In 2020, the Trump Administration restricted the environmental review process for major federal actions required under the National Environmental Policy Act of 1969 to essentially consider only the goals of the applicant; this was the first time a substantial change had been made to this process in over 20 years. To reverse this reduction in environmental protection, on October 7, 2021, the Council on Environmental Quality published a rule proposal requiring that reviews under NEPA include a broad range of environmental concerns, including climate change and environmental justice, priorities of the Biden administration.
While entrepreneurs and investors rush to set up cannabis businesses throughout the Garden State, how will New Jersey regulate the environmental impacts of the industry?
Most people don’t think of the environmental impact of cannabis, but producing cannabis products can be energy intensive and involve issues relating to water, air quality, and waste management. In New Jersey, where the recently legalized adult-use cannabis industry has been estimated to be worth more than $2 billion annually, cannabis operations will be required to consider and address environmental impacts.
New Jersey has set an ambitious goal to supply 7,500 MW of offshore wind energy to the State by 2030. In order to meet this goal, New Jersey will be required to provide port services to support the development of offshore wind farms. To that end, Governor Murphy included $200 million in the State’s budget to construct an offshore wind port located in Salem County.
New Jersey is extending certain remediation timeframes as a result of the ongoing COVID-19 pandemic, but the availability of an extension is subject to some uncertainty. On February 8th, the New Jersey Department of Environmental Protection (“NJDEP”) published a Notice of Rule Waiver/Modification/Suspension (the “Notice”) extending certain timeframes effective February 1, 2021.
An Overview of New Jersey’s Brownfields Redevelopment Incentive Program
New Jersey is rolling out a new tax incentive program for the redevelopment of underused, contaminated properties, known as “brownfield sites.” In fact, on January 7, 2021, Governor Phil Murphy signed into law the New Jersey Economic Recovery Act of 2020, P.L.2020, c.156 (the “Economic Recovery Act”), a broad piece of legislation that provides support for a variety of programs and policies related to jobs, small businesses, sustainable energy, and many other areas.
Reducing Long-Term Risk and Exposure to Environmental Liabilities
Despite the impact of COVID-19 on other areas of commercial real estate, the industrial sector continues to thrive as the e-commerce industry seeks properties for warehousing and logistics centers, especially in close proximity to New Jersey’s advantageously-placed ports and arterial highways that provide “last mile” delivery capabilities.
If the date May 7, 2021 has significance to you, it may mean that you have a site remediation case in New Jersey. For a large segment of these cases with contamination that pre-dates 1999, the deadline for Remedial Action to be complete is May 2021. (A site remediation case in New Jersey goes through several phases; the Remedial Action phase involves physical activities that remove, reduce, or contain the contamination at issue, such as excavation and off-site disposal or establishment of engineering and institutional controls.)
Update: Governor Phil Murphy signed this legislation into law on September 18, 2020, and NJDEP began stakeholder meetings to discuss the implementing regulations earlier this fall. We expect that NJDEP will conduct a robust stakeholder process given the complex issues involved in implanting the legislation. Riker Danzig attorneys will be tracking this process closely.
In August 2018, the New Jersey Department of Environmental Protection (“NJDEP”) declared that environmental enforcement was “back in business” and brought its first new litigation seeking natural resource damages (“NRD”) in ten years. Loyal readers of this blog will recall that we reported in 2019 on a trial court decision that dismissed the Department’s common law claims for NRD related to a former Hess oil refinery and terminal and discussed NJDEP’s pending appeal of the decision: “NJDEP’s Common Law Natural Resource Damage Claims Temporarily ‘Out of Business.’”
