In wake of waiver decision, enviros look to Legislature, appeals

TRENTON – Environmentalists were disappointed in today’s court ruling upholding the right of the state to issue environmental waivers.

However, they were heartened that the appellate court agreed with them that the Department of Environmental Protection improperly sidestepped the state’s rule-making procedures.

Jeff Tittel, executive director of the N.J. Sierra Club, said they will continue to appeal, and that losing at the appellate level is not entirely unexpected.

But he said that he believes it’s possible that the split decision by the court halts, at least temporarily, the process because DEP has to redo its rule-making.

The court this morning ruled that the state could have a waiver rule, but said DEP did not follow proper procedure because it posted, for example, documents on its web site that had not gone through the proper rule-making procedure.

“The court did say that DEP went beyond the scope of the law,” Tittel said, but he said the court also ruled that it was not a fatal flaw, which he said the environmentalists dispute.

A spokesman for DEP disagreed with that interpretation, and said the process can continue.

“The court is saying we had the authority to implement the rule and had sufficient criteria to implement the rule,’’ said DEP spokesman Larry Hajna.  “It’s an important win for the department and for the administration.”

As for the ruling that the so-called “guidance’’ on the DEP web site should have been part of the rule, he said that that does not mean the process has been interrupted while DEP considers how or when to include the guidance into the rule.

The environmental lobby will continue its appeals.

“The waiver law creates open season on the environment,’’ said Tittel, adding that one thing learned from Superstorm Sandy was that the areas more environmentally protected fared better than the areas that weren’t.

He said they remain hopeful on appeal and through legislative means that they can eventually overturn the rule.

And Maya van Rossum, Delaware Riverkeeper, also expressed disappointment.

“We think the judge got it wrong,” she said. “DEP did not put forth a rule that has clarity, that makes sense.”

She said the avenue to take now for environmentalists is clear.

“It is very clear that the Legislature needs to step up now and make this right,” she said.

Earlier story:

Court issues mixed decision on waiver rule

In wake of waiver decision, enviros look to Legislature, appeals