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Opinion: The Judiciary Rediscovered

Winners and losers as the courts weigh in on environmental issues.

Back in the halcyon days of the 1980s, when environmental laws and regulations were being adopted at a fairly frenetic pace, the opponents of virtually every major law, rule and DEP regulatory decision were quick to challenge things, either in administrative hearings before the Office of Administrative Law, or in the Appellate Division of Superior Court.

In fact, my fellow regulators from this period generally expected that every major decision or enactment would of course be simultaneously challenged in court by both the environmental community and the regulated community, and such dual challenges were generally seen as an indication that the agency had chosen the correct path by somehow managing to disappoint both sides of these disputes.

The DEP was hardly shy about taking EPA or other federal agencies to task before reviewing courts, which played an active role in resolving the environmental policy issues de jour.

At one point, environmental litigation was so prevalent that the New Jersey Supreme Court appointed a special committee (which I was honored to chair shortly after leaving state government in the early 1990s) to make recommendations on how the judiciary could best handle the caseload of ever more complex and technical environmental litigation. There was even talk of creating a special court to hear and resolve environmental disputes, much like bankruptcy or family courts, though in the end that approach was passed over in favor of more specialized training for judges in the area of environmental law.

After many years of all of the major actors suing one another on a regular basis, however, most of the justiciable environmental issues were gradually resolved. As the pace of new laws and regulations -- and the concommitant DEP regulatory activism produced by those adoptions -- slackened noticeably, the pace and import of litigation slowly subsided, and the overall role of the courts in environmental policy generally lessened to one of occasional referee.

But the litigious among us no longer need to feel nostalgic, for recent years have seen a noticeable resurgence in both the role of the courts and the willingness of players in the environmental policy arena to utilize the judiciary as a principal weapon in their arsenals.

Examples of this trend abound. For their part, opponents of new laws and regulations on the state level have launched a series of challenges to the Highlands Act, to DEP rules which limit the expansion of sewer lines into environmentally sensitive area, and to another DEP rule which makes owners of former industrial sites certify that their property is free of contamination. By my count, the Highlands Council is ahead of its challengers by 5-0, and DEP is holding its own by a 2-1 margin, as the courts have generally deferred to these agencies. Challengers have found it noticeably tough to show that regulatory actions were arbitrary, capricious or unreasonable, which is the actual standard used by reviewing courts in for overturning agency actions.

On the federal level, EPA also had its hands full defending its rules in the Federal District Court of Appeals. But Lisa Jackson continued to give just as good, or better, as she got, and her rules on revised nitrous oxide standards and sulfur dioxide were both upheld, along with the truly landmark new greenhouse gas regulations. So Jackson continues to gather gold medals in the environmental Olympics, and the courts have been a much friendlier forum for her than the House of Representatives.

And the U.S. Army Corps of Engineers (the guys who have real weapons) had their decision to dredge the main channel of the Delaware River upheld against a challenge from New Jersey, but the Nuclear Regulatory Commission was not as fortunate, getting reversed by the federal courts in response to another suit filed by the State of New Jersey, for the NRC’s failure to undertake an environmental impact statement on the possible effects of letting nuclear plants store spent fuel rods for up to 60 years on-site in the most densely populated state in the nation. So who knew that could possibly have an environmental impact worth studying? And, for good measure, and perhaps just to keep him from getting too full of himself, the courts also took the opportunity to rebuff Gov. Chris Christie’s efforts to “do it his way” and seek to force the closure of a coal-fired power plant in Pennsylvania, rather than to join other states in litigation defending EPA regional air pollution regulations.

Christie also found himself on the short end of two housing decisions, where the Appellate Division held that the governor exceeded his powers by eliminating the Council on Affordable Housing - an independent agency created by the Legislature “in but not of” the executive branch, and that he could not impound some $161 million in municipal affordable housing trust funds without due process being provided to towns so that they could contest this action. So unlike Lisa Jackson, the governor probably prefers the House of Representatives, as his earned run average has skyrocketed in almost every outing before the judiciary, and medals of any color were decidedly hard to come by in his judicial adventures. Small wonder that he wants judges to contribute more to their pensions, so that they can all retire comfortably as soon as possible, and let him appoint their successors.

And in what may be the most telling and profound two decisions of them all, federal and state courts made environmental activists the real gold medal winners in this new round of litigation. The U.S. Circuit Court of Appeals reinstated a citizen suit brought by the Raritan Baykeeper seeking to force the cleanup of the Raritan River near the former National Lead plant in Sayreville, while the New Jersey Supreme Court ruled that the Rutgers Environmental law clinic was not subject to the state Open Public Record and could therefore refuse to turn its litigation files over to its potential litigation adversaries.

So what’s all this flap about litigation? Clearly, the courts are back as major players in the environmental arena. And perhaps even more clearly, the environmental community and other supporters of environmental laws and regulations have realized that litigation may well be a more effective weapon than lobbying a recalcitrant Legislature, a defanged DEP and a hostile governor. The courts, it seems, are a rather more level playing field than either the floor of the Legislature or the governor’s office, and “pay to play” counts for little in front of a reviewing panel of federal or state judges, at least so long as the judiciary remains independent and diverse.

So if you like to read the tea leaves on environmental policy and want to know where things are really headed these days, I suggest that you monitor the progress of the lawsuit recently filed by several dozen environmental organizations challenging the so-called “Waiver Rule” under which DEP has granted itself the power to waive environmental regulations it deems as overly burdensome. And if recent court decisions are any indication at all, I would not bet the ranch on the chances that this controversial rule will survive judicial scrutiny. And you might just want to read up on an old law called the “Environmental Rights Act” -- but that is a commentary for another day.

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