NJDEP Waiver Rule
New Jersey Department of Environmental Protection (DEP) has adopted a new rule to authorize widespread, discretionary waivers of environmental protections for the benefit of developers and polluters who don’t want to follow the law.
The rule allows DEP to give permit applicants waivers of virtually any environmental protection, ensuring that powerful, well-connected applicants would be given special treatment at the expense of our water, air, and forests and to the detriment of the public.
PPA believes this rule is both very bad policy and patently illegal.
The rule authorizes DEP to give waivers based for any of three reasons:
1. Conflicting rules - If DEP finds applying an environmental regulation conflicts with another department’s or state or federal agency's rules, then it may be waived.
2. Unduly burdensome - Strict application of a rule is “unduly burdensome,” which the rule vaguely defines as “exceptional hardship for a particular project or property” or “excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits.”
3. Net environmental benefit - If waiving a rule, the applicant can provide some kind of “offset” or “mitigation.”
The rule would apply to all environmental regulations, except for several listed kinds of rules. Among these exemptions from the rule are cases where the waiver rule would be inconsistent with federal requirements, or where the rule in question is “protective of human health.” However, it is impossible to know which rules DEP thinks fall into these exceptions and which do not. Presumably, DEP believes most rules do not fall into the exceptions. Experience teaches that giving permitting agencies this kind of highly discretionary, easily manipulated power results in arbitrary, politically-driven decisions that are bad for the environment and unfair to the public.
DEP is supposed to promulgate rules to meet its statutory obligations and to satisfy its core missions of protecting the air, waters, land, and natural and historic resources of the State for the public good. The waiver rule is in direct conflict with these Department requirements and is being legally challenged by Pinelands Preservation Alliance and several environmental, health and safety organizations throughout the state for the following reasons:
· The waiver rule does not have statutory authority.
· The waiver rule conflicts with existing statutes.
· The waiver rule is unconstitutionally vague and discretionary.
· The rule subordinates environmental laws to other laws.
· The waiver rule does not provide for public input.
· Mitigation is bad policy.
· The waiver rule is in direct conflict with the DEP’s core mission.
This rule will take effect in August 2012. You can view the rule
and the statutes that the DEP claims give them the authority to issue this rule.