New Jersey Promulgates A Regulation Permitting Waiver of Environmental Regulations: Will the Environment In New Jersey Collapse as a Result?

Late last week, the New Jersey Department of Environmental Protection adopted a rule providing itself with the authority to waive environmental regulations in limited circumstances. According to the Daily Environmental Report, opponents of the regulation immediately attacked the rule, saying that it

is an attack on environmental protections and will open up New Jersey’s regulatory system to pay-to-lay. This rule will not only undo 30 years of environmental protections but will create more pollution, traffic, and flooding and threaten public health and safety.”

Yikes. And you already thought that New Jersey was just a string of Superfund sites linked by the New Jersey Turnpike! (I grew up in New Jersey, so I can make such jokes.)

Given the claims of imminent doom, let’s look at what the rule will do. It will allow NJDEP to waive any regulations where any of the following circumstances exists:

  • the regulation conflicts with another regulation
  • strict compliance would be “unduly burdensome”
  • allowing the waiver would create a net environmental benefit
  • a public emergency

The rule preclude waivers in a number of circumstances. These include:

  • No waivers of federal statutes or regulations or state statutes
  • No waivers under delegated programs where the waiver would be inconsistent with the delegation
  • No waivers of numeric or narrative standards protective of human health
  • No rule concerning designation of endangered species.

I’m sorry. I think I missed something. What’s so bad about this regulation? One of the problems with media-based regulation – something everyone has long known – is that the various regulatory programs don’t place nice with each other. Pretty much, all this regulation does is provide NJDEP with an opportunity to take a big picture look at the impact of its regulations on particular projects and make sure that its various programs do in fact play nice, yielding the most cost-effective net benefit as applied to particular projects.

Aside from the general notion that environmentalists will oppose any reform proposed by a prominent GOP governor, the only fair-minded concern with this regulation can be that the “unduly burdensome” provision will be invoked without just cause. In this context, it is worth noting that “unduly burdensome” is defined in the regulation. It means “actual, exceptional hardship,” or imposition of a cost that could be eliminated by another approach that would yield “comparable or greater benefits” to the environment.” I ask anyone who litigates in this sphere how often courts will affirm waivers under this provision that are not based on truly “exceptional” circumstances.

Just as I wish that conservatives would support increased regulation when the science demonstrates that there are risks that need to be addressed, I wish environmentalists would not just accept regulations like this; I wish that they would advocate in favor of this regulation, which preserves fundamental protections, while building a broader base of support for necessary, appropriate, and cost-effective regulations.

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