NJDEP Solicits Input as It Begins Process of Drafting Regulations to Implement Landmark Environmental Justice Legislation

As we reported, New Jersey Governor Phil Murphy recently signed the nation’s first environmental justice law, which seeks to address the unfair distribution of the environmental and public health impacts of polluting activities by imposing additional requirements on parties seeking to site, expand, or renew permits for various types of facilities in “overburdened communities,” which are defined in the statute in terms of economic and demographic criteria. The statute requires the New Jersey Department of Environmental Protection (NJDEP) to promulgate regulations to implement its requirements. NJDEP began the public process of developing those regulations on October 22 when Olivia Glenn, Deputy Commissioner for Environmental Justice and Equity, and Sean Moriarty, Chief Advisor for Regulatory Affairs, hosted an online public information session in which they sought the public’s input on how the regulations should address numerous definitional and procedural issues. (The statute will not take effect until NJDEP promulgates its regulations.)

Companies seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope and are located in overburdened communities must prepare an “environmental justice impact statement” and provide for expanded public hearings on their project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility will cause a disproportionate impact on the community. If NJDEP makes such a finding, it must deny the application if it seeks a new permit (unless the facility addresses a “compelling public interest” in the community) or impose extra conditions if the application seeks a permit renewal or involves the expansion of an existing facility.

NJDEP will need to address numerous complex issues in drafting its regulations. In the October 22 webinar, the department sought public input on such issues as the required contents of an environmental justice impact statement; what sorts of stressors to consider, and how to consider them, when it makes a “disproportionate impact” determination; how to design the review process to ensure meaningful public participation; the criteria for concluding that a facility will cause a disproportionate impact; whether and how to consider reductions in other stressors when it makes that determination; and what factors to consider when it determines whether there is a “compelling public interest” in permitting a facility.

NJDEP is also accepting written input on these issues at ejrulemaking@dep.nj.gov. The department will also hold additional stakeholder meetings and provide other opportunities for public input in the process leading up to the formal publication of proposed regulations in the New Jersey Register. You can also sign up for e-mail updates on NJDEP’s environmental justice initiatives here.