New Jersey Environmental Justice: Issues to Watch in 2022
Environmental Justice Administrative Order
Just over a year after Governor Phil Murphy signed New Jersey’s Environmental Justice Law (EJ Law), the New Jersey Department of Environmental Protection (NJDEP) issued an administrative order on September 22, 2021 designed to implement an environmental justice review process until the EJ Law regulations can be adopted and go into effect. The order applies to facilities as defined in the EJ Law located in overburdened communities that seek authorizations covered under the EJ Law. Among other requirements, the order requires applicants to hold public hearings “consistent with” the EJ Law, establishes 60-day public comment periods for permit applications, “strongly encourages” applicants to engage directly with community members in advance of the comment period, and requires NJDEP to apply “special conditions” as may be necessary to avoid or minimize environmental or public health stressors to the overburdened community. The order indicates that NJDEP can only exercise its authority under the order to the extent consistent with existing law and regulations (i.e., not including the EJ Law).
Issuance of the order came months after NJDEP completed a series of stakeholder meetings designed to provide background on the EJ Law and solicit input on key aspects of the law in anticipation of rulemaking. NJDEP also has launched a Community Engagement Series, which began on November 15 in Burlington City. The series is designed to be a year-long effort to encourage community engagement in environmental justice issues.
EJ Law Regulations
As we reported at the time of its passage, the EJ Law seeks to address cumulative environmental and public health stressors in overburdened communities, which the law defines as communities 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 coming year will see the proposal for public comment of what promises to be an extensive set of regulations aimed at implementing the substantive requirements of the EJ Law in these communities. The substantive requirements will reflect the information developed at the stakeholder meetings referenced above and the internal deliberations at NJDEP. The key EJ Law requirements that will be the subject of those regulations are briefly summarized below.
Under the EJ Law, certain types of facilities seeking covered permits for new or expanded facilities from NJDEP in an overburdened community must develop an environmental justice impact statement (EJIS) as part of any permit application. The purpose of the impact statement is to assess the potential environmental and public health stressors associated with the proposed new or expanded facility. The applicant must then hold an environmental justice public hearing to accept comments from members of the overburdened community on the impact statement and the proposed new or expanded facility.
For the issuance of new permits, if NJDEP finds that issuance of the permit would “together with other stressors cause or contribute to adverse cumulative environmental or public health impacts” in the community “that are higher than those borne by other” comparative geographic units, then NJDEP must deny the permit. If NJDEP makes the same finding in the context of existing facility expansions or permit renewals, then NJDEP may only apply permit conditions on the construction and operation of the facility to protect public health.
All the various aspects of the EJIS process, the stressor evaluation, what types of facilities and permits are covered and which are excluded, the public hearing process, the geographic unit comparison, the nature of permissible permit conditions and much more will need to be addressed in the regulations.
Although NJDEP has not officially announced when it expects to issued the proposed regulations, the agency’s informal statements indicate that the proposal should be expected in the New Jersey Register sometime during the first quarter of 2022, followed by a public comment period and the agency’s subsequent review and response to those comments.