NJDEP Begins Implementing Environmental Justice Law

NJDEP Begins Implementing Environmental Justice Law

The New Jersey Department of Environmental Protection (NJDEP) is wasting no time in implementing the state’s environmental justice initiatives. On September 22, 2021, Commissioner Shawn M. LaTourette issued an Administrative Order (AO 2021-25) clarifying the NJDEP’s permit applications assessment for facilities located or sought to be located in overburdened communities. The Order seeks to rely on existing tools to advance the NJDEP’s environmental justice policy goals while the agency works to promulgate the regulations necessary to implement the Environmental Justice Law (N.J.S.A. 13:1D-157).

“New Jersey’s environmental justice rulemaking process is the first of its kind in the nation. Guided by Governor Murphy’s deep commitment to equity and justice, and our partnership with the Legislature to correct the policies and practices that have contributed to a disproportionate pollution burden upon low income and minority communities, DEP is creating a new regulatory framework,” Commissioner LaTourette said in a press statement. “Our rulemaking process is moving expediently, but we must pursue this important work carefully. Critical to our success is open engagement with all stakeholders – residents, advocates, local officials, and the regulated community. In the meantime, DEP can and will better utilize its existing tools to promote a greater degree of environmental justice, and this Order will help us do so.”

New Jersey Environmental Justice Law

As discussed in greater detail in prior articles, the state’s historic Environmental Justice Law (EJ Law)aims to protect urban, minority and low-income communities burdened with excessive and disproportionate exposure to pollution via power plants, trash incinerators and sewage-treatment plants. Specifically, entities seeking to build a new facility, or expand an existing facility, located in a “overburdened community,” will be required to meet certain additional requirements before they can obtain the permit. Those requirements include preparing an environmental justice impact statement that assesses the environmental impact and associated public health risks of the proposed new or expanded facility and conducting a public hearing in the overburdened community.

Under the new law, the NJDEP is required to deny a permit for a new facility upon a finding that approval of the permit, as proposed, would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors that are higher than those borne by other communities within the State, county, or other geographic unit of analysis. 

An “overburdened community,” as defined by the law, is any census block group, as determined in accordance with the most recent United States Census, in which: 

• At least 35 percent of the households qualify as low-income households (at or below twice the poverty threshold as determined by the United States Census Bureau); 
• At least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or
• At least 40 percent of the households have limited English proficiency (without an adult that speaks English “very well” according to the United States Census Bureau). 

The NJDEP initiated a public process for development of the EJ rules following the law’s enactment last September. According to the agency, it expects to propose regulations this year for formal public comment and adopt the rules as early as spring 2022.

Administrative Order 2021-25

In the meantime, the NJDEP issued Order 2021-25 to make it clear that it plans to “utilize the fullest extent of its existing legal authority to further the intent and direction of the EJ Law to ensure meaningful public engagement and the implementation of feasible conditions to avoid or reduce contributions to existing public health and environmental stressors in overburdened communities while rulemaking is ongoing.”

AO 2021-25 sets the following requirements:

• Extends public comment periods to at least 60 days, with a potential extension for an additional 30 day period upon the written request of a member(s) of the overburdened community;
• Require a mandatory public hearing in a manner intended to maximize participation of individuals within the overburdened community;
• During the extended public comment period and public hearing, encourage individuals to provide information regarding existing conditions within the overburdened community and potential facility-wide environmental and public health stressors that could result in adverse impacts in the event of an approval;
• Require the applicant to respond to and address the concerns raised by individuals in the overburdened community and to conduct any additional analysis related thereto that the Department deems necessary for its review; 
• Strongly encourage each applicant to engage directly with individuals in the overburdened community in advance of, and in addition to, formal public comment, including providing relevant information related to facility-wide impacts; and
• Where permits or approvals may be issued, the NJDEP will apply such special conditions as may be necessary to avoid or minimize environmental or public health stressors.

The Administrative Order takes effect immediately and applies to all permit applications for facilities in overburdened communities, as each are defined under the EJ Law, that have open or unexpired comment periods.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.