Key Takeaways

• What Happened: On August 27, 2020, the New Jersey state legislature passed landmark environmental justice legislation requiring the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) to identify the state’s “overburdened communities,” and only grant or renew permits for covered facilities after determining that there is no disproportionate, cumulative environmental impacts on those communities.

• Who is Affected: The bill imposes new requirements on permits for certain “covered facilities” located within the same Census tract as overburdened communities, including: facilities that are major sources of air pollution (as defined under the Clean Air Act); resource recovery facilities or incinerators; sludge processing facilities, combustors, or incinerators; sewage treatment plants with capacity over 50 million gallons per day; and certain kinds of landfills.

• Next Steps: With both houses of the state legislature passing the bill, it is now on the desk of New Jersey Governor Phil Murphy, who announced his support for the legislation in June. The bill takes effect immediately upon Gov. Murphy’s signature.

The New Jersey state legislature made history on August 27, 2020, by passing the first-of-its-kind environmental justice legislation, which imposes new requirements on permit applicants in the state. The bill (S232/A2212) requires that applicants seeking to permit a covered facility submit an environmental justice-specific impact statement and hold public hearings if the facility is located near overburdened communities. The NJDEP may not consider the application without the required impact statement and must evaluate the cumulative impacts of the facility on those communities before approving the application or permit renewals. Similar iterations of the bill failed to progress in prior years, underscoring the significance of its passage. Governor Murphy, who announced his support of the legislation on June 19, 2020, is expected to sign the bill into law.

The Details

The bill’s coverage and requirements are the most far-reaching environmental justice legislation in the country, requiring an “Environmental Justice Impact Statement” in initial permit applications and permit renewals for covered facilities located in the same Census tracts as overburdened communities. The Environmental Justice Impact Statement must include an evaluation of any potential unavoidable environmental and public health stressors by the facility, as well as any existing environmental and public health stressors already borne by the overburdened community. In addition, permit applicants must conduct a public hearing in the overburdened community, accept oral and written comments from any interested parties, and submit a transcript of the public hearing to NJDEP. The Department will assess an additional fee to applicants to support the expanded environmental justice review, as well as provide advisory resources to overburdened communities during the public engagement process.

Once permit applicants submit the Environmental Justice Impact Statement, hearing transcript, and public comments, NJDEP must formally consider the materials in its decision-making process. Upon finding that the facility would disproportionately impact overburdened communities more than others, the Department must deny the permit application unless it will “serve a compelling public interest in the community where it is to be located.” Additionally, NJDEP has the authority to approve a permit subject to conditions that mitigate the disproportionate impacts.

Under the bill, “overburdened communities” are defined as Census tracts with low-income, minority, or non-English speaking populations exceeding specified thresholds. More than 300 municipalities within the state are anticipated to meet this definition. Once the bill is effective, NJDEP has 120 days to publish a list of overburdened communities and must update it once every two years. Further, “covered facilities” include: any major source of air pollution under the Clean Air Act; resource recovery facilities or incinerators; sludge processing facilities, combustors, or incinerators; sewage treatment plants with a capacity exceeding 50 million gallons per day; and certain kinds of landfills.

New Jersey Environmental Justice Regulation and Enforcement Trends

Over the course of the past decade, policymakers have introduced similar environmental justice bills in the legislature but each effort died in committee. With Gov. Murphy’s public endorsement and larger statewide environmental justice prioritization, however, the tide has changed. If signed into law, the bill promises to have far-reaching implications for industry, environmental justice communities, and other stakeholders, including serving as a model for a growing number of states considering environmental justice bills.

Notably, on the same day the bill passed, NJDEP and the New Jersey Attorney General announced they had filed 12 new environmental justice enforcement actions that target environmental contamination in minority and low-income neighborhoods. This followed similar environmental justice enforcement announcements in recent months. This series of enforcement actions, as well as the bill’s passage, demonstrate a larger statewide effort to amplify the state's commitment to environmental justice protection and enforcement. In furtherance of these efforts, the state had previously created the Environmental Enforcement and Environmental Justice Section of the Attorney General’s Office.

Although the bill’s passage in the legislature is significant, the full scope remains to be seen. The bill directs NJDEP to adopt implementing rules and regulations and authorizes it to issue technical guidance. Stakeholders will be well-served to evolve business practices to account for these sweeping new changes.

Co-authored by Stacey Sublett Halliday, Independent Consultant for Beveridge & Diamond