In response to Governor Christie's direction to state agencies to implement common sense principles, the New Jersey Department of Environmental Protection ("DEP") has adopted a rule to allow the agency to waive its own environmental regulations on a case-by-case basis. The Waiver Rule, which was published April 2, 2012, and becomes effective August 1, 2012, intends to remove unintended impediments to economic growth without diminishing the value of environmental protection laws.
To obtain a waiver, an applicant must establish at least one of the following criteria:
- A public emergency has been formally declared.
- Conflicting rules (between federal and state agencies or between state agencies) are adversely impacting a project or preventing an activity from proceeding.
- A net environmental benefit would be achieved.
- The rule imposes an undue hardship.
Additional factors impact whether a waiver may be granted. For example, a waiver cannot violate any state or federal statutes or federal regulations. Additionally, requests must be supported by science, facts, data and common sense.
The waiver rule is designed to implement a more flexible solution that fosters predictability and decreases the compliance burden on businesses. However, its impact remains to be seen. The way in which the DEP implements the rule will define its impact. The rule currently provides no automatic right to a waiver; a waiver is subject to the agency's discretion. Additionally, several environmental and labor groups have already filed suit against the DEP challenging this new rule as a violation of the New Jersey Constitution's separation-of-powers doctrine. Thus, the jury is still out on whether this rule will have the intended impact of encouraging economic growth in New Jersey.
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