July 11, 2016
NJ Supreme Court Upholds Appellate Division Ruling Striking Down the DEP’s Public Access Rules
The New Jersey Supreme Court declined to hear an appeal by the New Jersey Department of Environmental Protection (“DEP”) on the legality of its Public Access Rules. Thus, Hackensack Riverkeeper and NY/NJ Baykeeper’s favorable decision from the Superior Court of New Jersey, Appellate Division, remains good law.
Hackensack Riverkeeper and NY/NJ Baykeeper first brought a legal challenge to the rules in 2012 because the rules lacked any legislative guidance from the State and imposed inequitable restrictions on the public access that our urban coastal communities could provide. The Appellate Division agreed, issuing a decision in December 2015 that found that the rules “far exceed the Legislature’s limited delegation of authority to DEP” under the Coastal Area Facility Review Act to regulate land uses in the coastal zone. Similarly, the Court found that the rules were not authorized by the public trust doctrine.
Following the Appellate Division’s ruling striking down the rules, the DEP petitioned the NJ Supreme Court to reconsider the Appellate Division ruling. The Supreme Court rejected the DEP’s petition and also removed a temporary stay of the Appellate Division’s opinion that had allowed the rules to remain in place, pending the DEP’s petition.
Now, with the rules officially struck down and no longer in effect, the Legislature will need to enact comprehensive public access legislation that addresses stakeholder concerns. Hackensack Riverkeeper and NY/NJ Baykeeper participated in a Task Force led by Senator Smith to do just that. We expect legislation to be introduced in the coming months. In the meantime, the DEP still has authority to require site-specific public access requirements through its permitting process, but, thanks to our successful litigation, the DEP can no longer implement its discriminatory rules that unfairly put restrictions on New Jersey’s northern coastal communities.