Posts Tagged ‘environment’

Senate To Vote on Permit Extension Act and Waiver Rule: One Bad and One Good.

Written by Mike Pisauro on May 31st, 2012 in land use, legislation, Regulation | 1 Comment »

This afternoon the New Jersey Senate is voting on two very important bills:  SCR59, The Waiver Rule and S703, Permit Extension Act of 2008. These two bills are very important as SCR59 will be an important step in stopping the DEP from undermining environmental protection and S743 will help undermine environmental protections including the Highland Planning Area and the Pinelands Preservation Area.  That both bills are up at the same time is somewhat troubling.  Is the senate looking to do one good thing so that they can vote in favor of a bad thing?  While the legislative process is always one of compromise, there should not be any compromise of basic environmental protection.

I have written about the DEP’s Waiver Rule and why it is bad.  Take a look at Assembly Tells DEP to Waive Goodbye to Waiver Rule, Waiver Rule: One Rule to Rule Them All! for more information on that topic.

Why is Permit Extension Act so bad?    Hasn’t there already been several Permit Extension Acts?  Yes, and I have written about the Permit Extension of 2008 when it was originally introduced.  If we already have it, then why is S743 bad?  It is bad because it is more expansive than the original act.  The original Permit Extension Act was strongly opposed by environmentalist and the final product was the result of strong negotiations between all parties.  The final bill removed from the Act environmentally sensitive areas.    Under NJSA 40:55D-136.3(a), environmentally sensitive areas was defined to include: Planning Areas 4B (Rural Environmentally Sensitive), Planning Area 5 (Environmentally Sensitive) or a critical environmental site, the Highland Regions except for areas designated for growth and the pinelands area except for areas designated for growth.  In these areas the Permit Extension Act of 2008 did not extend permits.

S743 redefines environmentally sensitive areas.  Under the pending bill the definition of Environmentally Sensitive Area does not include either the Highlands Planning Areas or the Pinelands Planning Area.   The bill goes further by adding a definition of “smart growth area” by including all of the Highlands Planning Area as a growth area.  The Highlands Planning Area covers about 450,000 acres of New jersey of which about two-thirds of it is considered environmentally sensitive.  The Planning Area includes Under the Highlands Water Protection and Planning Act, the purpose of the planning area is to:

  1. Protect, restore, and enhance the quality and quantity of surface and ground waters therein;
  2. Preserve to the maximum extent possible any environmentally sensitive lands and other lands needed for recreation and conservation purposes.
  3. Protection and maintain the essential character of the Highlands environment;
  4. Preserve farmland and historic sites and other historic resources
  5. Promote the continuation and expansion of agricultural, horticultural, recreational and cultural uses and opportunities;
  6. Preserve outdoor recreation opportunities, including hunting and fishing, on publicly owned land.
  7. Promote conservation of water resources
  8. Promote brownfield remediation and redevelopment
  9. Encourage, consistent with the State Development and Redevelopment Plan and smart growth strategies and principles appropriate patters of compatible residential, commercial and industrial development, redevelopment , and economic growth, in or adjacent to areas already utilized for such purposes, and discourage piecemeal, scattered, and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way while protecting the Highland environment from individual and cumulative adverse impacts.

As can be seen from the above list, the main purpose of the planning area was to preserve the area while allowing limited and controlled development. This goal was reinforced by Section 12 of the Statute that provided the regional and local master plan for the preservation area shall include:

 A preservation zone element that identifies zones within the preservation area where development shall not occur in order to protect water resources and environmentally sensitive lands . . .

S743 completely ignores this requirement of the law as it restores and extends permits that may predate the Highlands Act.  The Highlands act specifically provided at all permits would expire within three years of the enactment of the Highlands if construction, beyond site preparation, had not begun.   That means if you had a permit and did not begin meaningful construction prior to August 10, 2007 your permit expired.  Under S743 permits that expired between January 1, 2007 up to the present will be revived.  Permits that have been gone for up to 5 years will now be valid.  Many of these permits would pre-date the Highlands Act and would pre-date any regional master plan and local plan that protects the sensitive areas within the planning area.

