Christie Moves Ahead With Hot-Button Rule Allowing DEP Waivers

Critics say rule aimed at strengthening NJ business will weaken environmental advances

The Christie administration is moving ahead with a controversial new rule that will allow the state Department of Environmental Protection to waive certain regulations that prove unduly burdensome, a measure drawing widespread opposition from Democratic lawmakers and environmental groups.

The adoption of the rule comes a year after the DEP first proposed the measure, spurred by an executive order from Gov. Chris Christie soon after taking office. It is touted by advocates as a way of making the state more business friendly without compromising environmental protections.

Its critics dispute that view, arguing the rule will undermine tough environmental regulations put in place over the past three decades, as well as likely leading to an avalanche of lawsuits.

“They’ve opened themselves up to a tremendous amount of lawsuits, and losing lawsuits at that,’’ predicted Sen. Bob Smith (D-Middlesex), the chairman of the Senate Environment and Energy Committee.

The agency would be allowed to consider a possible waiver of a regulation only if it met one of four special conditions: if it conflicted with other state or federal rules; if it were unduly burdensome; if there would be a net environmental benefit; or, if there were a public emergency.

“A lack of flexibility can sometimes produce unreasonable, unfair or unintended results that actually undermine the goal that the requirement was intended to attain,’’ said DEP Commissioner Bob Martin, who signed the rule. “This provides us with a modest measure of flexibility to manage special circumstances but through a process that will be used under limited circumstances and with total transparency.

The rule, Martin added, is part of the governor’s effort to implement a “common sense’’ approach to government reform. Some of the strongest advocates of the rule were local government officials who complained of inflexibility in the agency’s rules, Martin said.

But critics argued the rule is written so broadly it will allow politically connected developers to push through projects that would be a detriment to the environment.

“This rule is an attack on environmental protection and will open up New Jersey’s regulatory system to pay-to-play. This is one of the worst rules ever adopted in the state,’’ said Jeff Tittel, director of the New Jersey Sierra Club.

The DEP said the waiver process will be transparent, with all applications and actions posted prominently on the agency’s website. It will not begin accepting applications for waivers until August 1 of this year.

In the first six months of its application, Martin said he would review all the waiver requests that come through, although he conceded he did not know what the volume would be.

No matter how open the process, however, the perception will be that politically connected people will prosper the most from the new rule, according to critics.

“The DEP, like all of government, has credibility issues,’’ Smith said. “This waiver rule feeds into that.’’

Others agreed with Smith that the DEP does not have the authority to grant waivers unilaterally.

“I’m not sure there is any statute that gives them the authority to do so,’’ said Michel Pisauro, an attorney for the New Jersey Environmental Lobby. “The DEP doesn’t have the authority to do this.’’

Martin, however, in a call with reporters late in the afternoon, said the rule had been vetted with the New Jersey Attorney General’s office. “We’re very confident of the legal standing of this,’’ he said.

Ironically, his remarks came on a day when a state appellate court decided the Christie administration overstepped its authority when it abolished the Council on Affordable Housing, saying only the legislature can eliminate the agency, which was set up to promote more affordable housing in New Jersey.

Smith took the same line on efforts to adopt the waiver rule to eliminate environmental safeguards dealing with certain regulations. “If they want to eliminate a rule, it has to be done legislatively,’’ he said.

Besides facing a possible legal challenge, environmentalists said they would press the Democratic legislature to block its implementation by passing a resolution, saying it does not reflect legislative intent. A similar resolution was introduced in the previous legislative session, but never made it through both houses.