New Jersey Governor Signs Historic Environmental Justice Legislation

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[author: Debbie Mans*]

New Jersey Governor Phil Murphy recently signed a historic environmental justice bill to protect overburdened communities from pollutants. The law requires the New Jersey Department of Environmental Protection (NJDEP) to deny permits for certain new facilities “upon a finding that approval of the permit…would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit analysis…”. NJDEP may apply conditions to a permit for the expansion of an existing facility or the renewal of an existing facility’s major source permit based on the same review and finding.

This law was well over a decade in the making, after having stalled for several years in the New Jersey Legislature. A combination of individual leadership in the legislature, early and strong support from Governor Murphy, a determined advocacy campaign lead by environmental justice advocates, and a general sense that it was well past time to address environmental racism led to its passage.

Covered facilities include (1) major source of air pollution; (2) resource recovery facility or incinerator; (3) sludge processing facility, combustor or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons a day; (5) transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material a day; (6) scrap metal facility; (7) landfill; or (8) medical waste incinerator (except when attendant to a hospital or university and processing self-generated waste).

If this facility is located in whole or in part in an “overburdened community” then it must prepare an environmental justice impact statement and hold a public hearing in the community. There are requirements for enhanced public notice, including use of a local non-English newspaper.

An “overburdened community” is defined as any census block group in which (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency.

The mapping of these areas can be found in Appendix A of “Furthering the Promise: A Guidance Document fo Advancing Environmental Justice Across State Government.”

The law does not become operative until adoption of rules and regulations to implement the provisions of the law. There is no timeframe provided in the law for NJDEP to accomplish this and it will likely take more than a year due to several key items needing to be hammered out during the rulemaking process.

This includes how a new facility could qualify as serving a “compelling public need,” allowing NJDEP to grant a permit that imposes conditions, rather than denying the permit. Additionally, the law leaves to rulemaking or guidance the process and geographic scope of determining whether approval of the permit, together with other environmental or public health stressors affecting the community, would cause or contribute to adverse cumulative or public health stressors that are higher than those borne by other communities within the State, county or other geographic unit analysis. This is an important issue, because comparing the Ironbound section of Newark to an adjacent neighborhood can result in a different outcome than comparing it to a neighborhood in a different county or region of New Jersey.

NJDEP has begun stakeholder conversations on the proposed rulemaking. To find out more, please see the presentation from the October 22, 2020, stakeholder session and video recording of the session. For more information on NJDEP’s Office of Environmental Justice and all their programming visit their website.

*Debbie Mans is the former Deputy Commissioner at the New Jersey Department of Environmental Protection

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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