The New Jersey Appellate Division issued a recent opinion upholding the New Jersey Department of Environmental Protection's (NJDEP) adoption of Environmental Justice Rules (EJ Rules) under the state's Environmental Justice Law (EJ Law). Emphasizing the legislative intent behind the EJ Law, the court rejected appellants' challenges that the EJ Rules exceeded the authority granted to the NJDEP under the EJ Law, that the EJ Rules were vague, and that the EJ Rules were arbitrary and capricious.
What You Need to Know:
- Broad Legislative Purpose: The decision highlights that the scope of the NJDEP's authority, and the deference given to the exercise of that authority, is broad with respect to a statute with a wide-ranging legislative purpose, such as the EJ Law.
- Comments: The court's analysis relied heavily on the NJDEP's response to public comments, highlighting the importance of getting involved at this stage.
- Judicial Deference: The decision reinforces the principle of substantial judicial deference to agency interpretations of their own regulations in New Jersey.
The New Jersey Appellate Division issued a recent opinion upholding the New Jersey Department of Environmental Protection's (NJDEP) adoption of Environmental Justice Rules (EJ Rules) under the state's Environmental Justice Law (EJ Law). Emphasizing the legislative intent behind the EJ Law, the court rejected appellants' challenges that the EJ Rules exceeded the authority granted to the NJDEP under the EJ Law, that the EJ Rules were vague, and that the EJ Rules were arbitrary and capricious.
As background, the EJ Law requires NJDEP to deny a permit for a new facility in an overburdened community if approval of that permit, as proposed, would "cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities." The EJ Law provides a limited exception for instances when "the [NJDEP] determines that a new facility will serve a compelling public interest in the community." The EJ Law also allows the NJDEP to place conditions on the permits of both new facilities and of facilities seeking expansion or modification aimed at reducing environmental and public health impacts in the State's overburdened communities. The EJ Law defines overburdened communities (OBCs) as communities with a certain percentage of households qualifying as low-income, minority, or with limited English proficiency, as determined by local census blocks.
The NJDEP adopted the EJ Rules to implement the EJ Law, largely through defining terms left undefined by the EJ Law itself. The case before the court involved a challenge to several of the definitions in the EJ Rules, including "new facility" and "compelling public interest." Ultimately, the court upheld NJDEP's expansive definition of "new facility" which includes "a change in use of an existing facility" or an existing facility that has been operating without "a valid approved registration or permit." And the court upheld NJDEP's definition of "compelling public interest" that excluded the economic benefits of a new facility in the "compelling public interest" analysis. In rejecting both challenges, the court emphasized that the legislative purpose behind the EJ Law aligned with the Department's stated purpose behind its definitions in the EJ Rules. The court also upheld the NJDEP's decision to extend the EJ Rules to facilities in zero-population census blocks adjacent to OBCs. The court reasoned the EJ Rules were not unreasonable given the EJ Law's direction that the statute applies to a facility located, "in part," in an OBC and where the pertinent assessment was of environmental stressors "located in or affecting" the OBC. Emphasizing, again, the legislative purpose behind the EJ Law, the court upheld the NJDEP's authority to require, as a condition of approval of a permit, both onsite and offsite control measures.
Next, the court upheld the NJDEP's new process aimed at addressing air pollution-specific control measures and permit conditions for approvals relating to new major sources and expansions of existing major sources. The court rejected the argument that the process conflicted with other laws. The court also rejected the argument that the NJDEP exceeded its authority in adopting the new process. Again, the court pointed to the EJ Law's intent to reduce emissions in OBCs to correct the "historical injustice" of environmental inequality and the broad authority granted to the NJDEP under the EJ Law. Finally, the court concluded that, in promulgating the EJ Rules, the NJDEP provided enough information in its impact analysis to comply with the state's Administrative Procedure Act. In sum, the court rejected each challenge to the EJ Rules and highlighted the expansive legislative purpose of the EJ Law in upholding the NJDEP's rulemaking decisions.