It is difficult to rectify the strong intent to protect the Highlands Planning Area with the expanded language in S743.  If this bill passes out of the Senate it will be hard to justify that vote against the 34 Senators that voted in favor of the Highlands Act in 2004.  Hopefully S743 is not passed to in its current form and the Senate stands up for the environment and all of us today.

 

Please read these related posts:

Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

 

Permit Extension Act:

Governor does not veto Permit Extension Act

Enviros seek Governor’s veto of Permit Extension Act

0 to 60- Permit Extension Act passes both houses.

A bullet train that will not stop

Permit Extension Act may not be so extended

New Jersey wants to stop time

Waiver Rule: One Rule to Rule Them All!

Written by Mike Pisauro on April 30th, 2012 in Courts, legislation, Regulation | 1 Comment »

With the adoption of the “Waiver Rule” on March 6, 2012 the Department of Environmental Protection (DEP) attempted to give itself the authority to waive the requirement of any environmental regulations.  In order to qualify for a waiver one of the following four categories must be met:

  • Conflicting rules
  • Strict compliance with the rule would be unduly burdensome
  •  net environmental benefit; or
  • A public emergency

28 environmentalist and labor organizations immediately filed a lawsuit against the DEP asserting that the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization.  The promulgation violates separation of powers provisions of the New Jersey Constitution.  The waiver rule also fails to meet required standards for specificity.  The waiver rule fails to set up necessary process for the issuance of waivers.  The promulgation of a single waiver rule for all environmental statutes is overly broad.”

What does this all mean?  Let us take a closer look at each of these points.

First, the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization” and ‘the promulgation violates separation of powers provisions of the New Jersey Constitution.” Put plainly, does DEP have the authority to issue one rule that can affect the implementation of hundreds of other rules?  Did the Legislature grant DEP the authority to waive statutory or regulatory requirements? “An administrative agency only has the powers that have been ‘expressly granted’ by the Legislature and such ‘incidental powers [as] are reasonably necessary or appropriate to effectuate’  those expressly granted powers.”  Borough of Avalon v. New Jersey Dept. of Environmental Protection, 403 N.J. Super 590, 607 (App. Div. 2008).

That delegation of authority can be expressed or implied.  I do not believe that even DEP believes it has the express authority to issue this waiver rule.  DEP asserts that this power arises out of the implied powers in its authorizing statute as well as various other statutes.  There is a problem with this argument.

If the power is derived from its implicit powers, those powers must be fairly necessary to the implementation of the statutory authority.  In looking at the exercise of implicit authority, the Courts have stated that where there is “reasonable doubt as to whether such power is vested in the administrative body, the power is denied.”  This is because an agency only has the power that has been granted or delegated to it.  There is no statute which provides the Department with the authority, independent of its various individual statutes, to issue a blanket waiver.   Just as important, when the exercise of an implicit power concerns a policy question of significance, that power has not been delegated by the Legislature to an agency.  The Legislature has reserved policy questions of significance to itself..  What “greater policy question” can there be than which environmental protection is inferior to other protections?

Second, “the waiver rule also fails to meet required standards for specificity.” This is evidenced by the fatal deficiencies in qualifying 3 out of the 4 categories under which an applicant is eligible to apply for a waiver. Under the “conflicting rules” category are situations where compliance with one rule is prohibited by compliance with another rule – resulting in a conflict.  Further, this conflict is not limited to environmental regulations – it extends to   other agency rules as well.  The Waiver Rule, however, does not provide any guidance as to how a conflict is to be resolved.  For example, if a DOT rule requires 30 foot wide roads but constructing a 30 foot road on a parcel of property would put a portion of that road into the wetlands, under the Waiver Rule the wetland might be sacrificed for the road.  Another conflict might arise when a project is required to have zero net fill in a wetland but, in order to comply with that requirement, the road would be subject to flooding.  Which requirement takes precedence?

