The New Jersey Department of Environmental Protection ("NJDEP" or the "Department"), recipient of a State and Tribal Environmental Justice ("STEJ") Grant from the Environmental Protection Agency, recently partnered with the City of Newark in anticipation of implementing its environmental justice program. NJDEP will select a facility within Newark to serve as the first model site. Largely through the industrial facility permitting processes, NJDEP will seek to alleviate the disparate impact environmental contamination has had on the urban populations and ensure that future permits that will have a discriminatory effect on these communities are not issued.
Title VI of The Civil Rights Act of 1964 states that "[all] persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, … without discrimination or segregation on the ground of race, color, religion, or national origin." The law ensures that federal funds are not used to implement discriminatory programs. This concept extends to the area of environmental law through the theory of Environmental Justice. Environmental Justice ("EJ") has been defined broadly as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
The Clinton Administration's 1994 Executive Order, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations," initiated empowerment of predominantly urban neighborhoods that once were the nation's industrial centers and historically have borne the majority of the burden related to environmental contamination. The Executive Order mandates that all federal agencies develop written plans to address the concerns of these urban populations.
Certain advocacy groups have challenged the United States Environmental Protection Agency's ("EPA") right to review permitting activities on the basis of their potentially disparate impacts, contending that EPA's regulatory authority extends only to prohibiting intentional discrimination, and does not apply to neutral acts which may have a discriminatory effect. The U.S. Supreme Court has not yet opined on whether permits may be challenged by private individuals under Title VI of the Civil Rights Act.
In response to the Executive Order, the EPA has developed its program under which no group of people should bear a disproportionate share of the negative environmental impacts within a locale. Avoidance of future discriminatory impacts will occur through review of initial issuance and renewal of environmental permits and licenses to avoid disproportionate environmental effects.
To support the development and implementation of EJ programs, EPA created the State and Tribal Environmental Justice Grants Program to provide financial assistance to States and Tribes who begin an Environmental Justice Program at the State level. EPA Region 2 Administrator Jeanne M. Fox explains, "While we seek to preserve our nation's open landscapes and ecosystems, we must address the needs of the lower-income and minority communities in our cities that have traditionally borne the brunt of our environmental wrongdoing. These . . . grants will give affected communities tools to ease this environmental burden and prevent further threats to residents' health."
Implementation of the EPA's program may result in yet another test for redevelopment activities and permitting of new businesses in cited urban areas. The State of Michigan's environmental agency recently defended its right to issue new air permits to industries in located in a predominantly African-American community. The agency's authority was challenged by a local NAACP chapter, which alleged that issuing new permits violated the civil rights of residents of that community.
Brownfields-related laws also raise this concern in light of provisions to limit liability for prospective purchasers, i.e., those who have an economic interest in redevelopment. This immunity is challenged by environmental justice advocates who see the potential for discriminatory effects on the urban populace, even while recognizing the need for the cleanup of these abandoned properties.
New Jersey, through the Department of Environmental Protection, a recipient of a Federal Year 1998 STEJ $100,000 grant, has recognized that community involvement and participation in the process is the link between the regulated community and EJ advocates. Accordingly, NJDEP launched the Environmental Equity Community Partnership Program ("EECP") to work towards such EJ goals as: reduce or prevent disproportionately high and adverse human health or environmental effects on low income communities and minority communities, integrate measur-able EJ goals within the annual Performance Partnership Agreements and Memoranda of Understanding, and improve public participation in the decision-making processes (e.g., permitting processes, development of regulations and policies). New Jersey's program, along with similar ones in four other states, is among the first pilot programs in the nation. Specifically, DEP's stated purpose for the EECP program is to establish and incorporate an EJ screening process for evaluating EJ issues of affected communities with respect to air, water, and/or hazardous waste facility permits.
NJDEP Commissioner Shinn has appointed an advisory task force to implement the program; the group has met with local community personnel to identify ways to effectively and efficiently utilize the grant. The Department has aligned with the City of Newark to form the first Community Partnership between the State and an urban community. Subsequently, NJDEP seeks to establish EECP programs throughout the state in those low income and/or minority communities that may be experiencing a cumulative environmental burden as a result of a disproportionately high incidence of soil contamination, air or water pollution or solid/hazardous waste facilities. This proactive approach may result in companies working along with community groups throughout the permitting processes to ensure future environmental equity.
Due to staffing changes within the task force, the formulation of the model program has been delayed. Therefore, EPA granted NJDEP an extension to complete the model and begin implementation, and NJDEP anticipates completing the model by year end. Once the model is complete, the Department will begin the project by selecting an industrial facility within the City of Newark to serve as the pilot site.
