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Assembly Votes Down DEP Waiver Rule

Tom Johnson | May 25, 2012

In vote along party lines, Democratic lawmakers declare DEP waiver is inconsistent with legislative intent.

In a vote along party lines, the Assembly yesterday approved without debate a measure that declares a controversial rule allowing the Department of Environmental Protection to waive many of its regulations as inconsistent with legislative intent.

The resolution (ACR-37) is identical to one expected to pass the state Senate next Thursday and reflects a legislative rebuke to the Christie administration’s efforts to make the state more business friendly.

The waiver rule, stemming from an executive order issued by Gov. Chris Christie, would allow the DEP to waive its regulations if one of four conditions are met: They constitute an undue burden; they conflict with rules of other agencies; there is a public emergency; and there is a net environmental benefit.

The waiver regulation is part of an effort by the Christie administration to bring what officials call a “common sense’’ approach to government reform. In an executive order issued on his first day in office, the governor ordered every state agency to set up a process to waive its regulations under certain conditions.

The first agency to do so was DEP, a step that has drawn nearly unanimous opposition from the normally fractured environmental community, who fear it will undermine three decades worth of hard-won laws to protect the state’s air, land, and waters.

Jeff Tittel, director of the New Jersey Sierra Club, called the waiver rule one of the “worst and most destructive” regulations ever written by the department. He said it would create loopholes and open environmental protections to political abuse by politically connected developers.

In adopting the rule, others argue the DEP exceeded its authority granted to it by the Legislature.

If approved by the Senate next week, the DEP commissioner has 30 days to withdraw or amend the rule, or the Legislature can invalidate the regulation by passing another resolution.

If both houses act, the passage of the resolution also may bolster a lawsuit brought by many environmental groups challenging the regulation in court. That case is expected to be heard by an appellate court sometime this summer, probably when lawmakers are on their summer recess.

Assemblyman Peter Barnes (D-Middlesex), the sponsor of the resolution, said he expects the administration will ignore the measure. “We’ll probably have to bring it back up in the fall,” said Barnes, who added he is confident he’ll have enough votes to win passage again in the Assembly. It passed yesterday 48-30 with every Democrat in the Assembly voting for it.

“The DEP does not have the statutory authority to promulgate one set of rules and regulations in order to waive other rules and regulations previously adopted as a result of legislation,” Barnes said in a press statement. “Not only does this go against the very purpose of creating legislation, but it also has the potential to harm the environment and the residents of this state.”

Assemblyman John McKeon (D-Essex) described the waiver rule as an attempt by the administration to circumvent environmental protections. “This is a classic example of this administration action without regard to the laws of this state, a pattern we’ve seen repeatedly over the last two years,” he said.

In contrast to critics, advocates of the new rule argue it will give state government more flexibility in moving good projects forward when otherwise they would falter, an argument repeatedly made by local officials.

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