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Environmentalists Oppose DEP Waiver Rule Backed by Businesses

Controversial regulation continues to range conservationists against traditional ally -- the DEP.

In an unusual twist, environmental groups yesterday urged a three-judge appeals court to overturn a regulation adopted by the New Jersey Department of Environmental Protection -- a measure the business community strongly backs, an equally odd occurrence.

The arguments represent the latest salvo in an ongoing battle over a controversial rule adopted by the DEP, which allows it to waive nearly a hundred environmental regulations under certain circumstances. The ruling is part of an effort by the Christie administration to curtail red tape.

The issue has united a once-fragmented environmental community, which argues that if the regulation is upheld, it could undermine nearly 40 years of tough directives put in place to protect New Jersey’s environment. Conservationists also contend that those rules are needed in the nation’s most densely populated state, one with a legacy of heavy-duty industrial pollution.

Business groups told the court that the rule is a common-sense approach to dealing with the myriad of environmental regulations adopted in the past, many of which frustrate economic development because of conflicting stipulations.

“The rule is really necessary because of conflicting rules adopted by the [DEP] over the years,’’ argued Dennis Toft, an attorney representing business groups, such as the American Petroleum Institute and the New Jersey State Chamber of Commerce.

The rule was spurred by one of first actions taken by the recently elected Gov. Chris Christie in 2011, when he issued an executive order instructing state agencies to adopt more business-friendly measures to spur economic growth.

The rule allows up to 86 environmental regulations to be waived if a project meets one of four conditions: if the regulations that apply conflict with other state and federal rules; if adhering to regulations is unduly burdensome; if the project delivers a net environmental benefit; or if there is a public emergency. The environmental groups are not contesting the use of waivers in public emergencies.

It is rare that environmental groups challenge a new rule adopted by the DEP; more often, they challenge an individual permit decision. It is even more unusual for the business community to back the agency's new rules, as one attorney representing the New Jersey Builders Association wryly noted.

But Edward Lloyd, attorney for the Columbia Environmental Law Clinic, told the court that the department adopted the rule without any authority from the Legislature.

Beyond arguing that the DEP lacked the authority to enact a blanket waiver for some 86 regulations, Lloyd argued that three of the four conditions for granting a waiver lacked specificity and invited abuse, citing the so-called “net environmental benefit’’ as one example.

“There is no way to judge what that standard will be,’’ he said. The same flaw exists, Lloyd said, with the "unduly burdensome clause," questioning what the standard would be for determining excessive costs.

The waiver rule took effect this past August. So far, 14 applications for waivers have been submitted to DEP. None has been approved, but two have been denied, according to Dean Jablonski, a deputy attorney general for the DEP. Both were denied by program directors.

Paul Schneider, an attorney for the builders, downplayed the impact of the rule adopted by DEP.

“Getting a waiver from DEP is not like going to Macy’s to get a shirt,’’ he told the judges. “These will be few and be far between.’’

It was difficult to determine how the three-judge panel will decide the issue, with the jurists posing difficult questions to all litigants.

Judge Anthony Parillo questioned how the waiver would conflict with the DEP's core mission, which doesn't "advance business interests."

Jablonski replied that the rule explicitly says that it must be consistent with the agency’s core mission of protecting environmental health and quality.

At times, however, the judges questioned whether the rule is substantially different from the agency's ability to suspend or impose a moratorium on regulations adopted by the state.

The rule is also a subject of controversy in the Legislature. At one point in the last session, a bill to block the implementation of the regulation cleared one house, but never made it to the floor of the other legislative body.

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