New Jersey’s Department of Environmental Protection (“NJDEP”) finalized its long-awaited Environmental Justice Rules (“EJ Rules”) by publishing them in the New Jersey Register on April 17, 2023. The EJ Rules implement New Jersey’s landmark Environmental Justice Law.
In a tandem action, the White House issued an Environmental Justice Executive Order on April 21, 2023 titled Revitalizing Our Nation’s Commitment to Environmental Justice For All (“EJ EO”).
What You Need to Know About the New Jersey Environmental Justice Program
- On September 18, 2020, Governor Phil Murphy signed the New Jersey Environmental Justice Law, N.J.S.A. 13:1D-157 (“EJ Law”), which requires the New Jersey Department of Environmental Protection (“NJDEP”) to evaluate environmental and public health impacts of certain facilities on overburdened communities when reviewing certain applications.
- The EJ Law is the first in the nation to require permit denials if an environmental justice analysis determines a new facility will have a disproportionately negative impact on overburdened communities.
- On June 6, 2022, NJDEP published draft rules for implementation of the EJ Law.
- On April 17, 2023, NJDEP published the final rule for implementation of the EJ Law. The final rules contain no material changes from the draft rules.
- The “effective date” of the implementing regulations is April 17, 2023, and that date is used for determining what is considered a “new facility.”
- The new regulation will be codified at N.J.A.C. 7:1C-1.1 to 10.3.
As discussed in a prior Saul Ewing Client Alert, the EJ Law authorizes the NJDEP to deny or condition certain permits based on an assessment of a “facility’s” contribution to environmental and public health impacts in the State’s “overburdened communities” (OBCs). The EJ Law defines 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.
Under the EJ Rules, when proposing to locate certain pollution-generating facilities in an OBC, an applicant must prepare an environmental justice impact statement (EJIS) and engage with members of the community by holding a public hearing. The applicant must collect public comments and respond to those comments in writing. NJDEP will evaluate whether pollution from the proposed facility would cause or contribute to environmental and public health stressors at disproportionate levels.
The EJ Rules require permit applicants to avoid and minimize environmental and public health stressors, including by means of additional pollution control technology. Where disproportionate impacts are not avoidable, certain new facilities could be limited. If NJDEP determines that the proposed new facility cannot avoid a disproportionate impact, it shall either deny the application or find that the facility will serve a compelling public interest in the OBC and authorize the applicant to proceed with the imposition of conditions set by the Department.
Likewise, existing facilities could be subject to additional permit conditions to reduce environmental and public health stressors affecting the community. Subchapter 8 sets forth the requirements for an applicant for a permit for a major facility, as defined at N.J.A.C. 7:27-22.1, that submits an application for a renewal of its operating permit required pursuant to N.J.A.C. 7:27-22 and is located in an OBC. Where the control measures proposed by the expanding or renewing applicant cannot avoid a disproportionate impact, the Department shall impose “appropriate conditions ... as necessary to avoid or minimize contributions to adverse environmental and public health stressors, reduce adverse environmental and public health stressors, or provide a net environmental benefit in the overburdened community.”
NJDEP must consider the cumulative environmental and public health impacts of the following facilities on OBCs when reviewing certain permit applications:
- major sources of air pollution (i.e., gas-fired power plants and cogeneration facilities);
- resource recovery facilities or incinerators;
- sludge processing facilities;
- large sewage treatment plants (capacity of more than 50 million gallons per day);
- transfer stations or other solid waste facilities;
- scrap metal facilities;
- landfills; or
- medical waste incinerators (except those attendant to a hospital or university).
NJDEP’s Environmental Justice Mapping, Assessment and Protection tool (EJMAP) can be utilized to locate overburdened communities, identify covered facilities within those communities, and analyze relative environmental and public health stressors impacting those communities.
What You Need to Know About the White House Environmental Justice Executive Order
Building on what it refers to as the foundational efforts of the Clinton administration’s Executive Order 12898, the Biden administration’s EJ EO is aimed at elevating the issue of environmental justice in federal policy and permitting. Unlike New Jersey, the EJ EO has no statutory framework and may be challenged for that reason.
Key considerations of the EJ EO:
- applies to all federal agencies
- defines EJ more expansively than the current USEPA definition
- creates the White House Office of Environmental Justice within the Council on Environmental Quality
- directs each member of the Environmental Justice Interagency Council to designate an environmental justice officer
- reiterates the obligation to consider environmental justice issues when performing cumulative impact analysis under NEPA, i.e., impacts from the proposed action in conjunction with other pollution sources in the EJ community
Two key provisions of the EJ EO are contained in Section 3, subsections (vi) and (vii), requiring federal agencies to:
(vi) evaluate relevant legal authorities and, where available and appropriate, consider adopting or requiring measures to avoid, minimize, or mitigate disproportionate and adverse human health and environmental effects (including risks) and hazards of Federal activities on communities with environmental justice concerns, to the maximum extent practicable, and to address any contribution of such Federal activities to adverse effects -- including cumulative impacts of environmental and other burdens -- already experienced by such communities;
(vii) provide opportunities for the meaningful engagement of persons and communities with environmental justice concerns who are potentially affected by Federal activities, including by:
. . .
(D) providing technical assistance, tools, and resources to assist in facilitating meaningful and informed public participation, whenever practicable and appropriate; . . .
For questions on either action, please contact the authors.
