Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

NJDEP Begins Implementing Environmental Justice Law

Author: Daniel T. McKillop

Date: October 15, 2021

Key Contacts

Back

The New Jersey Department of Environmental Protection (NJDEP) is wasting no time in implementing the state’s environmental justice initiatives.

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
When a Child Turns 18: The Gap in Your Family’s Estate Plan post image

When a Child Turns 18: The Gap in Your Family’s Estate Plan

Once a child turns 18, parents lose the automatic legal authority to make medical and financial decisions on their behalf, even if the child still lives at home or remains on the family’s insurance. Three documents close that gap: a durable power of attorney, a health care proxy or directive, and a HIPAA authorization. For […]

Author: George McGowan

Link to post with title - "When a Child Turns 18: The Gap in Your Family’s Estate Plan"
Business Mediation: An Overview and Practical Tips post image

Business Mediation: An Overview and Practical Tips

Business mediation is a confidential, voluntary process in which a neutral third party helps companies negotiate a resolution to a commercial dispute without going to trial. Because working with a mediator is very different from litigating in the courtroom, it is important to understand how commercial mediation works, when it makes sense for your dispute, […]

Author: Paul Grossman

Link to post with title - "Business Mediation: An Overview and Practical Tips"
Top 5 Causes Leading to Construction Defect Litigation post image

Top 5 Causes Leading to Construction Defect Litigation

The five most common causes of construction defect litigation are design defects, substandard materials, workmanship defects, code violations, and subsurface defects. Because these flaws can compromise a building’s integrity, functionality, or safety, they frequently lead to disputes involving multiple parties and high financial stakes. Key takeaways: What is Construction Defect Litigation? Construction litigation is complex, […]

Author: Paul Grossman

Link to post with title - "Top 5 Causes Leading to Construction Defect Litigation"
How to Protect Your New Jersey Business When Going through a Divorce post image

How to Protect Your New Jersey Business When Going through a Divorce

The most effective ways to protect your business in a divorce are put in place before one begins: a prenuptial or postnuptial agreement, clean separation of business and personal finances, and divorce contingencies built into your operating or buy-sell agreements. If divorce is already underway, the priorities shift to establishing how the business is classified […]

Author: Jay McDaniel

Link to post with title - "How to Protect Your New Jersey Business When Going through a Divorce"
10 Common Issues in Franchise Disputes post image

10 Common Issues in Franchise Disputes

The most common franchise disputes involve breach of contract, franchise termination and non-renewal, intellectual property rights, territorial encroachment, royalty and fee payments, franchisor support obligations, and violations of state franchise laws such as the New Jersey Franchise Practices Act. Franchisors and franchisees can often resolve these conflicts by providing written notice detailing the dispute and […]

Author: Paul Grossman

Link to post with title - "10 Common Issues in Franchise Disputes"
Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together post image

Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together

New Jersey businesses must manage legal and reputational risk together because modern disputes play out on two fronts at once: the legal proceeding itself and the court of public opinion, where customers, employees, investors, and business partners often reach conclusions long before a judge or jury has had the opportunity to evaluate the facts. Success […]

Author: Sean M. Pena

Link to post with title - "Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!