What to Know About NJDEP’s Latest Environmental Justice Guidance

NJDEP has issued new guidance mandating that state agency decisions be guided by environmental justice principles…

Just 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.”

Murphy Administration Prioritizing Environmental Justice

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. 

NJDEP Environmental Justice Guidance

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:

• Apply principles for furthering the promise of environmental justice. These principles include: cultivate awareness consistently; empower communities to participate in decision making processes; and plan for and embrace change. S
• Launch the Environmental Justice Interagency Council (EJIC). The EJIC will convene to help agencies adopt the principles; complete Executive Branch initial assessments; participate in workshops and trainings; and create Executive Branch action plans. EJIC will also oversee the development of a transparent process for setting milestones and regular evaluation of progress in implementing the action plans.
• Complete Executive Branch initial assessments and Executive Branch action plans. Executive Branch initial assessments will help the NJDEP identify our existing practices and procedures throughout state government, as well as shape the workshops, trainings, and collaborations that should take place. The action plans will enable the Executive Branch to outline actions and set milestones to measurably improve conditions in communities of concern through their programs and activities.

What’s Next?

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 questions, please contact us

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.