New Jersey DEP Proposes Comprehensive Environment Justice Regulation

The New Jersey Department of Environmental Protection (DEP) in June officially published the highly anticipated proposed implementing rules of the state’s Environmental Justice Law. The statute requires environmental justice-specific analyses for facilities that are seeking state agency 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. The proposed rule is open for public comment until September 4, 2022.

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.  New Jersey’s action will likely serve as a model for future environmental justice regulatory programs in other states.

The proposed rules include 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).

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.”  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 regulatory scrutiny of the permit is triggered, including potentially denying permits for new facilities or approving, with conditions, permit renewals or facility expansions.

Where a proposed new facility cannot avoid a disproportionate impact, the state 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.

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.  If you have any questions or would like additional information regarding this issue, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com. 

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This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.