By Michael K. Mullen, Esq.

In late August, the New Jersey Legislature succeeded in passing what is viewed by some as a landmark environmental justice bill. Additionally, many people have expressed some concerns regarding the extent of the bill, including, but not limited to, its significant permit implications.

Governor Murphy signed the legislation into law on September 18, 2020.

New Jersey has long had some statutory provisions which seek to advance the interests of “environmental justice,” particularly as the same relate to New Jersey’s urban areas.

Such earlier legislation was largely regarded as somewhat rudimentary and tended to focus on notice and recordkeeping matters. Attempts to create more serious environmental justice legislation in New Jersey really go back over a decade. Commentators believe that this latest bill has moved farther than any prior attempt has before. Some view the legislation as the strictest law of its kind in the country.

Under the legislation, New Jersey’s Department of Environmental Protection (NJDEP) would have to consider the impact to “overburdened communities,” posted by certain new facilities along with expansions of those facilities or renewals of major source permits. The legislation is slated to be effective 180 days from enactment.

This particular legislation singles out any sites that are major sources of air pollution, along with “resource recovery facilities or incinerators,” along with landfills, transfer stations, sludge processing plants and scrap metal facilities. The legislation also encompasses recycling facilities receiving at least 100 tons of recyclable material per day.

The legislation defines impacted communities within Census Block Groups with either 35% or more of households qualifying as low-income, at least 40% of residents being citizens of color or at least 40% having reduced English proficiency.

Estimates forecasted by lawmakers and projected by various interest groups suggest that 300 of New Jersey’s 565 municipalities could have at least one community that falls into those categories and their parameters.

Sites or proposed developments in affected areas would need to prepare an environmental justice statement and transmit it to the relevant municipality at least 60 days prior to any public hearing. Any decision as to the use or expansion of the site delayed at least 45 days following the requisite public hearing and the NJDEP would ultimately be free to deny a permit on environmental justice grounds.

Not surprisingly, passage of the legislation came despite serious opposition from many business stakeholders. Many of such stakeholders have said that the legislation is vague, with uncertain and unclear impacts. Some members of the industry have also said that they feel particularly singled out, as the bill directly targets waste and recycling facilities.

Not surprisingly, some commentators and experts with knowledge of the process have suggested the legislation could prevent the creation and continuation of a number of facilities and even several supporters of the legislation have admitted that it could hinder certain new business efforts. Experts have estimated that the costs of the environmental justice statement and the public hearing process alone could well exceed $50,000. Additionally, people are forecasting higher operational and administrative expenses associated with the new legislation.

In addition to the bill receiving significant support from impacted communities and environmental groups, it has drawn the support of Governor Murphy and Senator Cory Booker.

While the legislation, sought by the environmental justice community for some time, is viewed by many advocates as one of the strongest measures in the country to give local communities the ability to fight new power plants, incinerators and manufacturing facilities within their borders, many are concerned that the effect of the same in terms of the expansion of New Jersey’s business community is hurtful, particularly in the time of COVID-19 and with so many New Jersey workers out of work.

As a postscript to the new legislative initiatives involving environmental justice, the State Attorney General’s Office has recently filed twelve new environmental enforcement actions that specifically target polluters whose actions threaten the health and safety of residents in minority and lower-income neighborhoods in Newark, Orange, South Orange, Paterson, Jersey City, Elizabeth, Hillside, Fairton and Upper Deerfield Township.

These lawsuits are part of an agenda to address harms disproportionately affecting the public and the environmental health of New Jersey’s low income, non-English speaking and minority residents.

For more information, contact Michael K. Mullen, Esq. at mkm@spsk.com or 973-540-7307.