
John M. Scagnelli
Partner
201-896-4100 jscagnelli@sh-law.comFirm Insights
Author: John M. Scagnelli
Date: October 19, 2020
Partner
201-896-4100 jscagnelli@sh-law.comJust days after New Jersey enacted landmark environmental justice legislation, the New Jersey Department of Environmental Protection (NJDEP) has issued new guidance mandating that state agency decisions be guided by environmental justice principles.
“New Jersey continues to lead the nation in its strides to promote environmental justice,” NJDEP Commissioner Catherine R. McCabe said in a press statement. “While the state’s new environmental justice law requires government to look outward at certain entities we regulate to help avoid disproportionate impacts on EJ communities, this Guidance requires government to look inward—at our policies, protocols, and practices, to imbue the principles of environmental justice into government decision-making processes. When government sews the principles of environmental justice into its work, we can—over time—deliver on the promise of lived equality for all New Jerseyans.”
As detailed in prior articles, the Murphy Administration has taken numerous steps to elevate the importance of environmental justice. Its actions to address pollution and environmental hazards in minority and lower-income communities include launching an environmental justice initiative, creating an Environmental Justice Interagency Council, and bringing enforcement actions targeting polluters in minority and lower-income communities.
On September 18, 2020, Gov. Murphy signed the nation’s strongest environmental justice legislation into law. P.L.2020, c.92 requires entities seeking to build certain facilities, such as power plants, trash incinerators or sewage-treatment plants, or expand an existing facility, located in an “overburdened community” to meet certain additional requirements before they could obtain an NJDEP permit. The law defines an overburdened community as any community where 35 percent of the households qualify as low-income according to the U.S. Census, at least 40 percent of the residents identify as minority, or at least 40 percent of the households have limited English proficiency.
The NJDEP’s latest action follows Governor Murphy’s Executive Order 23, which directed the Agency, in consultation with the Department of Law and Public Safety and other relevant departments, to take the lead in developing guidance for all Executive branch departments and agencies for the consideration of environmental justice in implementing their statutory and regulatory responsibilities. The Executive Order further directed that, following publication of final guidance, all Executive branch departments and agencies must consider the issue of environmental justice and make evaluations and assessments in accordance with that guidance, to the extent not inconsistent with law.
In accordance with Executive Order 23, the NJDEP guidance, Furthering the Promise: A Guidance Document for Advancing Environmental Justice Across State Government, directs executive branch departments and agencies to apply the principles of environmental justice to their operations. It also mandates that they participate in the newly-formed Environmental Justice Inter-Agency Council and create assessments and action plans to improve the agencies’ effects on environmental justice communities.
As set forth in the guidance, environmental justice communities are identified by three criteria: presence in a community of concern; the presence of disproportionate environmental and public health stressors; and the absence or lack of environmental and public health benefits. The NJDEP plans to address the challenges faced by such communities and advance environmental justice across the Executive Branch in three ways:
The NJDEP plans to host its inaugural EJIC meeting in November 2020. Thereafter, departments and agencies must begin preparing initial assessments and outlining Executive Branch action plans. The NJDEP will complete its initial assessment as an example for all of the Executive Branch before the lifting of the COVID-19 public health emergency. Initial assessments for the other agencies will be due 60 days after the COVID-19 public health emergency is lifted.
As state agencies begin to implement the NJDEP’s environmental justice guidance, property owners and others that may be responsible for pollution and other environmental hazards in such communities should be prepared for increased scrutiny. Given that the costs of remediation and related enforcement penalties, businesses should also be proactive and contact an experienced environmental law attorney with any concerns.
If you have any questions or if you would like to discuss the matter further, please contact me, John Scagnelli, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
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