October 28, 2020

Volume X, Number 302

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October 26, 2020

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New Jersey Governor Signs Landmark Environmental Justice Legislation Into Law

Key Takeaways

  • On September 18, 2020, New Jersey Governor Phil Murphy signed landmark environmental justice legislation into law. The law (S232), which the state legislature passed last month, requires 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 certain facilities after determining that there is no disproportionate, cumulative environmental impacts on those communities.

  • The law imposes new requirements for obtaining permits for “facilities” located in 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; large sewage treatment plants; transfer stations, large recycling facilities, and landfills; and other industrial facilities.

  • According to a press release from Gov. Murphy’s office, approximately 310 municipalities in the state with estimated populations totaling 4,489,000 have overburdened communities within their municipalities.

Context

New Jersey made history by passing the first-of-its-kind environmental justice legislation, which imposes “environmental justice” requirements on permit applicants in the state. The new law requires applicants seeking to permit a covered facility near an overburdened community to submit an environmental justice-specific impact statement and hold public hearings. The NJDEP may not consider the permit application without the required impact statement and must evaluate the cumulative impacts of the facility on overburdened communities before approving the application or permit renewals. Previous iterations of the law stalled in the legislature in recent years, underscoring the significance of it finally becoming law.

The Details

The law’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 overburdened communities. The Environmental Justice Impact Statement must include an evaluation of any environmental and public health stressors the facility cannot avoid, 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 law, “overburdened communities” are defined as any Census block group with low-income, minority, or non-English speaking populations exceeding specified thresholds. The NJDEP has 120 days from the law’s effective date to publish a list of overburdened communities, which it must update once every two years. Further, “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; solid waste facilities, transfer stations, and recycling facilities intending to receive at least 100 tons of daily recyclable material; scrap metal facilities; landfills; and specified medical waste facilities.

New Jersey Environmental Justice Regulation and Enforcement Trends

Over the course of the past decade, lawmakers have introduced similar environmental justice bills in the legislature, but each attempt has died in committee. The Murphy Administration, however, has prioritized environmental justice, implementing a number of statewide EJ initiatives. The law promises to have far-reaching implications for industry, environmental justice communities, and other stakeholders, including serving as a model for the federal government and a growing number of states considering environmental justice bills.

New Jersey’s actions further a larger trend in the state’s efforts to promote environmental justice. On the same day that Gov. Murphy signed S232 into law, New Jersey Senator Cory Booker introduced environmental justice legislation in Senate (Environmental Justice Legacy Pollution Cleanup Act). Similarly, on the day that the state legislature passed S232, NJDEP and the New Jersey Attorney General announced 12 new environmental justice enforcement actions targeting environmental contamination in minority and low-income neighborhoods. This followed similar environmental justice enforcement announcements in the state in recent months. This series of enforcement actions, as well as the new EJ law, show a state determined to amplify its commitment to environmental justice protection and enforcement.

Although Gov. Murphy signing the bill into law is indisputably significant, the full extent of the law’s impact remains to be seen. The law directs NJDEP to adopt implementing rules, regulations, and guidance, which will be important indicators of how the state plans to view the application of this unprecedented law. Industry stakeholders should modify their business practices to account for these sweeping new changes.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 267
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About this Author

Julius M. Redd Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Associate

Julius is a litigator and counselor who maintains a national practice.

He represents clients in complex matters in civil litigation and administrative regulatory proceedings arising under the Clean Water Act, the Safe Drinking Water Act, the Clean Air Act, the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). His ability to connect with clients and learn the intricacies of their businesses allows him to align his legal counsel with targeted actions that advance clients’ goals....

202-789-6069
Hilary T. Jacobs Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Associate

Hilary maintains a general environmental litigation and regulatory practice, working with clients nationwide across industrial sectors.

She joined the Firm following her graduation from the University of Maryland Francis King Carey School of Law (UM Carey Law). 

While at UM Carey Law, Hilary served as a law clerk in the U.S. Environmental Protection Agency's Office of Enforcement and Compliance Assurance, Water Enforcement Division, and served as Articles Editor for the Maryland Law Review. She also worked in the University of Maryland’s Environmental Law Clinic to assist a Baltimore community prevent an environmentally harmful development in their neighborhood, and received the Community Scholar Prize for her significant contributions to this work. As a part of her work at the Clinic, Hilary also co-authored a report documenting environmental justice issues in the state of Maryland. She was also selected to present a paper on creative climate change litigation strategies for small island nations at the 11th Annual Colloquium of the International Union for Conservation of Nature’s Academy of Environmental Law. 

While earning her undergraduate degree in Environmental Studies, Hilary was selected as student representative for the Washington University Delegation to the 17th Conference of the Parties to the United Nations Framework Convention on Climate Change. She also served as a student consultant at Washington University’s Environmental Law Clinic.

202-789-6086
Stacey Sublett Halliday Environmental Independent Consultant
Independent Consultant

Drawing on her diverse litigation and regulatory experience in government and private practice, Stacey advises clients on environmental compliance due diligence, environmental enforcement, corporate social responsibility, non-financial reporting, and environmental justice.

Following her move overseas in August 2019, Stacey founded Global Environmental Solutions Consulting, LLC, and works closely with Beveridge & Diamond as an independent environmental consultant. As a former principal at B&D, Stacey continues to serve the firm’s clients...

202.789.6074
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