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:
- Actual, exceptional hardship for a particular project or activity, or property; or
- 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.