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On May 2, 2020, Governor Phil Murphy signed Executive Order 136 (EO136), which directly addressed New Jersey Department of Environmental Protection (DEP) processes for reviewing applications for environmental permits. At the time, EO136 was the latest in dozens of orders the governor signed in response to the COVID-19 pandemic (many have been signed since). EO136 took effect immediately and, under its express language, is to remain in place until revoked or modified by further executive order.

The overall thrust of EO 136 was to toll the time frames under which DEP operates in reviewing and approving environmental permits. Every year, DEP processes thousands of permit applications, which authorize development in areas regulated by DEP's programs, including freshwater wetlands and coastal areas. In reviewing the applications, DEP is subject to the 90 Day Law, which requires that DEP process certain land use permits within that review period. EO136 suspended that statute, giving DEP additional time to process applications.

Conversely, the order also gave DEP the authority to establish earlier time frames for permitting decisions and to expedite applications it deems "necessary" for the protection of public health, safety or the environment, or if the application is related to response to the COVID-19 pandemic.

The order also tolled time frames relating to public notice requirements in DEP's regulatory programs. Most DEP land use permits (as well as other types of approvals) require that applicants provide some notification to the public that they are seeking the subject permit, which gives interested parties (such as neighboring landowners) an opportunity to comment on the application. The type of public notice required depends on the specific approval the applicant seeks. EO136 directed the DEP commissioner to issue an Administrative Order (AO) within five days, extending the regulatory time frames during which DEP will accept public comment on applications for permits or other approvals. (DEP issued the AO on May 8, 2020.)

EO136 also takes action on some specific DEP programs, including time frames for businesses to submit registration forms to engage in soil and fill recycling services under the recently enacted "Dirty Dirt" law. In addition, the order extends the deadline for municipalities to submit certain recycling information to DEP, as well as reporting deadlines for certain entities that collect electronic devices for recycling or disposal, by 60 days.

The language of EO136 itself also provides that DEP will attempt to process applications within the time frames that normally would apply absent the order.

Constitutional Implications

While environmental lawyers regularly deal with the scope of executive authority in the context of administrative agency action, EO136 presents a more unique legal question: What authority do the governor and DEP have to alter processes embodied in New Jersey's environmental statutes and its corresponding regulations?

In issuing EO136 (as well as other executive orders related to the state's response to the COVID-19 pandemic), the Murphy Administration relied on the New Jersey Civilian Defense and Disaster Control Act, N.J.S.A. A:9-33 et seq., and the Emergency Health Powers Act, N.J.S.A. 26:13-1 et seq.

The Disaster Control Act was enacted in 1941 and broadened in 1942 in response to the United States' entry into World War II. The purpose of this act is to "provide for the health, safety and welfare of the people of the State of New Jersey." It broadly empowers the governor "to make such orders, rules and regulations as may be necessary adequately to meet the various problems presented by any emergency." The specific provisions of the Disaster Control Act cited in EO136 generally afford the governor the power to declare emergencies, assume control of emergency management, and commandeer public and private resources to respond to emergency situations. The Disaster Control Act provides the governor with these emergency powers when "necessary to avoid or protect against any emergency," or when the "control of any disaster is beyond the capabilities of local authorities."

The Emergency Powers Act was enacted in 2005 in the wake of 9/11. Under this Act, "[t]he Governor, in consultation with the [C]ommissioner [of Health] [(the 'commissioner')] and the Director of the State Office of Emergency Management, may declare a public health emergency." Like the Disaster Control Act, broad authority is provided under the Emergency Powers Act. Specifically, "[w]ith respect to a declared state of public health emergency, the commissioner may take all reasonable and necessary measures to prevent the transmission of infectious disease or exposure to toxins or chemicals and apply proper controls and treatment for infectious disease or exposure to toxins or chemicals."

In addition, "[t]he commissioner shall have the power to enforce the provisions of this act through the issuance of orders and such other remedies as are provided by law." Further, "[u]pon declaration of a disaster pursuant to [the Disaster Control Act], the Governor may exercise the powers granted to the commissioner pursuant to [the Emergency Powers Act]."

Nowhere in the Disaster Control Act or the Emergency Powers Act is the governor expressly authorized to suspend the operation of environmental statutes and regulations, as Governor Murphy has done with EO136. The Disaster Control Act does authorize the governor "to make, amend and rescind orders, rules and regulations" as provided in the act, and declares it unlawful for any state governmental agency "to adopt any rule or regulation or to enforce any such rule or regulation that may be at variance with any such order, rule or regulation established by the Governor."

This section confers further authority on the governor, stating that: "In the event of a dispute on the question of whether or not any such rule or regulation is at variance with an order, rule or regulation established by the Governor under this act, the determination of the Governor shall control." However, N.J.S.A. A:9-40 does not expressly empower the governor "to make, amend and rescind" statutes enacted by the legislature. Notably, many of the environmental laws impacted by EO136, including those explicitly identified in EO136, are found in statutory law, not administrative regulations; the 90 Day Law is one example.

Consistent with the broad language of the Disaster Control Act, its language, including N.J.S.A. A:9-40, is largely ambiguous, and research has not revealed any case law that interprets and clarifies the scope of the governor's authority under it. Overall, there is minimal case law on the Disaster Control Act, and guidance on the Disaster Control Act in relation to separation of powers issues between the executive and legislative branches is even more limited. In cases that have addressed this issue, courts have found that executive orders did not usurp legislative authority and upheld the orders as a valid exercise of the broad powers conferred to the governor by the Disaster Control Act. Examples include Worthington v. Fauver, 88 N.J. 183 (1982), and Perth Amboy Bd. of Educ. v. Christie, 413 N.J. Super. 590 (App. Div. 2010). The courts looked to the New Jersey Constitution and an analysis of the legislative intent behind the statutes at issue and the Disaster Control Act to reconcile the apparent contrast between statute and executive order.

Legal actions related to Governor Murphy's many executive orders related to COVID-19 have already been filed. It remains to be seen whether a court will reach the merits of any challenges to the validity of the orders, or whether they will be revoked by further executive action before then. In any event, EO136 serves as a reminder that constitutional issues impact every area of practice, and the scope of authority of any branch of government continues to be tested.

David J. Miller, a shareholder, focuses his practice on environmental regulatory, real estate and corporate transactional matters at Giordano, Halleran & Ciesla in Red Bank. Linda M. Lee, an associate at the firm, concentrates on environmental, redevelopment and real estate law.