
Daniel T. McKillop
Partner
201-896-7115 dmckillop@sh-law.comFirm Insights
Author: Daniel T. McKillop
Date: October 15, 2021
Partner
201-896-7115 dmckillop@sh-law.comThe 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.”
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:
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.
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:
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 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.
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