EJ for NJ: new environmental justice rules go into effect

New Jersey has implemented the rules for its landmark environmental justice law passed in 2020. The hotly anticipated rules will require certain industries and facilities to avoid a disproportionate impact in an overburdened community from health stressors.

Regulatory background

In 2018, Governor Phil Murphy of New Jersey issued Executive Order 23, which required that state agencies begin to incorporate environmental justice principles into their policies. The New Jersey Department of Environmental Protection (DEP) followed this with its guidance Furthering the Promise: A Guidance Document for Advancing Environmental Justice Across State Government, released in September 2020. The guidance created a framework for DEP’s plans for implementing the state’s environmental justice goals and was developed via interagency coordination and public comment periods.
The guidance focused on identifying principles for furthering environmental justice in New Jersey, including cultivating awareness consistently, empowering communities to participate in decisionmaking processes, and planning for and embracing change. The guidance also launched the Environmental Justice Interagency Council (EJIC), which convenes to help agencies adopt the principles of Executive Order 23; complete the governor’s initial assessments, participate in workshops and trainings, and create action plans.
In September 2020, the governor signed the new environmental justice law into effect, N.J.S.A. 13:1D-157. The law declares that all New jersey residents have a right to live, work, and recreate in a clean and healthy environment and that historically, New Jersey’s low-income communities and communities of color have been subject to a disproportionately high number of environmental and public health stressors. Environmental and public health stressors are defined as sources of environmental pollution or conditions that may cause potential public health impacts in the overburdened community. These health stressors have included pollution from numerous industrial, commercial, and governmental facilities located in those communities leading to increased adverse health effects. The law specifically states that children are especially vulnerable to pollution-based health effects, and that adverse health effects overall impede the growth, stability, and long-term well-being of individuals and families living in overburdened communities.
The environmental justice law requires that DEP consider how certain facilities that seek permits to construct new facilities (or certain upgrades) or operate in overburdened communities will contribute to public health issues and environmental and health stressors on the populations surrounding the facilities through the use of a comparative analysis. While conducting the analysis, DEP may consider environmental and public health stressors on a facility-wide basis, including elements not previously subject to certain of the Department’s media-based regulatory schemes. The law enhances DEP’s existing authorities, which have previously allowed for considering how to reduce adverse impacts on health and the environment but have not been previously able to address facility-wide environmental impacts.
DEP first proposed the environmental justice rules that follow the environmental justice law in June 2022. The rules were developed based on public input and stakeholder engagement, and focused on how DEP would implement the statutory charges from the environmental justice law.
The environmental justice rules officially went into effect on April 17, 2023.

Applicability of the new rules

The new rules apply if three conditions are met: (1) if the proposed or existing facility is one of eight specific facility types, (2) if the applicant seeks an individual permit under DEP regulations, and (3) the facility is located or proposed to be located in an overburdened community. The eight facility types include: (1) major sources of air pollution and facilities operating under Title V of the Federal Clean Air Act; (2) resource recovery facilities or incinerators; (3) sludge processing facilities, combustors, or incinerators; (4) sewage treatment plants with a capacity of more than 50 million gallons per day; (5) transfer stations or other solid waste facilities, or recycling facilities intending to receive at least 100 tons of recyclable material per day; (6) scrap metal facilities; (7) landfills, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; and (8) medical waste incinerators, except those that accept regulated medical waste for disposal, or is attendant to a hospital or university and intended to process self-generated regulated medical waste.
There are a wide variety of permitting types that will fall under the new environmental justice rules. All renewals of major source or Title V permits for any existing facility under current Air Pollution Control Rules will be subject to the environmental justice rules, as well as facilities subject to the Pesticide Code, Solid Waste Rules, Water Pollution Control Rules, and more. The environmental justice rules are specifically not applicable to permits necessary to perform remediation or minor modifications to a facility’s major source permit, or for any activities or improvements that do not increase actual or potential emissions.
DEP defines an overburdened community in three ways: (1) at least 35% of the households qualify as low-income households; (2) at least 40% of the residents identify as minority or as a member of a New Jersey-recognized tribe; or (3) at least 40% of the households have limited English proficiency. Any census block group that meets any of the three criteria is considered and overburdened community and falls under the environmental justice rules.