Under the second category, a waiver could be issued in situations where strict compliance with the rule would be unduly burdensome.  The rule ‘defines’ unduly burdensome as either:

  1. Actual, exceptional hardship for a particular project or activity, or property; or
  2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

However, the rule does not define an “actual, exceptional hardship.” Rather, the rule continues to state that one of factors to be considered is whether “the person seeking the waiver may have directly caused or contributed to the circumstances that resulted in the rule being unduly burdensome.”  This means that even if the applicant caused the hardship they will not be prohibited from getting a waiver.  For example if an applicant subdivided its property so that one or more lots are impacted by wetlands that applicant can seek a waiver from strict compliance with the wetlands rules, because it would be an exceptional hardship to comply with those rules.  DEP may still grant that waiver even though the applicant has created its own need for a waiver.   This creates an incentive for applicants to create hardships so as to maximize their economic profits while maximizing environmental damage.

The second part of the definition of “unduly burdensome” is also a bit vague on the details. The Waiver Rule does not require that the “alternative measure of compliance”  provide protection for the resource that was originally protected by the rule for which the waiver is being sought..  How then does one judge the importance of protecting one resource over another?  Is clean water more important than a nesting site for an endangered species?  Is clean air more important than protecting the water quality of a category one river?  One can certainly envision the arguments of a developer that they want to remediate and develop a contaminated site but to do so they need to impact a river.

The third criteria requires a net environmental benefit.  This provision is not limited to a situation where an applicant thinks that it may have a better way to meet the standards than what is required by the rule.  It could also apply to situations where an applicant is proposing exceeding one standard but may subject another media to less protection.  As noted above, regarding unduly burdensome, how does DEP make the determination that one statutory scheme deserves more protection than another.

The third issue raised by the waiver rule is that “the waiver rule fails to set up necessary process for the issuance of waivers.” The Courts have required agencies to “to structure and confine their discretionary powers through safeguards, standards, principles and rules”  in order to satisfy due process and produce reasoned and principled decisions” (Crema v. N.J. Dep’t of Envtl. Prot., 94 N.J. 286, 301, 463 A.2d 910 (1983)). There are no safeguards, and no standards or principles by which to judge or evaluate a request for a waiver.  In fact, DEP is delaying implementation of the waiver rule until August 1st in order to devise these guidelines.  There is no way that anyone could look at a particular project and apply the Waiver rule to it and know before applying whether that project would get the requested waiver or not.

As pointed out above 3 of the 4 categories for a waiver are so broad and undefined as to be meaningless.

The issue raised by the rule is that “the promulgation of a single waiver rule for all environmental statutes is overly broad.”  given that many of the statutes and their implementing regulations already provide for a relaxation of the rules under certain expressed circumstances, why does the department really needs one rule to rule them all.  They do not need the rule and more importantly they do not have the authority to issue the rule.

This blog post is my own opinion and is not intended to reflect the opinion of any client or organization.

Cash for Clunkers Interview

Written by Mike Pisauro on July 7th, 2009 in Federal, legislation | No Comments »

On June 24th, President Obama signed into law the Supplemental Appropriations Act of 2009. A part of this appropriations act is the “Consumer Assistance to Recycle and Save Act of 2009″ or Cash for Clunkers as it is better known.

Prior to the passage of the act, I gave brief interview with Fox News on behalf of the New Jersey Environmental Lobby (I am their governmental affairs agent). The piece aired after the passage of bill and can be seen here. In a portion of the interview that did not air, I indicated that the House version of the bill was not an environmental bill and was not going to do much for the environment. The clip of me from the piece was in reference to the Senate version of the bill sponsored by Sen. Feinstein and Collins.

The Cash for Clunkers law defines a clunker as any car that gets 18 mpg and under. This definition is ok and not the problem. The real problem lies in the Act’s definition of fuel efficient vehicles. The act defines a fuel efficient car as almost any car that gets at least 22 mpg. This is 3 miles per gallon less than the actual average mpg of our fleet and 5.5 mpg less than what current regulations require. There are two tiers of vouchers. A person can get a $3,500 voucher is their new fuel efficient car is at least 4 mpg greater than what they trade-in (as long as it is at least 22 mpg.) A person can receive a $4,500 voucher if their new fuel efficient car is at least 10 mpg greater than the trade-in. Therefore, a person can trade in their 18 mpg gallon car for a 22 mpg call and get a $3,500 voucher. Also someone could trade in their 12 mpg car for a 22 mile per gallon car and get a $4,500 voucher. In contrast the Senate bill would provide vouchers for vehicles that got at least 25% than the current CAFE standard required.

