N.J. court upholds waiver of environmental rules

A New Jersey appellate court upheld a rule Thursday that environmental groups have criticized as the worst to come out of the state Department of Environmental Protection.

The rule, passed a year ago, allows the department to waive environmental regulations in cases where they are conflicting or unduly burdensome, if there is a public emergency, or if not complying would achieve a net environmental benefit.

Critics said the rule would open the door for abuse and favoritism. The 28 groups that appealed it have vowed to continue their opposition.

"This is just the end of round one," said Jeff Tittel, director of the New Jersey Sierra Club. "We will continue to fight on this rule whether it is in the Supreme Court, through the Legislature, or each individual waiver when granted."

DEP spokesman Larry Hajna praised the decision of a three-judge panel in the Superior Court Appellate Division. "Certain environmental advocates claimed the sky was falling when we adopted the rule. The sky did not fall, and the court agreed," Hajna said. "As we've said time and again, the rule was designed to be used in very limited circumstances and under specific criteria, and that is how things are turning out."

The DEP's waiver-rule Web page shows that 14 applications for waivers have been accepted for review and nine have been rejected as incomplete.

Two waiver requests have been denied - one by a Paterson machine company to cover contaminated soil rather than removing it, and another by the owner of property along Cape May Harbor to build houses in an area where the only allowable development is for a water-dependent use, such as a marina.

Richard Hluchan of Hyland Levin L.L.P., a Marlton firm that often represents developers, is representing the landowner in that case and said an appeal for a waiver had been filed. Local zoning allows only residential use of the property, he said.

"The DEP has been wrestling with the notion of flexibility in their regulations for a long time," Hluchan said. "Generally, their regulations are one size fits all. They really are not tailored to specific situations. The waiver rule gives them the ability to still protect the environment, but to do it in a commonsense way."

The environmental groups warned in a group statement that despite 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."

The DEP rule was the result of a directive by Gov. Christie to all agencies to allow for waivers.

In their opinion, the judges - two appointed by Democratic governors, one by a Republican - concluded that the waiver rules "provide adequate standards and safeguards to inform the public and guide the agency as to how decisions will be made."

The court did note that the guidance the DEP placed online should have been part of the rule. "While this does not limit our ability to implement the rule in any way, we will discuss making this remedy," Hajna said.

The New Jersey Builders Association, New Jersey Business and Industry Association, New Jersey Chamber of Commerce, American Petroleum Institute, and the state's commercial real estate development association all argued in court in favor of the rule.

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