[co-authors: Alicia Arrington and Aspen Ono]*
On June 6, the New Jersey Department of Environmental Protection (DEP) officially published the highly-anticipated proposed implementing rules of the state’s Environmental Justice Law, N.J.S.A. 13:1D-157. The statute requires environmental justice-specific analyses for enumerated facilities that are seeking DEP approval for new, renewal, or expansion permits where the facility is located in an "overburdened community," defined as any Census block group with low-income, minority, or non-English speaking populations exceeding specified thresholds (see our earlier coverage of the law’s passage here). The proposed rules, currently open for public comment until September 4, detail how DEP will implement the legislation.
The New Jersey law is arguably the most far-reaching state environmental justice law in the country, taking unprecedented action to require consideration of impacts on overburdened communities in the permitting process. The proposed rules also take important steps to develop actionable, practical approaches to assessing cumulative impacts and disproportionate effects on overburdened communities – two concepts that have presented longstanding challenges for measurement, even for the most seasoned environmental justice practitioners. Given that New Jersey is taking the lead for state action on environmental justice in permitting, the future of the proposed rules will likely inform similar activity elsewhere – including New York’s A2013, an environmental justice permitting bill currently awaiting Governor Hochul’s signature.
1. Procedural Roadmap – The DEP-prepared summary of the proposed rules includes a six-step procedural overview roadmap describing how the regulations would work. The roadmap walks through the required EJ evaluation, beginning with the initial screen (Step 1), preparing an Environmental Justice Impact Statement (EJIS) (Step 2), obtaining DEP’s authorization to proceed with the permit application (Step 3), conducting the required public engagement (Step 4), and DEP review of the required information and final decision (Steps 5 and 6, respectively).
The procedural overview should be helpful to applicants subject to the law as they plan permitting efforts and prepare to navigate the new regulations. DEP’s detailed proposed rules provide welcome clarity for regulated entities with facilities in overburdened communities so that they might anticipate what this unprecedented process may entail and ensure greater predictability in the permitting process.
2. Facility Modeling – Under the proposed rules, an applicant filing a covered permit must demonstrate that the facility would not disproportionately impact an overburdened community by modeling the facility’s operational impacts. The applicant conducts facility modeling at Step 1 of the procedural roadmap to analyze the “environmental and public health stressors” affecting the overburdened community. The proposed rules define “environmental and public health stressors” as “sources of environmental pollution . . . or conditions that may cause potential public health impacts.” The appendix to the proposed rules helpfully enumerates the specific pollution sources, health concerns, and the relevant data sources used to conduct this analysis (examples include known contaminated sites, impaired surface waters, and potential lead exposure, among others). If a new or proposed expanded facility or facility seeking a renewal permit cannot avoid disproportionate impacts (i.e., creates “adverse cumulative stressors” or contributes to adverse environmental and public health stressors in a community already subject to negative cumulative stressors), heightened DEP scrutiny of the permit is triggered, including potentially denying permits for new facilities or approving, with conditions, permit renewals or facility expansions.
By setting forth specific environmental and public health stressors that must be evaluated, the proposed rules introduce a particular methodology and level of certainty that is often absent in this emerging field. Instead of identifying a method of assessing environmental justice impacts that would support DEP’s review, the proposed rules provide permit applicants with a clear set of stressors they must analyze to assess the disproportionate effects.
3. Compelling Public Interest – Where a proposed new facility cannot avoid a disproportionate impact, DEP must deny the permit unless it would serve a “compelling public interest” in the overburdened community. This standard is met if the facility (1) primarily serves an essential environmental, health, or safety need of overburdened community members, (2) is necessary to serve the essential environmental, health, or safety need, and (3) no other reasonably available means exist to meet this need. DEP will consider the relevant overburdened community members’ feedback in making this determination.
Crucially, under the proposed rules, “the economic benefits of the proposed new facility shall not be considered in determining whether it serves a compelling public interest in an overburdened community.” This limitation is critical because economic benefits – from job growth to increased economic activity – are frequently used as countervailing arguments related to adverse impacts of permitted facilities on overburdened communities.
Regulated entities should carefully review the proposed rules and consider submitting feedback to DEP, which is accepting public comments until September 4, 2022. Additionally, DEP plans to hold public hearings on July 11, July 13, July 27, and July 28. These are useful opportunities to obtain further information about the proposed rules directly from DEP and inform what will likely be a model for other similar environmental justice permitting laws across the country.
* Summer Associates