New Jersey Legislature Advances Environmental Justice Bill

The New Jersey Legislature is advancing environmental justice legislation designed to give certain New Jersey communities greater oversight over the environmental permitting process. 

On January 24, 2019, the Senate Environment and Energy committee unanimously voted to advance Senate Bill 1700 (S1700), and it now heads to the Senate Budget and Appropriation Committee for additional consideration.  

While similar bills have been introduced over the past several years, they failed to gain traction. The likelihood of passage is arguably greater now that environmental justice is a top priority of the Murphy Administration. 

New Jersey Environmental Justice Legislation 

S1700 would require entities seeking environmental permits for power plants, resource recovery facilities or incinerators, sewage treatment plants, transfer stations, recycling centers, landfills and similar facilities to meet certain additional requirements before obtaining a permit if the facility is located in a “burdened community.” The term “burdened community” is defined as any census tract, as delineated in the most recent federal decennial census, that is ranked in the bottom 33 percent of census tracts in the State for median household income.   

Meanwhile, “facility” is defined as any: (1) electric generating facility with a capacity of more than ten megawatts; (2) resource recovery facility or incinerator; (3) sludge combustor or incinerator;  (4) sewage treatment plant with a capacity of more than 50 million gallons per day; (5) transfer station, recycling center, or other solid waste facility with a combined monthly volume in excess of 25 tons; (6) landfill, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; (7) medical waste incinerator; or (8) major source of air pollution, as defined by the federal Clean Air Act. 

Specifically, Senate Bill 1700 provides that, beginning 180 days after its enactment, the New Jersey Department of Environmental Protection (NJDEP) would not be permitted to grant certain environmental permits for any new facility, or for the expansion of an existing facility, located in whole or in part in a burdened community, unless the permit applicant first:  

• Prepares a report assessing the environmental impact of the proposed new or expanded facility. The report would assess the environmental impact on the burdened community including cumulative impacts, any adverse environmental effects that cannot be avoided should the permit be granted, and the public health impact on the burdened community of the proposed new or expanded facility;  
• Transmits the report at least 30 days in advance of the public hearing required under the bill to the NJDEP, the governing body and the clerk of the municipality in which the burdened community is located, and the designated representative of the burdened community. The permit applicant would be required to make the report available to the public at least 30 days prior to the public hearing; and   
• Organizes and conducts a public hearing in a location as convenient as possible to all interested parties. The bill establishes specific requirements for public notice of the hearing.  At the public hearing, the permit applicant would be required to provide clear, accurate, and complete information about the proposed new or expanded facility and its potential environmental and health impacts in the burdened community.  The permit applicant would also be required to provide an opportunity for meaningful public participation by residents of the burdened community. Following the hearing, the DEP would be required to consider testimony presented at the public hearing, and evaluate any revisions or conditions to the permit that may be necessary to reduce the adverse impact to the public health or to the environment in the burdened community.  

Under S1700, the NJDEP would not be permitted to issue a decision on the permit application until at least 60 days after the public hearing. More importantly, the agency would have the authority to deny a permit application in a burdened community upon a finding that approval of the permit, together with the cumulative impacts posed by the proposed new or expanded facility, would constitute an unreasonable risk to the health of the residents of the burdened community and to the environment in that community.  The DEP, when evaluating an application for a permit under the bill, would be required to assess community support for the proposed new or expanded facility, and be required to consider such support, or the lack thereof, in its decision to grant or deny a permit.  

As originally drafted, S1700 would have authorized the governing body of a municipality to prevent the NJDEP from issuing a permit for a new or expanded facility. However, the version that the Senate committee approved omits the provision. 

Likelihood of Passage 

Environmental groups support the New Jersey environmental justice legislation. “For far too long, we have dumped these facilities that no one wants in these communities,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “For the first time, this bill puts teeth into environmental justice measures.’’  However, business groups maintain that the bill will add another layer of bureaucracy to the environmental permitting process, resulting in both delays and higher costs.  

The attorneys of the Scarinci Hollenbeck Environmental Law Group will continue to monitor the progress of the bill and post updates.