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The New Jersey Supreme Court has agreed to hear a challenge to the Department of Environmental Protection’s (“NJDEP”) Environmental Justice Rules, N.J.A.C. 7:1C-1.1 to -10.3 (“EJ Rules”), which implement the Environmental Justice Law, N.J.S.A. 13:1D-157 to -161 (“EJ Law”). The EJ Law was enacted in 2020 as the first state statute establishing a formal environmental justice program. The Appellate Division upheld the Rules in a published opinion issued January 5, 2026.
The Supreme Court will review four elements of the EJ Rules: (i) the applicability of the rules to facilities that abut overburdened communities but are themselves in zero-population census blocks; (ii) NJDEP’s adopted definition of “new facilities,” which receive harsher treatment under the EJ Law than existing facilities; (iii) the constitutionality of the newly established Localized Impact Control Technology standard for new or expanded major sources of air pollution; and (iv) the validity of NJDEP’s Environmental Justice technical guidance and online mapping tool. All other aspects of the EJ Rules are outside the scope of the Supreme Court appeal and will remain in place regardless of the result of that case.
The Environmental Justice Law
The EJ Law requires certain industrial facilities to identify and address the environmental and public health burdens they impose on communities that already bear a disproportionate share of such burdens. It applies to eight categories of facilities in overburdened communities, including major sources of air pollution, solid waste and recycling facilities, scrap metal facilities, and landfills. The operation of the law is triggered when an applicant seeks a permit for a new facility, for the expansion of an existing facility, or for the renewal of an existing facility's major source air permit. An overburdened community is any census block group in which at least thirty-five percent of households qualify as low income, at least forty percent of residents identify as minority or as members of a State-recognized tribal community, or at least forty percent of households have limited English proficiency.
A covered applicant must prepare an environmental justice impact statement, transmit it to NJDEP and the municipality, and hold a public hearing in the community. What follows depends on how the facility is classified. For a new facility, if NJDEP finds that approval would cause or contribute to adverse cumulative stressors higher than those borne by other communities, NJDEP must deny the permit unless the facility serves a compelling public interest. For an existing facility seeking an expansion or a major source renewal, NJDEP may impose conditions on construction and operation, but it has no authority to deny the permit.
In accordance with the EJ Law’s directive, NJDEP adopted its rules implementing the EJ Law on March 9, 2023, effective April 17, 2023. Among other things, the EJ Rules defined key terms relevant to the appeal, including “new facility,” “existing facility,” and “compelling public interest.”
The Parties and the Decision Below
The New Jersey Chapter of the Institute of Scrap Recycling Industries, Inc. (“ISRI”), which represents more than fifty recycling businesses in the State, and the Engineers Labor Employer Cooperative of the International Union of Operating Engineers Local 825 (“ELEC”) each filed separate appeals challenging the EJ Rules. The New Jersey Business & Industry Association and the Chemistry Council of New Jersey appeared as amici below in support of petitioners, and both have filed briefs supporting the petitions for certification. Several community and environmental organizations appeared as amici in the Appellate Division in support of NJDEP.
Petitioners argued below that in promulgating the EJ Rules, NJDEP improperly expanded the reach of the EJ Law beyond what the Legislature enacted or intended. According to the challengers, the EJ Law applies only to facilities in overburdened communities, yet the EJ Rules extend the program to facilities in adjacent unpopulated areas. The EJ Law distinguishes between new and existing facilities, yet the EJ Rules classify certain long-operating businesses as new, exposing them to mandatory permit denial. The EJ Law authorizes permit conditions, yet the EJ Rules created a new air pollution control standard that conflicts with the standards established under New Jersey’s Air Pollution Control Act. And finally, petitioners contend that while the EJ Law authorized NJDEP to issue technical guidance, the online mapping tool NJDEP released goes beyond guidance and thus required formal rulemaking.
The Appellate Division rejected each of these arguments and concluded that NJDEP acted within the authority the Legislature conferred when it directed the agency to adopt rules implementing the EJ Law. The court applied the deference New Jersey courts ordinarily give an agency's interpretation of a statute it administers, noting that deference is especially appropriate when an implementing agency construes a new statute. On most of the issues, the Appellate Division found that the EJ Rules are consistent with the EJ Law’s stated purpose of correcting the historical injustice of New Jersey's low-income communities and communities of color having been subject to a disproportionately high number of environmental and public health stressors.
Petitioners sought review, and the Supreme Court granted certification in July. The issues before the court are: whether the Appellate Division correctly applied principles of statutory interpretation to its review of the EJ Rules; whether applying the EJ Rules to facilities in unpopulated census block groups that abut overburdened communities exceeds NJDEP's statutory authority; whether treating existing facilities that lack required approvals as new facilities subject to mandatory permit denial is ultra vires; whether the Localized Impact Control Technology standard NJDEP created for major source air permits is ultra vires and unconstitutionally vague; and whether NJDEP was required to conduct formal rulemaking before issuing its mapping tool and technical guidance. The parties’ Supreme Court briefs will be filed by the end of September, and proposed amicus briefs are due on October 5th.
Facilities in Adjacent Zero-Population Block Groups
N.J.A.C. 7:1C-2.1(e) extends the EJ Rules to facilities in census block groups with no population where such block groups immediately abut an overburdened community. Petitioners argue that the EJ Law’s text applies only to facilities located in an overburdened community, and that a block group with no residents can satisfy none of the three demographic criteria for defining overburdened communities. NJDEP responds that those criteria do not lend themselves to a meaningful calculation for a block group with no population, leaving a statutory gap that the agency was entitled to fill, and that a facility immediately adjacent to a community has the potential to affect it much as one located within it would. The Appellate Division upheld the provision, relying on the statute’s application to a facility located “in whole or in part” in an overburdened community together with the requirement that an applicant assess stressors “located in or affecting” that community. Petitioners answer that the two provisions operate at different stages, the first determining whether the EJ Law applies at all and the second governing what must be assessed once it does.
