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Opinion: Looking for Common Sense in a Proposed DEP Regulation

A new proposal would let the DEP make the rules and then decide who must comply with them.

An extraordinary new regulation was recently proposed by the Department of Environmental Protection (DEP). It would supersede existing laws and regulations and allow the department to approve waivers of strict compliance with its rules "to address situations where rules conflict, or a rule is unduly burdensome in specific application, or a net environmental benefit would be realized, or a public emergency exists."

According to the summary, this action was taken to implement the "Common Sense Principles”" announced in Governor Chris Christie’s 2010 Executive Order No. 2. Its goal is to avoid those limited circumstances where "strict compliance with a rule or provision of a rule can lead to an unreasonable, unfair, or unintended result."

There is very little in this proposed waiver, however, that exhibits common sense—at least to me.

As someone who spent a fair number of years writing legislation, and then writing and enforcing environmental rules, I am keenly aware that some laws specifically authorize regulators to grant waivers from strict compliance (usually under specific statutory criteria). Both the Pinelands Protection Act and the Highlands Water Policy and Protection Act are examples of laws that authorize waivers of strict compliance.

Most other environmental laws, though, provide no such authorization, despite the laundry list of statutes cited in the administration's proposed waiver rule as authority for this unprecedented action.

I believe there are serious legal questions as to whether the DEP may give itself the authority to supersede both laws and regulations, and then decide on its own who needs to comply with its rules, and who doesn’t. To do so makes a mockery of the regulatory process, and deprives the public of any meaningful opportunity to comment on individual waiver decisions.

If the agency believes that some of the provisions of its rules are too burdensome with too little public benefit, it would be more intellectually honest to identify those provisions and propose specific revisions. This would allow all stakeholders -- the regulated community as well as the public -- an opportunity to weigh in on the advantages or disadvantages of these specific rule changes.

There is another very pragmatic reason to follow legal procedures here. Whether the DEP realizes it or not, once this rule is adopted, all bets will be off in terms of willing compliance by the regulated community.

As anyone who has ever been a teacher, parent or supervisor can tell you, the likely result of enforcing the rules some of the time, with some people, under some circumstances, even with the best of intentions, will only be chaos and anarchy, as even the most responsible people quickly learn that it just does not pay to play by the rules.

I have to wonder: Why would future permit DEP applicants not ask for waivers? They have nothing to lose, and potentially everything to gain, by pleading their case be exempted, especially since they can be sure their competitors will be doing exactly that.

Has anyone considered what this will do to the DEP’s workload, especially with its shrinking budget and smaller staff? Will this really streamline the permitting process and nurture the budding economic recovery? And how many lawsuits will result from disgruntled applicants complaining that others received waivers, but they did not? Or from communities, organizations or individuals who counted on the DEP actually enforcing its rules to protect their environment, only to find that protection waived?

And what happens to the responsible recent or future applicants who actually did or are still willing to strictly comply with the rules as written? Do we really want to go down any of these roads?

Frankly, if the Christie Administration has identified regulatory provisions that it believes are overly burdensome and not in the public interest, it has other, more appropriate, legal options to deal with this situation. The DEP, like virtually any regulatory agency, has fairly wide discretion in how it interprets its own rules in the permitting process, and even broader discretion when it comes to enforcement.

Christie, as a former prosecutor, knows full well what "prosecutorial discretion" is all about. And while reasonable people can (and probably will) disagree on how that discretion may be exercised, that option has almost always provided wide latitude to resolve conflicting rules, avoid truly inappropriate results, and adjust policies in the short term while rules are officially modified, with notice and opportunity to be heard, as required by the Administrative Procedure Act.

What the agency cannot, and should not, do is to ignore both statutory and case law and start issuing waivers that it has no authority to grant. That is not how our society "of laws and not of men" works.

All of us -- from permit applicants, DEP staff, members of the public, interest groups, the DEP commissioner, members of the legislature, and even the governor -- are supposed to play by the rules, and not just ignore or waive them when it is inconvenient or we believe that compliance is not appropriate.

There is simply no common sense in this proposal that is apparent to me, but it does suggest an alarming disrespect for the law, as well as a curious naivete about the chaos that will likely result from playing fast and loose with the rules.

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