Tagged: Air Pollution

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...

New Jersey Governor Signs Environmental Justice Legislation

On September 18, 2020, New Jersey Governor Phil Murphy signed legislation intended to address the disproportionate environmental and public health impacts of pollution on overburdened communities. The legislation, versions of which have been proposed several times over the past decade, imposes additional requirements on companies seeking permits for new or expanded facilities under a variety of environmental statutes. It also requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate how the proposed permitted activities would impact those communities determined to be “overburdened” under the new law. Earlier this summer, marking the “Juneteenth” anniversary of the emancipation of slaves in the United States, Governor Murphy had indicated his support for the legislation, which some environmental advocates have dubbed the “holy grail” of the environmental justice movement. Although critics of the law raised concerns about its effect on manufacturing and business investment in New Jersey, the bill passed the state legislature in late August, with votes of 49-28-1 in the state Assembly and 21-14 in the state Senate. The types of facilities covered by the new law include certain power plants, incinerators, sewage treatment plants, solid waste facilities, and landfills, as well as other facilities deemed to be “major sources of air pollution” (as determined by the federal Clean Air Act). Governor Murphy stated that,...

NJ Governor Supports Additional NJDEP Permitting Requirements to Address Environmental Justice Concerns

On June 19, 2020, Governor Murphy announced his support for proposed legislation that would require the New Jersey Department of Environmental Protection (NJDEP), and permit applicants, to take additional steps prior to permits being issued for new or expanded facilities under a wide variety of state environmental statutes. The proposed legislation, which aims to protect those communities that historically have been most impacted by pollution from industrial and related activities, would require the NJDEP to publish and maintain a list of those communities determined to be “overburdened.” In the proposed legislation, “overburdened community” is defined as: “any census block group, as determined in accordance with the most recent United States Census, in which at least one half of the households qualify as low income households, and either: (1) at least 40 percent of the residents of the census block group identify as Black, African American, Hispanic or Latino, or as members of a State-recognized tribal community; or (2) at least 40 percent of the households in the census block group have limited English proficiency.” Prior to approval of covered permit applications, an applicant would be required to assess and prepare an environmental impact statement to outline both the existing environmental and health stressors already borne by the relevant community, as well as any additional impacts...

Split Ninth Circuit Grants Government’s Interlocutory Appeal in Youths’ Climate Change Suit

In 2015, 21 youth plaintiffs, ranging in age from eight to 19 at the time of filing, brought a constitutional climate-change lawsuit against the United States alleging that the United States and various executive branch agencies discriminate against younger generations with policies that contribute to and exacerbate climate change in violation of their constitutional rights to life, liberty, and property. The plaintiffs seek an order enjoining current governmental policies and adopting a plan to curb excessive carbon dioxide emissions. The government unsuccessfully sought to have the case dismissed, and when that failed, sought mandamus from the Ninth Circuit directing the district court to dismiss the suit. Recently, after a trip up to the United States Supreme Court and back down to the Oregon District Court, the Ninth Circuit ultimately agreed by a 2-1 majority to allow the defendants’ mandamus petition to proceed. The majority noted that interlocutory appeals under 28 U.S.C. § 1292(b) are generally only authorized when a district court order “involves a controlling question of law as to which there is substantial ground for difference of opinion” and found “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The plaintiffs allege that the United States government knows, yet continues to ignore, that carbon dioxide emissions from the...

Executive Order Spells Uncertainty for Pending EPA Rules

On January 30, 2017, as promised during his campaign, President Trump signed an executive order requiring federal agencies to identify two regulations to be repealed for every new regulation that is created. The order comes on the heels of a January 20, 2017 memorandum from White House Chief of Staff Reince Priebus directing agency heads to freeze new or pending regulations including those that had been finalized but not yet published in the Federal Register. The “one in, two out” rule and regulatory freeze spell uncertainty for regulations currently in the pipeline for adoption by the Environmental Protection Agency (“EPA”), including the proposed financial assurances rules for the hardrock mining industry we have previously covered here. Other impacted EPA rule proposals include a stormwater general permit designed to reduce polluted runoff from construction sites and a rule which would include vapor intrusion as a method of evaluating contamination levels at potential Superfund sites. At present, it is unclear how the administration’s actions will ultimately impact any pending EPA regulations (or those of other federal agencies). The environmental attorneys at Gibbons P.C. will be closely monitoring any further executive action impacting proposed EPA rules and report on any important developments.

Governor Christie Vetoes Offshore Wind Bill

Recently, Governor Christie vetoed legislation designed to allow additional applications for offshore wind projects seeking approval from state regulators. The now-defunct bill, S988, sponsored by Senators Bob Smith (D-Middlesex) and Jim Whelan (D-Atlantic), sought to allow the New Jersey Board of Public Utilities (“BPU”) to open a 30-day period for the submission of offshore wind project applications. More specifically, the bill would have allowed BPU to accept and approve “a qualified wind energy project that is located in territorial waters offshore of [a] municipality in which casino gaming is authorized,” i.e. a wind project offshore from Atlantic City.

U.S. Supreme Court Gives Downwind States Breathing Room Under the Clean Air Act

On April 29, 2014, in EPA, et al v. EME Homer City Generation, LP, the United States Supreme Court ruled in favor of the US Environmental Protection Agency (“EPA”) and its controversial “Transport Rule” which curbed nitrous oxide and sulfur dioxide emissions in 27 upwind states. The Supreme Court held it was appropriate to defer to EPA’s expertise in crafting a method of implementing the Clean Air Act’s (“CAA”) “Good Neighbor” provision to reduce pollution from upwind states onto their downwind neighbors.

NJDEP Holds Its 12th Annual Regulatory Update Conference

The New Jersey Department of Environmental Protection (“NJDEP”) held its 12th Annual Regulatory Update Conference on November 22, 2013. The conference provided brief regulatory updates from a number of NJDEP departments and programs. The New Jersey Department of Environmental Protection (“NJDEP”) held its 12th Annual Regulatory Update Conference on November 22, 2013. The conference provided brief regulatory updates from a number of NJDEP departments and programs including: The Environmental Management Program; The Site Remediation Program; ; The Bureau of Air Quality Planning; The Office of Environmental Justice; The Bureau of Environmental Evaluation & Risk Assessment; The Emission Statement Program; and The Office of Science.

US EPA Issues National Standards for Mercury Pollution from Power Plants

On December 21, 2011, the United State Environmental Protection Agency (EPA) announced that it had issued the first ever national standards for mercury emissions and other air pollutants from power plants. The regulations were mandated by the 1990 Clean Air Act Amendments. EPA estimates that the new standards will make a major contribution to public health by preventing 11,000 premature deaths and 4,700 heart attacks annually, as well as 130,000 cases of childhood asthma symptoms and about 6,300 cases of acute bronchitis among children each year.

Nissan Leaf EV Expected to be Available Nationwide in Early 2012

The all electric Nissan Leaf is now available in seven new states, bringing the total to 30, including New Jersey, where it is sold. The additional states are Delaware, Indiana, Louisiana, Nevada, Ohio, Pennsylvania and Rhode Island. This is good news for Delaware, Pennsylvania and Rhode Island, which are members of the Transportation and Climate Initiative planning for an Electric Vehicle (EV) Network across the Northeast.