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Court upholds DEP's waiver rule, cheering businesses

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An appellate court today upheld the New Jersey Department of Environmental Protection’s year-old “waiver rule,” a decision that gives the agency greater flexibility to waive environmental regulations in specific circumstances.

The rule had been challenged by a coalition of environmental groups and unions, who said it exceeds the department’s authority and lacks sufficient standards to guide the agency’s actions.

In a 54-page ruling, a three-judge Superior Court panel found the DEP was within its rights to promulgate waiver rules. However, the court did invalidate certain guidance documents on the agency’s website, saying parts of the documents go beyond the terms of the regulations.

Larry Hajna, a DEP spokesman, said his agency is pleased with the ruling.

“It upholds DEP’s authority to adopt the waiver rule as well as the criteria we’ve been using to implement it,” he said.

He said remedying the guidance documents wont’ be a major issue.

Shortly after taking office, Gov. Chris Christie issued an executive order calling on all state departments to adopt waiver rules to ensure regulations are carried out efficiently and consistently.

DEP approved its waiver rule last April. Under the rule, an applicant can seek a waiver if they face conflicting regulations, if compliance would cause an undue economic burden, if they can prove a net environmental benefit from the waiver or if they can prove a public emergency. 

So far, Hajna said the agency has only ruled on two waiver applicants. Both were denied.

Business groups cheered the court’s decision.

“The rule is good,” said Sara Bluhm, vice president for energy, environment and federal affairs at the New Jersey Business and Industry Association. “It allows common sense to be applied to regulations going forward.”

Environmentalists, however, see the ruling as a step backward.

In a prepared statement, New Jersey Sierra Club Director Jeff Tittel said the ruling could have dangerous consequences.

“With this ruling it could be open season on environmental protections in New Jersey giving the DEP broad powers to waive New Jersey’s environment regulations,” he said.

Tittel said that’s particularly distressing in the wake of Hurricane Sandy.

But Hajna noted that the rule has been in effect for nearly a year.

“It’s been working very well,” he said. “I should say, as we have said time and again, this rule was designed to be used under very limited circumstances and under specific criteria, and that’s how things are turning out.”

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