I have a very hard time calling a car that gets less than the current fleet wide average and even less than what the law requires fuel efficient. I also have a very hard time justifying paying a voucher for such a program on environmental grounds. It would appear that the sponsors of the Senate version agree. While it may or may not be good for the economy and the auto industry, the Cash for Clunkers will not make any major improvements in the environment. As an environmental law, Cash for Clunkers is a clunker.

0 to 60- Permit Extension Act passes both houses.

Written by Mike Pisauro on June 24th, 2008 in legislation | 1 Comment »

Yesterday, a much amended permit extension act was passed in both houses. It was approved by a vote of 70 -9 – 0 in the Assembly and 33 – 2 in the Senate. It now awaits the Governor’s signature. It took just 33 days from introduction to passage in the legislature.

The bullet train that will not stop

Written by Mike Pisauro on June 18th, 2008 in legislation | 2 Comments »

As I have noted in past blogs, the New Jersey Legislature is rapidly pushing through a bill that would toll the running of time on almost any governmental approval, permit, authorization, etc. It is scheduled to be considered in the Senate Economic Growth Committee tomorrow and in the full assembly on Monday. This bill is on the rocket path. It was introduced less than one month ago and will likely both houses by the end of next week. One wishes that good legislation would move so quickly. Bills involving renewable energy have taken months in in some instances over a year to move through committees and get considered by the legislature. Last year, there was a bill that would exempt renewable energy systems from increasing the value of your home for property taxes. That bill could not make it to the finish line last year and had to be reintroduced. It was a bill that not only would have a positive impact on the environment but also on the economy.

Despite the rhetoric the permit extension act will have no economic impact in the very near future. The day after this bill gets passed the economy will still be bad, financing will not be available for projects and the state will still be too expensive for many of us. One wishes that real economy boosting measures received the same effort as this false one.

Permit Extension Act may not be so extended.

Written by Mike Pisauro on June 12th, 2008 in legislation | No Comments »

Today, the Assembly version of the Permit Extension Act of 2008 was heard in the Assembly Environment and Solid Waste Committee. It was last heard in the Housing and Local Government Committee where it was passed out of the committee without hesitation. The version that was passed out of the Environment and Solid Waste Committee was vastly different than the one that was introduced.

For example the original bill reached back to January 1, 2006 and revived the permits and extended those permits until 2012 plus two years. The amended bill only goes back as far as the beginning of this year and it only extends permits to December 31, 2010 plus the remaining length of the permit up till one year. For example if you had one day left on your permit your permit is tolled until January 1, 2011. If you had two years left on your permit that permit is good until December 31, 2011 not 2012.

The amended bill excludes environmentally sensitive areas, certain Highlands and Pinelands areas, and several environmental programs. The programs that are excluded are water quality planning act, center designations under the coastal area facility act or the state planning act.

Most telling on how bad this bill was, the EPA issued a letter to the legislative leaders saying the bill was bad. The regional administrator wrote, “I am concerned that if enacted, this law might be inconsistent with a number of federal environmental law . . .” The letter can be seen here EPA letter to NJ. Commissioner Jackson also testified to misgivings on the bill.

The members of the Assembly Environment and Solid Waste Committee especially Chairman McKeon were great. The Senate version of the bill will be heard in the Senate Economic Growth Committee.

New Jersey wants to stop time

Written by Mike Pisauro on June 5th, 2008 in legislation | No Comments »

I came out of an assembly hearing today at which I testified against a bill. I wanted to provide my quick thoughts about the bill and will try to go into a more in-depth review latter. The Assembly Housing and Local Government committee consider A2867 the Permit Extension Act of 2008. The gist of the bill is that the state is in a bad economy and that environmental regulations are in part a cause of that bad economy. So to rectify the problem the bill will extend almost any and all governmental permits or approvals from 2006 to 2012. This will bring back to life permits or approvals that may have already expired in 2006 or 2007 or up to now. Any permit or approval a person has today that is set to expire between now and 2012 has an automatic extension until 2014. The theory behind this is that we need to give the economy a jolt and by extending the permits up to and past 2012 the housing and construction industry will bring the economy back.

