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Court Says NJ Can Waive Its Environmental Rules

A New Jersey appeals court ruled Thursday that the state Department of Environmental Protection was within its rights last year to adopt a new rule that lets officials waive many of their own rules upon request.

judges gavel
(Joe Raedle/Getty Images))

The ruling is a victory for Gov. Chris Christie’s administration, which was challenged by several environmental groups on the waiver rule.

Environmentalists plan to appeal to the state Supreme Court.

Judge Anthony Parrillo, writing for the unanimous three-judge appellate panel, said state agencies have the power to adopt regulations.
“Simply stated, the power to promulgate a regulation implies the incidental authority to suspend or waive its application,” he wrote, so long as doing so is not breaking laws or in defiance of the agency’s mission.

Christie’s administration characterizes the rule as a “common-sense” way to reduce bureaucracy when environmental regulations are onerous or conflict with one another.

But among environmentalists, it’s seen as a way that the administration could ignore environmental protections to help businesses, breaking rules that were adopted for good reason.

“It’s the worst environmental rule ever,” said Jeff Tittel, the director of the New Jersey chapter of the Sierra Club, one of 28 organizations that sued over it.

The New Jersey DEP says the regulation has not led to the trampling of environmental considerations.

“The sky did not fall,” DEP spokesman Larry Hajna said Thursday. “The program has been working out very well. The numbers show that this is a very rigorous process and the public recognizes this.”
He said that there have been 26 applications for waivers. The only two on which final decisions have been made have been rejected. One was seeking to avoid pollution rules for a company in Paterson, the other was seeking to build homes near a lagoon in Cape May.

The court found that while the state can waive its own rules, there was one technical problem: Materials about the rule on its website go beyond what the rule says and were invalidated.

Tittel said that may lead to a suspension of the waiver program while the DEP figures out how to address that concern.

Hajna characterized the web issue as a small one and said one possibility could be to amend the rules to include those materials.

Besides appealing to the state Supreme Court, environmental advocates are also asking lawmakers to invalidate the regulation as going against legislative intent. The Assembly voted to do so last year, but the Senate has not voted on it.

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