New Jersey is no longer waiting to implement environmental justice requirements following surprise action by the New Jersey Department of Environmental Protection.
Since September 2020, the Garden State has been waiting for the Department to complete the gargantuan task of implementing the first of its kind Environmental Justice Law. The New Jersey law authorizes the Department to deny or condition certain permits for facilities that would have a disproportionate impact on an overburdened community. However, the substantive provisions of the law do not go into effect until the Department adopts regulations to implement the Environmental Justice Law. While the Department has gone to great lengths, including through a substantial stakeholder process, to develop implementing regulations, the regulations have not yet been proposed or adopted. (The regulations are expected to be proposed in late 2021 and adopted in late 2022.)
With the issuance of Administrative Order 2021-25 on September 22, 2021, certain aspects of the Environmental Justice Law are now in effect. The terms of the Administrative Order apply to:
- major sources of air pollution (i.e., facilities with Title V air permits, such as power plants);
- solid waste facilities;
- sewage treatment facilities that process more than 50 million gallons per day;
- scrap metal recycling facilities; and
- other recycling facilities that process more than 100 tons per day.
For these facilities, the Administrative Order:
The Order takes effect immediately and applies to all existing permit applications with open and unexpired public comment periods. The Order also reserves the Department’s authority to apply the terms of the Order to permit applications with closed or expired public comment periods.
In essence, the Administrative Order creates a process to implement the key components of New Jersey’s Environmental Justice Law—without rulemaking—but leaves many questions unanswered, especially given the significant complexity of the Environmental Justice Law and its implementation.
If you own or operate a facility in an overburdened community or are considering development or acquisition of a facility in an overburdened community, you would be well advised to carefully consider the impact of this Administrative Order.
For more information, please contact any attorney in our Environmental Practice Group.