Environmental justice comparative analysis process

Under the rules, DEP will determine whether a facility’s pollution or emissions will contribute to environmental and public health stressors that affect an overburdened community and will deny or condition permits where the facility cannot avoid a disparate impact. DEP considers a disparate or disproportionate impact exists when a facility’s emissions or pollution will contribute to those stressors and add cumulative adverse stressors or when a facility’s emissions or pollution will contribute to an overburdened community already subject to adverse cumulative stressors. DEP defines “adverse cumulative stressors” when the combined sum of all adverse stressors is higher than the sum of stressors for the average area in the state.
If DEP suspects that a facility’s new permit request may cause an adverse cumulative effect on an overburdened community, it will complete a comparative analysis of the environmental and public health stressors in overburdened communities. DEP will then require the permit applicants to identify measures to avoid or minimize contributions to environmental and public health stressors, focusing on a net environmental benefit to the overburdened community.
The new rules give DEP wide leeway to deny or impose conditions on permits. For new facilities, DEP is required to deny a permit application when the facility cannot avoid a disproportionate impact, unless the applicant can show that the facility will serve a compelling public interest. For expanded facilities or major source renewals, DEP does not have the authority to deny the permit application if the facility cannot avoid a disproportionate impact but can impose conditions on the site to address facility impacts to environmental and public health stressors.
During a comparative analysis, the applicant will be required to hold a public hearing in the target overburdened community and respond to public comment. This process also requires the applicant to provide that testimony and any written comments and responses to DEP for review.
DEP also explains that it will utilize its Environmental Justice Mapping, Assessment, and Protection (EJMAP) for identifying environmental and public health stressors, appropriate geographical comparisons, adverse stressors, and combined stressor calculations.

Environmental justice impact statements

Submissions under the rules will often require an Environmental Justice Impact Statement (EJIS). The EJIS requires information in a wide variety of categories, including operating information, permitting, and facility location information. The EJIS will include assessments of facility impacts to environmental and public health stressors as well as the public participation plan that the facility must undertake to fulfill its requirements under the environmental justice rules. Two additional requirements for the EJIS include a demonstration that the facility would avoid a disproportionate impact (including any necessary operational conditions or control measures) as well as how the proposed new facility would serve a compelling public interest in the overburdened community.
Supplemental information is required when a facility cannot avoid a disproportionate impact. Supplemental information includes, but is not limited to assessments of site contamination, climate, and flooding impacts; traffic studies; air and ground water quality data; and more.

Public participation and government review

The environmental justice rules also require “meaningful public participation” from facilities and applicants regarding the information in the EJIS and the proposed new facility or facility changes. The applicant must hold an in-person public hearing (with a virtual option) in the host overburdened community to present on the project and receive and respond to public comment with 60 days of advance notice of the hearing. The permit applicant must also accept public comments for at least 60 days (including 30 days post-hearing) and must also record and transcribe the public hearing, making those recordings and transcription available.
After the hearing, DEP will consider the EJIS, and any other supplemental information deemed relevant by DEP to determine whether the facility can avoid a disproportionate impact and decide whether to grant or deny the permit. DEP will deliver its decision in writing, along with a summary of facts, DEP analysis, and any conditions that will be set by DEP that will be incorporated into the applied-for permits.

Compelling public interest

Within the environmental justice rules is a carve out for facilities that provide a compelling public interest. DEP specifically considers certain public works projects (such as food waste facilities, public water infrastructure, renewable energy facilities) which reduce adverse environmental or public health stressors for an overburdened community or serve as an essential need for an overburdened community. This case-by-case review of facilities is only applied once applications are submitted and will be reviewed by DEP.
DEP specifically excluded considering economic factors (such as employment or tax revenue) in determining whether a facility serves a compelling public interest. DEP stated that the reasoning is intentionally narrow and that it could not provide a broad exception as that would run afoul of the legislative intent of the rule. However, DEP announced that it would consider public input as part of its assessment of a compelling public interest.

Next steps

New Jersey is the first state with this level of environmental justice law to go into effect. The use of a “compelling public interest” exception for facilities may allow certain ones to be built or upgraded even if the facilities will cause additional disproportionate impact, however the express carve-out for economic benefits from a facility means that an applicant cannot rely on an argument that a facility will bring additional jobs or income to a community as a reason to sidestep the new environmental justice rules.
As states continue to implement new environmental justice rules in certain parts of the country, it is likely that those states will look to New Jersey on how to enforce the law, and what future pitfalls or benefits may occur from drafting future rules differently.

To contact the author of this analysis, please email Walker Livingston.
To contact the editor of this analysis, please email Patricia Iscaro.