has been approved, according to the state’s website.
Hajna said two applications were denied, including a request from a Cape May County landowner who wanted permission to override shellfish habitat regulations to expand a marina. The other was from a Paterson, Passaic County landowner who wanted permission to cover contaminated soil rather than remove the pollution as required by state law.
“We did not set this up for people to bend the rules. That’s not what this is about,” Hajna said. “We were very careful about making sure the waiver rule would be used properly and help people out, but in very strictly defined circumstances.”
In a statement released Thursday, the coalition of groups involved in the suit called on the state Legislature to override the rule. Among the groups are the American Littoral Society, the N.J. Environmental Federation, Clean Ocean Action, several labor organizations and the Pinelands Preservation Alliance.
“We are greatly disappointed by the ruling issued by the Appellate Court today, and believe the rule should be overturned,” the statement reads. “Despite the Court’s ruling and the slow trickle of waiver applications submitted thus far, the rule, once finalized, will open the floodgates to wash away environmental protections and represents an overreach of executive power.
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