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New Jersey Environmental Justice Initiative Reviews and Takeaways
It has been more than four years since the New Jersey Legislature enacted the Environmental Justice Law, three years since the New Jersey Department of Environmental Protection (NJDEP) issued its administrative order establishing an interim environmental justice review process under pre-Environmental Justice Law authority, and almost two years since NJDEP finalized its environmental justice regulations, codified at N.J.A.C. 7:1C (EJ Rules). In that time, there have been more than seventy-five submissions to NJDEP under the administrative order and approximately seven under the EJ Rules. To date, NJDEP has only issued one environmental justice law decision, related to the Passaic Valley Sewerage Commission’s July 2, 2021 application to amend its Title V operating permit to authorize the construction and operation of an on-site emergency standby power generating facility.
Here are takeaways that can be gleaned from letters issued by NJDEP to date and the environmental justice law decision:
- Applicants should prepare for an extended timeline for permit issuance. It took NJDEP approximately three years from the date that the Passaic Valley Sewerage Commission submitted a complete application to render its environmental justice law decision, which now clears the way for NJDEP to continue to review and issue the permit modification.
- Applicants should begin engaging the community as early as possible to address community concerns up front. NJDEP has required applicants to restart the environmental justice review process following substantive changes made to an application in response to community input, restarting the process and adding further delay.
- NJDEP has issued at least three deficiency notices to applicants who failed to strictly comply with the EJ Rules. For example, in one deficiency notice, NJDEP found that the environmental justice impact statement was technically deficient, in part because it failed to discuss the information required by the EJ Rules in the order presented in the EJ Rules. In another, NJDEP found that the public meeting held by an applicant failed to comply with the EJ Rules because virtual participants were unable to see the applicant’s presentation and had difficulty hearing the presenter and interpreter. Applicants should ensure that all EJ Rule requirements are met to avoid further delays.
- NJDEP imposed eleven special conditions in the environmental justice law decision for the Passaic Valley Sewerage Commission. These special conditions included, among others, providing advance notice to NJDEP and the Ironbound Community Corporation of certain specified events, decommissioning certain equipment, installing alternative energy sources, and submission of a semi-annual environmental justice compliance report. The decision specifies that any conditions imposed will apply not only to the immediate permit application, but to any permit or approval related to the facility. The authority for some of these conditions is not clear.
Additional environmental justice law decisions are likely to be forthcoming and may shed additional light on NJDEP’s implementation of the EJ Rules.
Separately, there are two appeals of the EJ Rules pending before the Superior Court of New Jersey, Appellate Division, one of which our firm is handling, challenging many aspects of the EJ Rules as beyond the scope of NJDEP’s statutory authority or as otherwise being arbitrary, capricious, and unreasonable. The appeals also challenge the EJ Rules and the Environmental Justice Mapping, Assessment and Protection Tool because they were promulgated in violation of the Administrative Procedure Act. The appeals have been fully briefed and are awaiting the scheduling of oral argument.
