The Environmental Justice Rules Head to the Supreme Court for Review

New Jersey’s Environmental Justice Law, enacted in 2020, was the first statute of its kind in the country. It requires certain industrial facilities seeking NJDEP permits to construct new facilities in communities already carrying a heavy pollution burden (“over-burdened communities”) to study what they will add to that pollutant load, to present those findings publicly, and in some circumstances to be denied a permit.

NJDEP’s rules implementing the law have drawn criticism and legal challenges brought by a number of trade organizations since taking effect in 2023. The Appellate Division of the Superior Court upheld them in January. The state Supreme Court agreed in July to review that ruling. The parties' written arguments were due at the end of September, and outside groups with a stake in the outcome had until October 5 to file their own.

The EJ Law. The statute applies to eight categories of facilities, among them major air pollution sources, landfills, scrap metal operations, and solid waste and recycling facilities.  Census figures decide which neighborhoods qualify as overburdened communities: at least 35 percent of households are low income, or 40 percent of residents are minority or members of a State-recognized tribal community, or 40 percent of households have limited English proficiency.

A facility seeking a DEP permit in one of these neighborhoods must prepare a written study of the potential environmental and health effects its facility would add, then present it at a public hearing in the affected community. From there, everything turns on whether NJDEP treats the facility as new or existing. The Law provides that a new facility that would add to existing burdens  must be denied a permit, unless it will serve a “compelling public interest”. An existing facility that is seeking to expand or renew can be required to accept conditions designed to minimize new burdens, but cannot be turned down.

The Court Will Rule on Four Questions. The first question is geographic: can the rules reach a facility in a census block group with no residents, because it immediately abuts an overburdened community? Challengers say an area with no population cannot satisfy criteria that turn on who lives there; NJDEP says those criteria cannot be calculated for an empty block, and that a plant next door affects a community much as one inside it would.

The second concerns the definition of a "new" facility. The rules treat a facility as new if it had not begun operating by April 17, 2023, if it changes its use, or if it was operating before that date without an approval NJDEP required. The last of those is what is disputed, and it matters because a new facility that would add to a community's existing burdens must be denied a permit absent a compelling public interest, while an existing one can only be made to accept conditions.

Third is whether NJDEP could adopt the control standard it created for major sources of air pollution, which requires the most effective available technology and, unlike the State's longstanding standard, does not allow costs to be weighed. Challengers call it an emissions standard the Legislature never authorized.

The fourth question sounds procedural but is central to the facilities subject to the law: whether NJDEP's online mapping tool and technical guidance are rules that needed public notice and comment. The Department issued both the mapping tool and guidance document without it, saying they add nothing the rules do not already require; challengers say the tool in practice decides who is covered and what they must do. Courts dealing with that question in prior matters have generally held that guidance documents are not subject to the public notice and comment process.

What Happens While the Case is Pending. The rules remain in force, and any permit application filed now must currently comply with them.   Regardless of how the Court decides the four questions presented, the rest of the EJ program will be staying in place. Where coverage is uncertain, an applicant may ask NJDEP for an applicability determination. Buyers, lenders, and redevelopers should treat that classification as a due diligence item rather than an afterthought.

If you have questions about how these rules or the pending appeal may affect your facility or project, please contact Amie C. Kalac (AKalac@cullenllp.com), Neil Yoskin (NYoskin@cullenllp.com) or Paul Recupero (PRecupero@cullenllp.com).

Please note that this is a general overview of the law and no content within this excerpt constitutes legal advice. Nothing herein creates an attorney-client relationship between the authors and the reader.