New Jersey Passes Significant Environmental Justice Legislation

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Troutman Pepper

Environmental justice has received greater attention in 2020, both because it is an election year, but also because of the increased focus on racial inequality since the killing of George Floyd in May 2020. Many states are considering legislation on this topic, but on August 27, 2020, New Jersey passed a significant environmental justice bill, the first to require denial of a permit on environmental justice ground.

The bill requires water, waste, or air permit applicants located in “overburdened communities” to include an environmental justice impact statement. Significantly, the New Jersey Department of Environmental Protection must deny the permit if it determines that the facility, coupled with other environmental stressors, will “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 of analysis,” unless the facility serves “a compelling public interest in the community where it is to be located.” This is a significant departure from traditional environmental justice provisions, which require an evaluation of impacts and a public participation process, but do not go so far as to require permit denial based on the evaluation results.

The requirements of this legislation apply to major air pollution sources, resource recovery facilities or incinerators, sludge processing facilities, sewage treatment plants with a capacity of greater than 50 million gallons per day, solid waste transfer stations and recycling facilities intending to receive at least 100 tons of recyclable material per day, landfills, and medical waste incinerators. It applies not only to new facilities but also to existing facilities undergoing expansion or that renew their permits.

The legislation defines an “overburdened community” as a census block where at least 35% of the population is low, at least 40% of residents are a minority or tribal members, or at least 40% of households have limited English proficiency. The required environmental justice impact statement must assess potential impacts to environmental and public health stressors. Additionally, applicants must hold a public hearing in the overburdened community. An application is not considered complete until the required impact statement is provided and a public hearing takes place.

The bill will become effective immediately upon the Governor’s signature. DEP will have 120 days from the effective date to publish and maintain a list of overburdened communities on its website. The list must be updated every two years. But the core requirement of the bill – submittal of an environmental justice impact statement and DEP’s review to approve or deny the application – becomes effective only after the agency adopts rules and regulations implementing this requirement. Unlike the case with the overburdened communities list, the bill does not set a timeframe for when DEP should adopt these regulations.

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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