Since
taking office last year, New Jersey Governor Phil Murphy has sought to place
concerns about environmental justice in the foreground of New Jersey’s
regulatory decision-making process. Advocates and policymakers long have
maintained that locally undesirable or polluting land uses disproportionately
are located in low-income, typically urban communities that lack political
influence or sufficient resources to protect their interests. Environmental
justice efforts attempt to respond to this imbalance and, as the NJDEP defines
the concept, aspires that “no one group of people will have a disproportionate
share of negative environmental consequences stemming from industrial,
governmental and commercial operations or policies.” Recently, both the
executive and legislative branches have taken steps to implement new
environmental justice policies. Last year, Governor Murphy issued an Executive
Order and NJDEP distributed a draft guidance document that instruct State
agencies to account for environmental justice concerns in their decision-making
processes. In addition, S1700, a bill imposing additional environmental
permitting requirements in certain “burdened communities,” was unanimously
reported out of the Senate Environment and Energy Committee in February.
The Murphy administration took its first steps toward addressing
environmental justice concerns with Executive Order 23, issued in April 2018,
which directed NJDEP to develop a guidance document providing direction for all
executive agencies to take environmental justice into account in their
decision-making. NJDEP published its draft guidance in December 2018 in
response to the E.O. 23 directive. In its current form, the draft guidance
directs fifteen State agencies to prepare Environmental Justice Action Plans
that would focus on internal training of agency employees and provide the
public with greater opportunities to participate in agency decisions that
impact environmental justice communities. A new interagency working group would
develop solutions to the exposure of underprivileged communities to lead in
paint and drinking water and would study ways in which those communities are
vulnerable to climate change. In short, the environmental justice draft
guidance is heavy on interagency cooperation and public participation, but does
not impose new requirements on regulated entities.
On the other hand, S1700, the environmental justice bill currently
before the legislature, if passed, would impose stringent requirements on some
regulated entities. This bill has been introduced in several successive
Legislative sessions in the last decade, but always died in committee; however,
the current administration, as noted, has put its influence behind
environmental justice efforts. As modified in the Senate Energy and Environment
Committee before being reported to the Senate Budget and Appropriations
Committee on January 24th, S1700 requires NJDEP to designate census tracts
ranked in the bottom third of tracts in the state for household median income
as “burdened communities.” Before NJDEP could issue a permit to build or expand
certain facilities located in burdened communities, including electric
generating facilities, sewage treatment plants, solid waste transfer stations
or recycling centers, or landfills, S1700 would erect several new procedural
barriers: (1) the applicant must prepare an environmental impact statement and
hold a public hearing in the burdened community; (2) NJDEP can deny a permit
application that otherwise meets all other requirements if the cumulative
health and environmental effects of the permitted activity, combined with
existing environmental conditions, would constitute an “unreasonable risk” to
the burdened community; and (3) NJDEP must consider the community support for
or opposition to the project before issuing the permit. However, the Senate
Energy and Environment Committee made the bill less burdensome than the initial
draft; for example, the committee limited the types of facilities to which
S1700 would apply, and it removed a requirement that the municipal governing
body separately approve permits for facilities in burdened communities.
Notwithstanding
these committee changes, S1700 still would make siting or expanding covered
facilities more onerous than it is under existing law. An existing facility
located in an area designated as a burdened community could find that its
ability to expand is severely constrained. The somewhat vague term
“unreasonable risk” (to be further defined by NJDEP through promulgation of
rules and guidance) also invites litigation over NJDEP’s permit decisions in
burdened communities. It should be noted, however, that the bill’s permissive
language—NJDEP “may deny a permit application”—could make it difficult to
challenge NJDEP’s exercise of discretion to deny a permit on environmental
justice grounds or to grant a permit despite environmental justice concerns.
The scope of NJDEP’s obligation to “consider” community support or opposition
to the permit is unclear. Would the agency have acted in error if it “considers”
near unanimous community opposition to a permit, but grants the permit
nonetheless?
Interested parties should closely follow and consider
participating in these ongoing efforts to implement environmental justice
principles. The Legislature’s effort to inject environmental justice
principles—usually reserved for the rarefied precincts of inter-agency
discussion groups—into the everyday work of issuing permits for facilities
could change the course of development in New Jersey.
For more information, please contact the author Michael Kettler at mkettler@riker.com or any attorney in our Environmental Practice Group.
