State-Sponsored Environmental Justice: New Jersey’s Cumulative Impacts Act

By Isaac Kort-Meade

Environmental justice has long been a grassroots movement with little more than promises from federal and state governments to fix deep-rooted inequalities.  The movement seeks to respond to the disproportionate impact of environmental hazards felt by low-income and minority populations and the discriminatory nature of the decision-making process regarding the siting of those hazards.  Studies have indicated that race is a leading factor in predicting how close an individual lives to a hazardous industrial site.  Where the federal government has generally failed to protect disadvantaged communities from environmental harm, states have stepped up to increase oversight over high-pollution development.    

This September, New Jersey passed a first-of-its-kind environmental justice bill, Senate Bill 232, also known as the Environmental Justice and Cumulative Impacts Act.  Prior to this act, New Jersey’s laws only required identification of a project’s potential impacts on disadvantaged communities before a permit was issued to a developer, without any real restrictions on agency decision-making.  Since 2004, the state’s Environmental Justice Task Force has made recommendations to the Department of Environmental Protection (DEP) and sought to increase the involvement of minorities in decision-making processes. However, subsequent judicial decisions generally showed deference to agency approvals of industrial development with significant environmental justice impacts despite the statewide efforts to protect minorities. [1]  Over the last 16 years, New Jersey has slowly been implementing more meaningful environmental justice reforms, and the disproportionate impact of the Covid-19 pandemic on minority communities has finally prompted the passage of SB 232.

SB 232 declares the rights of all residents of the state to a clean environment and recognizes that “historically, New Jersey’s low-income communities and communities of color have been subject to a disproportionately high number of environmental and public health stressors . . . .”  The law applies to a variety of highly polluting facilities, including any “major source[s] of air pollution.”  If any of these types of facilities are proposed to be placed in an “overburdened community,” DEP must first prepare an Environmental Justice Impact Statement and conduct public meetings in the affected community.  The act defines “overburdened community” as a census tract that has “(1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency.” If the proposed facility would disproportionately affect the local community and there is no compelling public interest to grant the permit, the Department shall deny it.  The bill’s use of the word “shall” deny rather than “may” deny means that the Department will be more inclined to side with environmental justice advocates over industrial developers.

With this bill’s passage, New Jersey has the strictest and likely most effective state law addressing environmental justice.  Other states have implemented environmental justice laws, most of which simply require consideration of a project’s impact.  A less aggressive law in California [2] requiring municipalities to include environmental justice elements in their general plans has been met with mixed reviews and little enforcement.  These state laws, however, go far beyond the federal standard of addressing environmental justice concern. The federal government has recognized the importance of environmental justice since Executive Order 12,898, issued by President Clinton in 1994.  However, the actual impact of this and subsequent federal laws have been minimal because they do little more than require agencies to consider the environmental justice impacts of proposed projects.  This has led to outcomes contrary to environmental justice goals.  For example, the D.C. District Court in 2017 upheld the U.S. Army Corp of Engineers approval of a permit for the Dakota Access Pipeline which simply considered the project’s impact on Native American land. [3] In another case, the D.C. Circuit Court upheld an Environmental Impact Statement issued by the Federal Energy Regulatory Commission because it sufficiently considered the number of disadvantaged communities affected by a proposed pipeline, without actually taking any steps to mitigate the project’s risks. [4] The New Jersey law goes far beyond this deferential standard and is likely to promote increased oversight of polluting development in minority and low-income communities.

With racial and social justice on the forefront of the minds of many Americans, renewed focus on environmental justice reform is possible.  Going forward, New Jersey Governor Phillip Murphy has identified three principles of environmental justice for the state to focus on: “Cultivate Awareness Consistently . . . Empower Communities to Participate in Decision-Making Process . . . [and] Plan for and Embrace Change.”  The impact of New Jersey’s aggressive approach remains to be seen, but it is clear that it will provide a better framework for environmental groups to challenge and even stop polluting development, especially in the communities most affected by pollution and other environmental impacts.

Sources

1. In re Gaeta Recycling Co., Inc., No. A-2470-04T2, 2007 WL 609161, at *8 (N.J. Super. Ct. App. Div. Mar. 1, 2007). Only available on Westlaw.
2. The relevant language is in § 65302(h)(1).
3. Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, 282 F. Supp. 3d 91, 101 (D.D.C. 2017).
4. Sierra Club v. FERC, 867 F.3d 1357, 1369 (D.C. Cir. 2017).