Progressive New Jersey: The Garden State continues its environmental leadership by enacting forward-looking programs

(ACOEL) | American College of Environmental Lawyers
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New Jersey has been a leader in addressing the most significant environmental problems of the day.  Decades ago, for example, four years before the enactment of CERCLA, the state’s Spill Compensation and Control Act prohibited the illegal disposal of hazardous waste, established a fund to enable the state to remediate orphan sites, and provided the legal tools to bring enforcement actions against parties responsible for discharging hazardous substances.  Of special significance in that earlier era was the adoption of the Environmental Cleanup Responsibility Act (ECRA), now called the Industrial Site Recovery Act (ISRA).  Unique in the nation both then and now, ECRA/ISRA requires an environmental investigation and, if necessary, cleanup at certain industrial sites whenever they are sold or when operations cease.  ECRA/ISRA has facilitated tens of thousands of private party remediations at sites both large and small.  And although formally created by Congress, a state agency administers the Pinelands National Reserve, the country’s first national reserve.  Encompassing 1.1 million acres, fully 22% of the land mass of New Jersey, the Pinelands contains the largest body of open space on the eastern seaboard between Boston and Richmond.  It is home to dozens of rare and endangered plant and animal species, along with an estimated 17 trillion gallons of groundwater available for future use.

Among the geographically smallest states, with only a modest-sized population and lacking in a major metropolitan area, New Jersey’s leadership in environmental protection might be regarded as surprising.  Yet, the sources of the state’s environmental activism are readily apparent.  New Jersey has a legacy of industrial sites, and their cleanup enables the redevelopment of brownfields.  The state is the most densely populated in the nation and is nearing ‘buildout,’ thus necessitating the preservation of as much remaining open space as possible.   

Recently developments illustrate that New Jersey continues its vanguard role in environmental protection.  For example, earlier this year the state enacted a series of laws addressing the historic problem of lead contamination.  The legislation requires the periodic inspection and, as necessary, remediation of certain older residential properties for lead, a toxin that neurologically impairs thousands of children each year exposed to lead-based paint. The law also addresses lead pipes, which are a significant source of exposure to lead contamination, especially in older and largely low income urban areas.  It obligates public community water systems to inventory and replace all lead service lines within ten years, becoming the first state to establish a hard deadline for doing so.   

The Garden State also has adopted ground-breaking legislation to address environmental justice, a problem created by the confluence of contaminated industrial facilities and low-income neighborhoods.  While the federal government and several other states have promulgated various enactments addressing this subject, New Jersey’s law is perhaps the most far-reaching.  Legislation enacted in 2020 requires performance of an environmental justice impact statement to evaluate cumulative public health and environmental impacts when the state reviews permit applications for certain facilities proposed to be located in “overburdened communities,” which are defined as having a high percentage of residents who either are minorities, or have low income or limited English proficiency.  The proposed facilities requiring heightened review include gas-fired power plants, cogeneration and resource recovery facilities, large sewerage treatment plants, transfer stations, solid waste facilities, and incinerators.  Significantly, operating permits may be denied, or permit conditions imposed, if the analysis determines that the proposed facility will have a disproportionately negative impact, i.e. impose a higher cumulative stress on public health and the environment than what exists in other communities.

New Jersey also is moving forward aggressively to develop alternative energy sources.  Earlier this year, the Board of Public Utilities approved two additional off-shore wind projects, bringing to three the number of these facilities.  Collectively, these projects are expected to generate 3,800 megawatts of electricity, enough to power over one million homes.  According to the state’s Energy Master Plan, which calls for use of 100% clean energy by 2050, these three facilities represent one half of the state’s off-shore wind capacity planned to be operational by 2035. New Jersey’s approved offshore wind projects together constitute the largest in the nation to date. 

Perhaps as significant, the state is helping develop a facility to manufacture wind turbines along the Delaware River in Camden.  And earlier this month, ground was broken on the Wind Port, another large site located on an artificial island in the Delaware where the turbines will be assembled and shipped to other off-shore wind projects.  These first-in-the-nation projects aim to make the state a hub in the nation’s offshore wind industry.

To be sure, New Jersey still faces significant environmental problems.  A recent study found that the state’s average temperature is warming faster than any other state: the state’s average temperature has risen by more than 2.5 degrees in the last century, while the national average increase has been below two degrees.  Flooding earlier this month from Hurricane Ida caused more fatalities in New Jersey than in any other state.  And a recent report authored by the Army Corps of Engineers found that sea level is higher at the beloved Jersey Shore  — an area encompassing 3,500 linear miles  — because the state’s shoreline is “sinking” due to a geological “see-saw” effect related to the retreat of glaciers in another era of the State’s history, and because of  the warming, and thus slowing, of the Gulf Stream, which now allows more water to reach the shoreline. 

So for as much as New Jersey has accomplished, significant environmental challenges remain. And the largest of those – climate change – cannot be addressed by New Jersey alone.  Here’s hoping the state can continue to lead the rest of America to sensible solutions before inundation replaces pollution as the environmental issue of our times.

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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