New Jersey Environmental Justice Permit Review Program Expected to Kick Off in 2023
Over two years ago, Governor Murphy signed New Jersey’s landmark Environmental Justice Law (EJ Law), which requires the New Jersey Department of Environmental Protection (NJDEP) to engage in a specialized and rigorous EJ permitting review process pursuant to regulations to be adopted by the agency. The process is intended to address cumulative environmental and public health stressors associated with locating certain new or expanded facilities in areas the law designates as “overburdened communities” before it may issue environmental permits covered by the law (see our summary of the EJ Law here). The EJ Law does not go into effect until the final regulations are issued, which, as described below, is expected to occur early in 2023 and could create much uncertainty for covered facilities.
Covered facilities primarily include major sources of air pollution, a wide range of solid waste and recycling facilities, and scrap metal facilities. Covered permits include most individual permits, registrations or licenses issued under a broad range of state environmental laws. The EJ Law defines overburdened communities as those census tracts 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.
Under the EJ Law persons seeking any of the applicable permits from NJDEP for covered new or expanded facilities in an overburdened community must develop an Environmental Justice Impact Statement (EJIS) as part of any permit application. The EJIS must assess the potential environmental and public health stressors associated with the new or expanded facility, and with the existing source. For new facilities, if NJDEP finds that the facility 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” communities in the State, county or other geographic units as determined by NJDEP, then NJDEP must deny the permit (an exception is made for certain facilities serving a compelling public interest, although permits for such new facilities may be conditioned). If NJDEP makes the same finding in the context of an existing facility seeking a permit for an expansion or a permit renewal, then NJDEP may only apply permit conditions on the construction and operation of the facility to protect public health.
The EJ regulations address the details of the implementation strategies for the substantive requirements of the law. They were proposed in June 2022 following a stakeholder process. The proposed regulations then went through an extensive public comment process, which included over 1,500 comments. The regulations and NJDEP’s responses to public comments are expected to be issued in final form early this year and trigger the commencement of the EJ review process for covered facilities and permits.
Pending the finalization of the regulations, NJDEP has been overseeing a hybrid environmental justice review process as mandated under a 2021 administrative order issued by the agency. The order, which purports to have been issued under the authorization of pre-EJ Law environmental permitting programs, applies to the same facilities as defined in the EJ Law that seek the same authorizations covered under the EJ Law located in the same overburdened communities. 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, 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. Although there have been a number of public hearings under the administrative order, as of this writing no permits have been issued to entities that have gone through this process. Thus, it is difficult to predict what permit conditions NJDEP may impose under the administrative order or, when issued, the finalized EJ regulations.
Once the regulations are finalized, we expect that obtaining permits will require even more advanced planning and interaction with the affected community. Additionally, facilities should prepare for unpredictable timelines for permit issuance, and uncertainty in the conditions that may be imposed on a new or existing facility’s permit for any facility covered by the EJ Law. If the final regulations are substantially similar to the proposed regulations, NJDEP will have the discretion to impose conditions that range from on-site conditions pertinent to the subject matter of the permit to off-site conditions that are unrelated to the subject matter of the permit. Given the limited language of the EJ Law versus the expansive nature of the proposed regulation, the final regulations, which are not expected to change much from the proposal, could be legally challenged on the basis that they go beyond what the statute authorizes. For example, it is possible that challenges could be mounted to the definitions of a new facility, expanded facility, what constitutes the appropriate geographic point of comparison and what constitutes a compelling public interest to authorize NJDEP’s issuance of a permit for a new facility. If you would like to learn more about the impact of the regulations or how they apply, please reach out to MGKF’s Jill Kaplan or Carol McCabe.