I believe this is a false premise. To be sure New Jersey as well as the rest of the country is in bad economic shape. And to be sure it take time to get the various permits and approvals from local government and state government before you can build an office building or housing development. What I do not believe is that those permits that expired anytime around January 1, 2006 expired because of the economy. I suspect most of those permits expired because the permit holder, for whatever reason, decided not to proceed with the project.

I was wonder how extending permits to 2012 will help the economy today. Those projects that have permits today and that do not expire tomorrow can still be built. They are not being built because of the financial markets are not lending the money. At least with office buildings and factories, these projects are not being built because there is not a demand for these buildings. Industry and business are not expanding they are contracting. The soaring price of energy, of oil, of the State’s property taxes are having a negative impact. I do not see how and no one testified today that the passage of this bill will have any positive impact on our economy today or tomorrow.

The other thing I did not hear from anyone today was, “what was the economic impact of the permit extension act of 1992?” For you see we have done this before.  So there should be data to show what a great thing this is.  If it was such a great success, I would have supposed that someone would have told the committee that after passage of the bill that building and construction soared in 1993 and 1994 and 1995. There was no such testimony. We did hear that the act had to be extended.

If this is such a great thing, where is the cold hard facts supporting what a great job it did for the economy in 1992, 1993, etc. I would truly be interested in seeing that information, because I do know that the passage of this bill will not have a positive impact on are already polluted waters and air. I do believe that passage of this bill will put into grave jeopardy and chance of reaching the Global Warming Response Act’s goal of reducing greenhouse gas emissions 20% by 2020. I believe that passage of this bill will make it almost impossible for the State to meet its goals in the energy master plan to reduce energy consumption through enhanced building codes. It will also undo many positive laws and regulations that have been put into place since January 1, 2006.

NJ moves closer to ocean protection with the Coastal and Ocean Protection Council

Written by Mike Pisauro on January 8th, 2008 in Ocean | 1 Comment »

Last night the Assembly passed A4332, that creates the New Jersey Coastal and Ocean Protection Council.  The Senate passed a similar bill back on December 10th.  Now the bills are awaiting the signature of the Governor.

In 1973 the New Jersey legislature passed the Coastal Areas Facility Review Act because, “certain portions of the coastal area are now suffering serious adverse environmental effects resulting from existing development activity impacts”  NJSA 13:19-2.   Unfortunately, CAFRA did not meet its promises and in 2003 and 2004 the Pews Ocean Commission and the U.S. Commission on Ocean Policy both determined that our ocean and coasts are in critical condition.  For example the Pews commission found that:

       ·         more than 60 percent of our coastal rivers and bays are moderately to severely degraded by nutrient runoff.      ·         those species that we rely on commercially and recreational were in jeopardy from numerous causes.New Jersey’s coast is in the same boat as the remainder of the country.  Last summer saw garbage wash up on the shore, brown tides and fish kills.

The Coastal and Ocean Protection Council is the first step to making changes recommended by these Commissions and others. The Council will help DEP and other agencies coordinate their activities along the coast and in our oceans; to help formulate solutions to the problems that are facing this fragile, but important resource.  This Council’s work will not only improve our environment, but help enhance the economic viability of our tourism industry as well as the recreational and commercial fishing industry.  It is through the Council that we may begin to truly reach the goals set forth in 1973 with CAFRA, of stemming the, “continuing and ever-accelerating serious adverse economic, social and aesthetic effects . . . on the delicately balanced environment of that area.”  

Welcome to NJ Environmental Blog

Written by Mike Pisauro on January 7th, 2008 in Uncategorized | No Comments »

Welecome to my first blog. With this blog I will look at environmental issues affecting New Jersey. In upcoming entries I will be talking about global warming, RGGI, renewable energy, and coastal issues. If there is a topic you would like to read about, please let me know at Mike@fplegal.com

-Mike Pisauro