Will NJDEP’s Waiver Rule Survive Legislative Efforts to Derail It?…Stay Tuned

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There are almost 50 days left until the NJ Department of Environmental Protection’s Waiver Rule takes effect on August 1, 2012.  That is unless the NJ Senate decides to follow in the path blazed by the Assembly last month to derail the rule by approving a resolution directing NJDEP to amend or withdraw the Waiver Rule as inconsistent with the legislative intent of the statutes cited by NJDEP as support for the rule.  An identical Senate resolution was approved in committee but then pulled from the Senate agenda at the end of May.  The regular legislative session is nearing its end, but a resolution technically could be heard either beforehand or during a special session over the summer.

The Waiver Rule was adopted on March 8, 2012 pursuant to Governor Christie’s Executive Order No. 2 issued on his very first day in office and allows NJDEP to waive any of its rules where (1)  the rule conflicts with another NJDEP rule or a rule of another state or federal agency in a way that makes compliance with both rules impossible or impracticable; (2) strict compliance with the rule would result in actual and exceptional hardship or excessive cost where there is a cheaper alternative that is as or more protective of the public or the environment;  (3) there will, despite the waiver, be a net protection of the natural resource or other environmental good that is protected by the rule being waived; or (4) an authorized federal or state official declares a public emergency justifying the waiver.

Environmental special interest groups oppose the rule as a broad attack on environmental regulations by providing NJDEP the ability to waive any of its rules for reasons that are easy to assert, including economic hardship.  Business and industry trade groups welcome the rule as much needed relief from years of technical Catch-22’s that have led to protracted and expensive development delays even where every effort to comply with NJDEP’s often inconsistent maze of rules has been undertaken. 

Aside from the legislative efforts to derail the waiver rule, 27 environmental and labor groups filed a lawsuit in the NJ Appellate Division in March, just after rule adoption, seeking expedited review from the court, arguing that the rule should be invalidated on constitutional grounds, including alleged violations of separation of powers and due process.

By most accounts, it is unlikely that there will be either a legislative or court resolution  before August 1 when DEP will begin to accept waiver applications.  While DEP is not expected to grant waivers lightly, there are certain types of cases that DEP itself is anxious to use the waiver rule to resolve, for example, where its land use and site remediation groups are deadlocked due to inconsistent rules that make it impossible for the remediating party to move forward.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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