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NJ ENVIRONMENTAL JUSTICE LAW UPDATE: NJDEP Required to Consider Environmental Justice Impacts in Permitting Decisions While Regulations Are Being Developed

Posted: 09/28/2021
Services: Environmental

On September 22, 2021, New Jersey Commissioner of Environmental Protection Shawn M. LaTourette issued an Administrative Order (AO 2021-25) setting new environmental justice-focused requirements for the New Jersey Department of Environmental Protection (NJDEP) to consider in assessing permit applications for facilities located in or proposed to be located in overburdened communities. These new requirements are a stopgap measure, pending NJDEP’s promulgation of regulations to implement the landmark Environmental Justice Law, N.J.S.A. 13:1D-157 (“EJ Law”).  

What You Need to Know:

  • NJDEP is in the process of developing regulations to implement New Jersey’s Environmental Justice Law (2020).  These regulations are expected to be proposed in late 2021 and formally adopted in 2022.
  • New Jersey is not waiting to implement the Environmental Justice Law’s requirements. 
  • Administrative Order 2021-25 applies to all facilities subject to the Environmental Justice Law that seek covered permits in overburdened communities, as mapped by the NJDEP.

​The EJ Law, signed by Governor Murphy in September 2020, 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. The rulemaking process is underway, and NJDEP expects to propose regulations this fall for formal public comment, with rules adopted in the second half of 2022.

In the interim, AO 2021-25, which takes effect immediately, 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. Specifically, AO 2021-25 identifies 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;
  • Requires a mandatory public hearing in a manner intended to maximize participation of individuals within the overburdened community;
  • Encourages individuals to provide information during the extended public comment period and public hearing concerning 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;
  • Requires 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 NJDEP deems necessary for its review;
  • Encourages 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
  • Enables the NJDEP to apply special permit conditions as may be necessary to avoid or minimize environmental or public health stressors.