Waiver Rule In Jeopardy?

May 22, 2012 | No Comments
Posted by Steven J. Corodemus

A significant challenge to the DEP’s adopted “Waiver Rule” was made yesterday in the New Jersey Assembly Environment and Solid Waste Committee. The Committee released Assembly Concurrent Resolution 37 (ACR37) http://www.njleg.state.nj.us/2012/Bills/ACR/37_I1.HTM from committee with a 3-2 vote. Relying on its regulatory oversight set forth in Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Committee’s resolution challenges the DEP’s authority to promulgate a rule that waives the requirement of its own rules as a violation of the Administrative Procedures Act. The ACR also asserts that the rule exceeds DEP’s authority because it waives the requirements of specific statutes.

The Governor’s approval of the ACR is not required unlike the general rules for the passage of legislative bills. The NJ Senate has already released its version SCR 59 from committee. Both concurrent resolutions are staged for floor votes. Once the ACR is adopted by both houses, the Commissioner of Environmental Protection will have 30 days following transmittal of the resolution to amend or withdraw the proposed rules and regulations or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.

On a parallel track the Columbia Environmental Law Clinic representing challengers from environmental and labor groups has sued the Department principally on the same grounds set forth in the concurrent resolutions. The effective date of the Waiver Rule is August 1st.

The Government Affairs Department of this law firm will continue to track the progress of this bill and other bills of interest to its clients.

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