Appellate Upholds DEP Waiver Rule, Giving This Round to the Administration

Opponents vow to push on to state Supreme Court, fighting decision that lets department ease environmental rules

The Christie administration yesterday won a victory when a state appeals court upheld a controversial regulation to allow environmental rules to be waived under certain, limited circumstances.

The ruling by the three-judge panel blocks efforts by more than two dozen environmental organizations to overturn the regulation, a proposal some termed the worst environmental measure in more than two decades.

In rejecting the appeal, the court in a 54-page decision argued that the legislative authority granted to the state Department of Environmental Protection to promulgate rules “implies the authority to suspend or waive its application in certain limited, well-defined circumstances.’’

The issue became emblematic of the fight between the Christie administration’s push to loosen rules that hamper economic development and environmentalists’ efforts to block regulations that may weaken New Jersey’s strong pollution and land-use laws.

The dispute is not likely to end anytime soon. The environmental groups vowed to appeal the decision to the New Jersey Supreme Court, saying the appellate division often sides with state agencies on matters of regulation, a point the court did not contend.

“Agency regulations are accorded a presumption of validity and reasonableness,’’ the court said in its decision. “Instead, when reviewing an administrative agency’s promulgation of a rule, it is not our function to assess the wisdom of the agency decision, but only its liability.’’

In this case, the court sided with the department.

“In sum, we conclude that the waiver rules contain adequate regulatory standards that guide DEP in deciding waiver rule applications,’’ the court said.

The rule, spurred by an executive order issued during the first days of the Christie administration, allows the DEP to waive nearly a hundred environmental regulations under certain circumstances — if it there is conflict among regulations; if they impose an undue economic burden; if there is a public emergency; and if there is a net environmental benefit if the waive is issued.

The regulation created an unusual situation for those who closely follow DEP regulations. It is rare for environmental groups to challenge a rule adopted by the agency, and even more unusual for business groups to support the department’s actions, but that was the case in this instance, both in the regulatory process and in the courts.

“It is an important victory for the DEP and the administration,’’ said DEP spokesman Larry Hajna. “We are very pleased with the decision.’’

Business groups also endorsed the decision. “New Jersey has a long history of over-regulating those who want to grow jobs and improve the economy, ultimately resulting in lost economic opportunities,’’ said Michel Egenton, a senior vice president of the New Jersey State Chamber of Commerce.

“This is only round one,’’ predicted Jeff Tittel, director of the New Jersey Sierra Club, one of the 28 environmental organizations opposing the rule. “This will wave not only goodbye to environmental protections, but will mean more pollution and more flooding.’’

So far, that apparently does not seem to be the case. The DEP has received 26 applications for waivers since last September. Two have been rejected, many other applicants have been told to submit more information, and none of the filings have been approved by the agency, according to Hajna.

Environmental groups, who opposed the rule, argued otherwise.

“We are greatly disappointed by the ruling issued by the appellate court today and believe the rule should be overturned, they said in a press release. “Despite the court’s ruling and the slow trickle of waiver applications submitted thus far, the rule, once finalized, will open the floodgates to wash away environmental protections and represents an overreach of executive power,’’ according to their statement.