Existing Facilities Treated as New Facilities
Under N.J.A.C. 7:1C-1.5, a facility is “new” if it had not commenced operation as of April 17, 2023, if it undergoes a change in use, or if it was operating without an approval that NJDEP required before that date. Because the EJ Law’s mandatory denial provision applies only to new facilities, the classification as “new” determines whether a facility that does not serve a compelling public interest receives permit conditions or loses the permit. The Appellate Division upheld the definition, concluding that the word “new” is broad enough to encompass a facility that operated without the approvals NJDEP required, and that classifying such a facility as new prevents it from receiving the same benefit the EJ Law affords facilities that have complied with registration and permitting requirements.
ISRI argues that a facility operating in the same manner for decades remains an existing facility even if NJDEP later concludes it lacked a required approval, and that misclassifying it as “new” means nearly certain permit denial. NJDEP responds that the EJ Law prescribes different consequences for new and existing facilities without prescribing which facilities belong in which category, and that a facility that operated unlawfully without a permit should not receive the treatment the EJ Law reserves for compliant facilities.
The Localized Impact Control Technology Standard
N.J.A.C. 7:1C-7.1 establishes the Localized Impact Control Technology (“LICT”) standard, which applies to a proposed new major source of air pollution seeking to demonstrate a compelling public interest and to the expansion of an existing major source. The applicant ranks the available control technologies by effectiveness and must adopt the most effective one unless it is eliminated for technical infeasibility, disproportionate environmental impacts, or energy tradeoffs. NJDEP modeled the standard on the State of the Art (“SOTA”) standard at N.J.A.C. 7:27-8.12 and, for major facilities, N.J.A.C. 7:27-22.25, except that LICT omits economic feasibility and measures emissions facility-wide rather than source by source. The Appellate Division upheld LICT, holding that it does not conflict with the Air Pollution Control Act because LICT focuses on technical feasibility rather than economic feasibility or cost effectiveness, and treating the EJ Law’s “notwithstanding any other law” clause as an indication that the Legislature intended to give NJDEP discretion in conditioning permits.
ELEC and both amici contend that a requirement operating this way functions as a new air pollution control standard, not a permit condition, and that adopting such a standard is a legislative judgment NJDEP cannot make on its own. Under SOTA, compliance with the applicable federal benchmark, such as Best Available Control Technology or Lowest Achievable Emission Rate, satisfies the standard, and the top-ranked control measure may be eliminated on economic grounds. LICT permits neither. ELEC adds that LICT is unconstitutionally vague because it displaces the settled SOTA standard and disregards the Air Pollution Control Act’s case-by-case application, leaving applicants uncertain what compliance requires.
The EJMAP Tool and Technical Guidance
NJDEP issued the Environmental Justice Mapping, Assessment, and Protection tool and an accompanying technical guidance document pursuant to the EJ Law’s authorization to issue technical guidance. It did so without notice and comment, relying on the Administrative Procedure Act's exception for regulatory guidance documents. The mapping tool displays the twenty-six stressors adopted in the EJ Rules and translates the underlying publicly available data into a single online map. The Appellate Division held the exception to requiring rulemaking procedures applies, agreeing with the NJDEP that the materials add no requirement beyond those the EJ Rules contain and that an applicant may decline to use the tool and obtain the underlying data separately.
ELEC argues that the tool determines whether a facility is covered and what control measures it must propose, thus operating as a rule. On March 31, 2026, after the Appellate Division's decision, NJDEP announced that it had updated the tool with new stressor data and that any permit application submitted on or after that date must refer to that data for permitting purposes. ELEC reads that instruction as inconsistent with the premise that use of the tool is optional.
Significance and Practical Considerations
The Court's decision in this case will shape the scope and application of the EJ Law for years to come. A ruling on the adjacency provision will determine whether the program covers facilities in industrially zoned areas that abut overburdened communities but have no residents within their census block. The new-facility classification issue will determine whether long-operating businesses with permitting gaps face permit denial or only permit conditions. The LICT dispute will establish whether major source applicants in overburdened communities must meet a stricter, cost-blind standard than the SOTA framework that governs other facilities. And on the mapping tool, a holding that formal rulemaking was required would likely require NJDEP to re-promulgate the tool through notice-and-comment, giving both industry and community organizations an opportunity to weigh in on the underlying data and methodology.
The case also presents the Court with an opportunity to address agency deference more broadly. ELEC has asked the Court to consider whether the United States Supreme Court's decision in Loper Bright Enterprises v. Raimondo, which ended federal courts' obligation to defer to an agency's reading of the statutes it administers, should prompt a similar reconsideration in New Jersey. ELEC reads the Court’s prior decisions as leaving that question open. This case, which turns in large part on how much weight to give NJDEP’s interpretation of the EJ Law, may provide the occasion to address it.
The EJ Rules remain in effect while the appeal is pending, so applications filed in the interim must comply with them. Owners and operators of covered facilities should confirm that every operation at the site is authorized by a current approval and that renewals are filed on time, as a gap in compliance can result in classification as a new facility and exposure to the EJ Law’s denial provision. Where coverage by the EJ Law is uncertain, an applicability determination may be requested from NJDEP under N.J.A.C. 7:1C-2.1(g). Applicants for new or expanded major sources in overburdened communities should assess what the LICT analysis would require and plan accordingly.
We will report on the Court's decision when it issues.
For more information, please contact the author, Michael Antzoulis, or any attorney in Riker Danzig's Environmental Practice Group.
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