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DEP Waiver Rule Comes Under Attack

There are two important regulatory initiatives up in Trenton tomorrow, both are likely to fly under the radar screens.

First the good news:

Mike Engenton, NJ Chamber of Commerce lobbyist, testifies in support of waiver rule at DEP hearing (4/14/11)

The Assembly Regulatory Oversight Committee will hear Assembly Concurrent Resolution ACR 206 (Barnes, McKeon, Gusciora (D’s)), which finds that DEP’s proposed “waiver rule” is inconsistent with Legislative intent.

This is a good move, the first step to forcing DEP to withdraw the flawed proposal or have it be killed by the Legislature. (see: Dialectic of Red Tape (or Waive This!)

The Senate version (SCR 239 – Buono,Gordon D’s) was released from Committee and is pending Senate floor consideration. Will Sweeney post it?

Now for some really bad stuff:

The Senate  Budget and Appropriations Committee will hear S1336/A 2129, to expand the scope of the Regulatory Flexibilty Act.

The bill is an ill-advised attack on necessary protections of public health and the environment, under the guise of providing flexibility to small business.

Small business often lack the expertise or resources to meet strict environmental requirements, and often are some of the worst violators and polluters. They need at least as much regulatory oversight as larger competitors.

The bill includes the standard political cover and rhetorical defense: a vague, unworkable, and unenforceable exception: so long as the public health, safety, or general welfare is not endangered;

But make no mistake, the bill is an all out attack on environmental regulations, and would create a poison pill to the adoption, enforcement, and implementation of needed protections.

Statehouse (Trenton, NJ)

The bill would create a new petition process for “small business” to block adoption and enforcement of regulations.

Every industry trade group has “small business” members who could do industry’s bidding and block environmental regulations under the pretext of small business flexibility.

The bill includes new factors and standards, that create an impossible burden for a regulatory agency to meet, and thus invites challenges to virtually any regulation.

For example, the bill would allow a business to petition to block any rule if they could show that the state agency:

(2)   the regulatory flexibility analysis issued failed to contain or consider a matter or factor required by law or contained a clear error or omission of a material fact which directly resulted in the agency’s failure to consider, or the agency’s underestimation of, an adverse economic impact.

It is impossible for any agency to consider all material facts and economic impacts on each individual small business.

Similarly, it is impossible to not underestimate the economic impact on some small business.

By providing this petition process, the bill would block adoption of DEP rules required to implement federally delegated programs, and thus violates federal law.

Equally important is the fact that the bill does NOTHING to address the real problems facing small business, including:

• lack of effective consumer demand for products and services due to recession
• inability to secure financing;
• high health care costs; and
• competition from Wall Street backed corporate giants who are destroying Main Street level small business.

Thus, the bill is not only an attack on the environment, but a cruel joke to the small businesses suffering in this economic recession.