March 21, 2013
As stated in this article, "A New Jersey appeals court found Thursday that the state Department of Environmental Protection improperly issued guidance documents for companies applying for exceptions from land use, site remediation and other regulations, but that won't stop the regulator from continuing to mull applications under its controversial waiver program, attorneys said.
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.
The court's opinion means the waiver program can move forward without the guidance, according to Andrew B. Robins, of counsel in the real estate practice at Sills Cummis & Gross PC.
'Unless the Supreme Court took up the case, [the opinion] would provide a level of confidence that the waiver rule is out there,' Robins said. 'It was very clear that the DEP has very sufficient authority to issue that rule, even without the guidance.'
On the guidance question, the court may have provided greater clarity about what should be subject to formal rulemaking, but the opinion may also limit the flexibility of agencies to spell out their regulatory positions, according to Robins.
'How that's going to be handled is a real issue in New Jersey,' Robins said. 'I would hope that the Legislature takes up a reform of the APA.'”