NJ Enviro Waivers Get Green Light Despite Judicial Rebuke

March 21, 2013 – In The News
Law360

A New Jersey appeals court found that the state Department of Environmental Protection improperly issued guidance documents for companies applying for exceptions from land use, site remediation and other regulations.

Holding that adequate standards remain in place for the so-called waiver rule, the 54-page opinion from the state's Appellate Division represents a significant win for those that fall under the department's regulatory umbrella.

A coalition of 28 environmental and labor groups challenged the rule shortly after its March 2012 adoption, claiming the DEP had exceeded its authority and failed to spell out standards to control agency discretion. Noting that agency regulations carry a presumption of validity in such disputes, a three-judge appeals panel rejected those concerns.

In the appeal, opponents contended that most of the waiver criteria are too vague. But the court found that the rules contained enough regulatory standards to guide the DEP's review of applications.

The decision made sense to David Restaino, a Fox Rothschild partner whose practice includes environmental litigation.

“I see it as the court's method of telling the DEP that you've got the authority, but you've got to be a little bit more careful about how you execute it. And if you do something that is going to smell like a rule, then you're going to have to make it a rule,” Restaino said.