TRENTON, N.J. (CBSNewYork/AP) — A New Jersey appeals court heard arguments on Monday on a case asking whether the state Department of Environmental Protection should look out for the interests of business as well as the environment.
A lawsuit has been filed against the state by 28 environmental and labor groups. They hope to get a court to strike down parts of a DEP regulation adopted last year that allowed the agency to grant waivers to many of its own rules in the interests of business.
“It’s nearly impossible to predict how that might be used,” Edward Lloyd, a Columbia University law professor arguing for the environmental groups, told the three-judge panel. “And I think that it invited arbitrary decision-making.”
The court made no decision Monday, and gave no indication when it might rule.
The waiver issue is a technical one, but it is perhaps the biggest debate over the environmental policies of the administration of Gov. Chris Christie. It’s a rare moment when environmental groups oppose a DEP regulation and business groups support it.
Christie ordered all administration departments to come up with regulations to allow waivers of their rules as a way to cut bureaucratic red tape.
Since the DEP’s waiver rule went into effect in August, there have been 14 applications for exemptions, a lawyer for the state told the judges. Both of those that have been decided so far have denied the business’ requests.
Paul Schneider, a lawyer for the New Jersey Builders Association, said it’s not a case where businesses will be able to do whatever they want because of the waiver rule.
“Getting a waiver from DEP isn’t like going to Macy’s to get a shirt,” he said, noting that the waiver calls for officials to consider the “core mission” of the DEP and that there’s a process to decide which rules can be waived.
Lawyers for business groups said the new rule is needed, in part, because of the volume of DEP rules _ one estimate is there are 5,000 of them _ and that they sometime contradict one another.
Dennis Toft, who represented several business groups, said that some regulations restrict how much fill material can go in wetlands and other sensitive areas while others mandate fill to raise buildings and other developments above flood levels.
The waiver, he said, lets the DEP decide which rules take precedence.
Lloyd said the solution isn’t telling developers they don’t have to follow rules. Instead, he said, there can be ways to follow them all, though possibly at higher costs. He pointed to the area in Trenton where Interstate 195 and Routes 29 and 129 come together. It’s in a wetland, and it’s elevated out of the flood zone using structures such as pilings rather than fill.
Judges had tough — but not particularly skewering — questions for lawyers on both sides on Monday in a courtroom packed with representatives of environmental and business groups.
The judges pushed Lloyd to explain why it would be acceptable for the state to suspend its rules temporarily but not consider waiving them on request. Lloyd said there is a legal distinction between the types of action.
One thing the judges seemed to be wrestling with was the idea of the DEP looking out for businesses at all.
“How can the core mission of the Department of Environmental Protection ever be synonymous with business interests?” asked Judge Jack Sabatino. “Isn’t it an oxymoron to suggest that granting a waiver is consistent with the core mission of the department?”
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