New Jersey Enacts Landmark Environmental Justice Law
A New Jersey environmental justice bill that would give significant weight to environmental justice factors in permitting decisions for industrial projects became law on Friday. This new environmental justice law may affect new permits and renewals for facilities in New Jersey, with particularly significant implications for the State’s waste and recycling industry.
On September 18, 2020, New Jersey Governor Philip D. Murphy signed legislation (S-232) aimed at limiting new pollution sources within so-called “overburdened communities” by requiring the New Jersey Department of Environmental Protection (NJDEP) to evaluate the environmental and public health impacts of certain facilities on overburdened communities when reviewing certain permit applications.
Which communities will be affected by the new law?
The legislation defines “overburdened communities” as communities with a certain percentage of households qualifying as low-income, minority, or with limited English proficiency, as determined by local census blocks. Within 120 days of September 18, 2020, NJDEP must publish and maintain on its website a list of “overburdened communities” in the State and then update the list at least once every two years.
What “facilities” are included?
Under the new law, NJDEP must consider the cumulative environmental and public health impacts of the following facilities on overburdened communities 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).
What “permits” are potentially impacted?
Impacted permits include individual permits, registrations, and licenses issued by NJDEP to a facility, as specified above, under a variety of State laws. Two exceptions from this expansive list of permits are: (1) any authorization or approval necessary to perform a remediation, as defined pursuant to New Jersey’s Brownfield and Contaminated Site Remediation Act; or (2) any authorization or approval required for a minor modification of a facility’s major source permit for activities or improvements that do not increase emissions.
What does the law require of a permit applicant?
Pursuant to the new law, a permit applicant must now prepare an environmental justice impact statement that
assesses the potential environmental and public health stressors associated with the proposed new or expanded facility, or with the existing major source, as applicable, including any adverse environmental or public health stressors that cannot be avoided if the permit is granted, and the environmental or public health stressors already borne by the overburdened community as a result of existing conditions located in or affecting the overburdened community.
The permit applicant must also organize and conduct a public hearing in the overburdened community.
Why is the new law significant?
This law makes New Jersey the first state in the country to require mandatory permit denials if an environmental justice analysis determines a new facility will have a disproportionately negative impact on overburdened communities.
The legislative history concludes that New Jersey’s low-income communities and communities of color have, historically, been subject to a high number of environmental and public health stressors, including pollution from numerous industrial, commercial, and governmental facilities located in those communities. The law has been hailed by environmental justice activists as a tool for impacted communities to fight new power plants, incinerators, and manufacturing facilities within their borders. Nevertheless, critics of the new law warn that it will increase costs of permitting and facility expansion and delay projects, ultimately driving investment in manufacturing out of state and stifling job creation where economic growth is most critical.