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The New Jersey Department of Environmental Protection's (NJDEP) implementing regulations for the state's landmark 2020 environmental justice law (EJ Law) have withstood appellate court scrutiny. In response to two consolidated challenges to the EJ Law's implementing regulations (EJ Rules), which became effective in 2023, the New Jersey Appellate Division recently issued an opinion upholding the EJ rules.
Enacted in 2020, the EJ Law requires certain facilities seeking NJDEP approval for new, renewed, or expansion permits to conduct environmental justice (EJ) specific when the facility is located in an "overburdened community." These communities are defined as any Census block group where low-income, minority, or non-English speaking populations exceed specified thresholds (see our earlier coverage of the law's passage here). The EJ Law was the first of its kind to require the consideration of environmental and public health stressors on overburdened communities in the permitting process. The EJ Law also requires NJDEP to deny permit applications where the department finds that the facility would disproportionately impact overburdened communities, unless the facility will "serve a compelling public interest in the community where it is located." NJDEP also has the authority to approve a permit subject to conditions that mitigate those disproportionate impacts. NJDEP's procedural overview roadmap further describes the regulatory process.
Appellants challenged various aspects of the EJ Rules, arguing that they were arbitrary and capricious, ultra vires, unconstitutionally vague and/or overbroad, and as exceeding NJDEP's statutory authority provided in the EJ Law. Among other claims, the challengers contested NJDEP's decision to exclude economic benefits, such as employing local members of a community or increasing transactions with local businesses, from the definition of "compelling public interest."
The court rejected all challenges and sided with NJDEP in every instance, ultimately affirming the legality of the EJ Rules and NJDEP's judgment in implementing the EJ Law. The decision affirms NJDEP's interpretation of what is arguably the most expansive EJ permitting law enacted to date in the U.S.
Key Takeaways
The decision solidifies NJDEP's implementation of what is widely regarded as the most expansive environmental justice permitting framework in the country. Regulated entities should expect NJDEP to continue applying the EJ Rules rigorously and should carefully assess EJ implications early when planning projects or permit applications in New Jersey.
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