Sometimes we all fall behind. On March 21, 2013, the Appellate Division decided In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super. 100 (App. Div. March 21, 2013). A coalition of environmental groups had challenged administrative rules promulgated by the New Jersey Department of Environmental Protection that would allow DEP to waive rules in circumstances where (1) there are “[c]onflicting rules; (2) strict compliance with the rule would be unduly burdensome; (3) [a waiver would produce] net environmental benefit; or (4) public emergency [calls for waiver].” Appellants attacked the waiver rules as exceeding DEP’s authority and lacking adequate standards to guide DEP in granting or denying waivers. In an extensive opinion by Judge Parrillo, the Appellate Division rejected those challenges and upheld the waiver rules. The panel did, however, rule in appellants’ favor as to one collateral issue.
The environmental groups have now petitioned the Supreme Court for certification to review that decision. A copy of the petition, which includes the decision of the Appellate Division in the appendix to the petition, can be viewed here. The administrative law issues of this case are very important, and there are significant conflicting policy considerations, including a fundamental tension between the perceived needs of environmental protection and the perceived need to eliminate unwarranted constraints on economic development. The Supreme Court may very well grant review of the Appellate Division’s comprehensive published decision, whether to reverse or to affirm that ruling.