On May 24th, the New Jersey Assembly passed ACR37. The resolution passed without discussion and the vote was along party lines. This resolution declares that the DEP’s Waiver rule is against legislative intent. ACR37 also notes that many of the 100 plus statutes cited by the DEP as authority for the rule are either incorrect or do not provide the authority the DEP alleges. I also note with interest, that the Legislature thought about granting the power to DEP waive strict compliance with standards but decided to remove this provision from the bill before it was enacted. This section gives some weight to the argument that I have made that the Waiver Rule was not enacted under an express grant of power. (See my post: Waiver Rule: One Rule to Rule Them All!)
The next step will occur on Thursday May 31st when the New Jersey Senate will consider and vote on SCR59, the senate version of the resolution. I expect that it will again pass along party lines.
Once the resolution passes both houses, the legislature will transmit the concurrent resolutions to the Governor and the DEP. The transmittal is only a notice mechanism and the concurrent resolutions do not require the Governor’s signature to become effective. Once transmitted, the DEP will have 30 days to amend the rule or to withdraw the rue. The legislature has this power because the New Jersey Constitution allows the legislature to review any rule or regulation adopted or proposed by an administrative agency. This makes sense because while administrative agencies are part of the executive branch they are exercising power delegated to it by the legislative branch. If the DEP does not amend the rule or withdraw it within the 30 days, then the Legislature can again pass the concurrent resolutions again and upon the second passage, the Legislature will invalidate the rule.
I expect the Senate to pass the SCR, but I do not expect that the DEP will amend or withdraw the rule. That would mean that both houses will have to vote on a concurrent resolution for the second time. It is very unlikely that the vote will occur before they recess at the end of June; which means the second vote will likely occur in September after the Waiver rule is implemented. I wonder whether the DEP will delay the implantation of the rule pending this second vote. If the DEP does not voluntarily delay implantation, I know that the plaintiffs in the litigation over the Waiver Rule will seek a stay of its implementation to give the Appellate Division time to consider the case. For more information on the lawsuit and why the Waiver Rule is invalid, please take a look at my post: Waiver Rule: One Rule to Rule Them All!