OK, maybe we were wrong.
The state Department of Environmental Protection's controversial waiver rule went into effect Aug. 1. The rule was opposed by virtually all environmental groups in the state and was the subject of numerous critical editorials in the state's news outlets. It allows permit applicants to request a waiver of any of 124 major environmental regulations, under four conditions: if a regulation conflicts with other rules, if there is a public emergency, if there would be a net environmental benefit to granting a waiver, or if the rules are creating an undue hardship.
We, and others, predicted chaos. Every applicant would apply for a waiver, we said. Why wouldn't they? Rather than streamline the permitting process, the waiver rule would clog the process, we said.
But so far, only 15 waiver requests have been accepted for review by the DEP. None has been approved at this point.
"We stated very strongly that this was not a get-out-of-jail-free card, that this would be something that we would be very carefully scrutinizing. Based on the numbers that we're seeing, contrary to the environmentalist predictions that the end of the world was coming, the numbers are showing that this program is working as intended," DEP spokesman Larry Hajna recently told Press staff writer Sarah Watson.
So OK. There's no chaos. Yet.
And to the DEP's credit, it has put up a detailed website - state.nj.us/dep/waiverrule/ - that allows anyone to search the waiver requests and see exactly who is requesting what and why.
The DEP has also published a list of 13 conditions under which a waiver will not be granted. The first item says no waiver will be granted of any regulation unless the statute on which the requirement is based allows for waivers. This point appears to undermine the legal challenges to the waiver rule. Opponents have claimed the DEP has no authority to waive a rule unless the Legislature has specifically allowed for a possible waiver.
But the fact that, so far, few applicants have applied for waivers may be the result of the lawsuit filed by opponents of the new rule. The case heads to court next month and may be discouraging applicants from seeking waivers until the legal issues are resolved. As Sierra Club head Jeff Tittel has noted, if the DEP loses the case, anyone who was granted a waiver would find themselves back in violation of the regulation.
Furthermore, there isn't a whole lot of major development under way in New Jersey right now. And that's not because New Jersey's environmental regulations are too strict. It's because the demand just isn't there, and because banks aren't willing to make the necessary loans.
And the overall issue still concerns us: By giving itself the discretion to decide which regulations it will enforce, the DEP opens the regulatory process to a potential onslaught of lobbying and litigation. It creates a situation under which politics could play a greater role than science when environmental decisions are made.
But so far, we do have to note that DEP officials have indeed set up a transparent and careful process for waiver requests and reviews. We'll give them that.