Supreme Court Refuses to Hear DEP Waiver Rule Appeal

In what is probably the final chapter in the judicial challenges to the DEP’s rule authorizing it to waive many of its rules in certain circumstances, the Supreme Court of New Jersey has denied the appellants’ petition for certification. This lets stand the Appellate Division decision upholding the rule.

Court Bars DEP’s Reliance On “Guidance” For Stormwater Management Plans

In upholding DEP’s “waiver rules” earlier this year, the Appellate Division of New Jersey Superior Court called into question the agency’s reliance on “guidance documents” in lieu of formal rulemaking.  In that case, the court upheld the waiver rules despite DEP’s use of guidance documents in implementing the rule, finding that there are sufficient substantive […]

Waiver Rule Court Decision Appealed

Late last week, the Environmental Groups which lost their appeal challenging the validity of the NJDEP Waiver Rules, filed a Notice of Petition for Certification to the New Jersey Supreme Court.  This Notice will be followed by the actual petition, which will argue why the New Jersey Supreme Court should agree to accept the appeal.  […]

Appellate Court Upholds DEP Waiver Rule

Adopting the legal arguments made by Paul H. Schneider and Afiyfa H. Ellington, the Appellate Division of New Jersey Superior Court unanimously upheld DEP’s controversial “Waiver Rules,” which allow DEP to relax or waive strict compliance with its regulations.  The rules specify four circumstances in which DEP may consider a waiver: (1) when rules conflict, […]

Labor Unions Seek to Overturn “Waiver Rule”

Oral argument was held before a panel of three Appellate Division judges in the case appealing adoption of the NJDEP Waiver Rule.  A group of environmental organizations and labor unions seek to overturn this Department-wide Waiver Rule, which allows NJDEP to grant waivers from its own regulations in certain very limited cases.  The Court reserved […]

DEP Denies Initial Waiver Requests

Since August 1, 2012, the New Jersey DEP has been entertaining applications for relief pursuant to its rules governing the waiver of DEP regulations.  In the first two cases in which DEP has decided waiver applications on their merits, DEP denied both waiver requests. In one case, the applicant sought a waiver from the Filled […]

Waiver Rule In Jeopardy?

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 […]

DEP Adopts “Waiver Rule”

DEP’s long-anticipated “Waiver of Department Rules”, the so-called “waiver rule”, has finally been adopted. The waiver rule allows DEP to relax strict compliance with its regulations. The rule proposal was the subject of much criticism and debate. Environmental groups vilified the proposal claiming waivers will eviscerate environmental regulatory programs and the Legislature attempted to derail […]