Democratic Lawmakers Block Controversial DEP Waiver Rule

In a straight party line vote, Democrats lawmakers Thursday narrowly approved a resolution declaring that a controversial proposal that would allow the Department of Environmental Protection to waive its rules in limited cases in which the regulations prove "unduly burdensome" as inconsistent with legislative intent.

The resolution (ACR-206) is in reaction to a rule awaiting adoption by the DEP that is viewed by business lobbyists and the Christie administration as making New Jersey more business friendly. It has been opposed, however, by environmental groups who argue that it undermines regulations aimed at protecting drinking water and air quality.

"While the regulation does not guarantee mischief, it certainly provides an opportunity for mischief," said David Pringle, campaign director of the New Jersey Environmental Federation, echoing an argument made by other opponents of the waiver rule. They fear that politically connected developers and others seeking permits before the agency could push their projects to the detriment of the environment.

The vote to declare the yet-to-be-adopted rule as inconsistent with legislative intent was approved by the three Democrats on the Assembly Regulatory Oversight and Gaming Committee, with the pair of Republicans voting no. With the current legislative session scheduled to end early next January, the resolution's prospects of winning final legislative approval are uncertain.

Assemblyman John Burchichelli (D-Gloucester), the chairman of the committee, was less concerned with the proposed rule's environmental issues than with a question of who should have the authority to issue a so-called umbrella waiver of regulations: the DEP or the legislature? "The question is whether it's within their purview to do it," he said.

But Kate Millsaps, speaking for the New Jersey Sierra Club, argued that neither the legislature nor the DEP should have the authority to issue a blanket waiver of rules aimed at protecting the environment. "It's a lose/lose situation for everyone," she told lawmakers.

But business lobbyists argued that the legislature should allow the proposed rule to go forward, saying it is designed to be used only in cases in which the regulations prove unduly burdensome or conflict with other rules.

Diane Walsh, a vice president of the Commerce and Industry Association, argued that the proposed waiver rule does not allow the DEP to stray from its core mission of protecting the environment.

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