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Volume XII, Number 268


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September 22, 2022

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Three Key Takeaways of New Jersey DEP’s Proposed EJ Rules

On June 6, the New Jersey Department of Environmental Protection (DEP) officially published the highly-anticipated proposed implementing rules of the state’s Environmental Justice Law, N.J.S.A. 13:1D-157. The statute requires environmental justice-specific analyses for enumerated facilities that are seeking DEP 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 (see our earlier coverage of the law’s passage here). The proposed rules, currently open for public comment until September 4, detail how DEP will implement the legislation.

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, even for the most seasoned environmental justice practitioners. Given that New Jersey is taking the lead for state action on environmental justice in permitting, the future of the proposed rules will likely inform similar activity elsewhere – including New York’s A2013, an environmental justice permitting bill currently awaiting Governor Hochul’s signature.

Key Takeaways

1. Procedural Roadmap – The DEP-prepared summary of the proposed rules includes 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).

The procedural overview should be helpful to applicants subject to the law as they plan permitting efforts and prepare to navigate the new regulations. DEP’s detailed proposed rules provide welcome clarity for regulated entities with facilities in overburdened communities so that they might anticipate what this unprecedented process may entail and ensure greater predictability in the permitting process.

2. Facility Modeling – 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.” The appendix to the proposed rules helpfully enumerates the specific pollution sources, health concerns, and the relevant data sources used to conduct this analysis (examples include known contaminated sites, impaired surface waters, and potential lead exposure, among others). 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 DEP scrutiny of the permit is triggered, including potentially denying permits for new facilities or approving, with conditions, permit renewals or facility expansions.

By setting forth specific environmental and public health stressors that must be evaluated, the proposed rules introduce a particular methodology and level of certainty that is often absent in this emerging field. Instead of identifying a method of assessing environmental justice impacts that would support DEP’s review, the proposed rules provide permit applicants with a clear set of stressors they must analyze to assess the disproportionate effects.

3. Compelling Public Interest – Where a proposed new facility cannot avoid a disproportionate impact, DEP 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.

Feedback Opportunities

Regulated entities should carefully review the proposed rules and consider submitting feedback to DEP, which is accepting public comments until September 4, 2022. Additionally, 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.

Alicia Arrington and Aspen Ono also contributed to this article.

© 2022 Beveridge & Diamond PC National Law Review, Volume XII, Number 168

About this Author

Stacey Sublett Halliday Environmental 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...

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

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....

Hilary T. Jacobs Environmental Litigation Attorney Beveridge & Diamond Washington, DC

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...