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New Jersey set to act on its landmark environmental justice law

A young protestor at a march holds a sign reading "The climate is changing why aren't we?"
Image Credit: Wix

Two years ago New Jersey passed legislation setting the stage for a landmark environmental justice law and now, in June 2022, they are one step closer to implementing it.

The law mandates that the Department of Environmental Protection deny permit requests if it finds a facility that would create or contribute to a disproportionately high cumulative burden on the surrounding neighborhood. In 2020, the law was the first of its kind in the country and was a giant stride for environmental justice advocacy in the city. Now, New Jersey has laid out plans detailing just how it will get done, reports Grist.

“That’s a very important point, because that was a point of intense, intense debate in the passage of the law. It really was what gave it strength.” Ana Baptista, a professor at The New School told Grist, referring to the permit request mandate. Baptista is also a New Jersey Department of Environmental Protection and Ironbound Community Corp. trustee.

“These rules represent the hard work and diligence of EJ activists that have worked tirelessly alongside NJDEP to produce the strongest environmental justice law in the nation. Finally, there is a light at the end of this journey towards environmental justice for all,” she said in a statement.

The 153-page draft rule, released earlier this month, was the result of six stakeholder meetings with input from communities, environmental justice leaders, and affected industries. Tireless efforts notably came from New Jersey Environmental Justice Alliance (NJEJA), Ironbound Community Corp. Environmental Justice, South Ward Environmental Alliance, and Clean Water Action.

As reported by Grist, the rule specifies how the Department of Environmental Protection will handle permit requests.

Under the draft rule, if a polluting facility wants to build or expand within an overburdened community, it will need to prepare a thorough report evaluating its contributions to the cumulative impact on people living nearby.

The agency will then have to publicize the report and hold a public hearing before making a decision on the permit application. This part of the rule is intended to increase transparency; allowing the people from affected communities to play a crucial role in decision-making.

“One of the most critical details of the Environmental Justice Law is the robust public process required of permitting facilities,” Melissa Miles said in a statement.

Miles is the Executive Director of the New Jersey Environmental Justice Alliance (NJEJA). “For far too long some of the worst actors have lied or bought their way into the good graces of a few key people and claimed that their ‘back room’ deals were community engagement,” she said. “Even now some communities expect polluting industries to operate in obscurity and without their input. That all ends with the implementation of the EJ Law.”

The state intends to finalize the law by the end of the year. Currently, community members and companies have the opportunity to submit public comments on the draft rule prior to finalization, providing an opportunity for environmental justice advocates to get elements of the draft strengthened or clarified.

For example, the draft rule creates an exception for polluting facilities that serve an “essential environmental, health, or safety need in the host community — such as waste composting sites or projects designed to prevent sewage overflows,” reports Grist.

Economic aspects such as employment opportunities or tax revenues are explicitly excluded from consideration. While Baptista and other environmental justice advocates worked hard over the last two years to ensure it was a narrow exception, Baptista explains that there’s still room for improvement and tightening of the clause’s wording “to ensure it doesn’t serve as a loophole.”

The law will apply to eight types of facilities, including incinerators, sewage treatment plants, and landfills. It includes a blanket exemption for ones that are in the “compelling public interest,” which, while the law specifies economic opportunity does not constitute a compelling interest, the term remains undefined.

Other states have been closely watching New Jersey.

Similar bills had been kicked around for years, but it was the national outrage over the murder of George Floyd that got it over the finish line in New Jersey, said state Senator Troy Singleton, who helped shepherd the bill to passage, told Politico. Singleton said that he is talking with policymakers in other states, including Pennsylvania, Maryland, and Delaware, who have other environmental justice legislation on the table.

At the end of April, New York joined New Jersey in passing its own law, prohibiting industry from building polluting facilities such as power plants, warehouses, and garbage dumps in communities already experiencing environmental contamination.

Like its neighbor, New York’s bill prohibits the state agency from enacting actions or approving permits that might cause or contribute to a “disproportionate or inequitable” pollution burden on communities that have a large percentage of minority or low-income residents, are economically distressed, or already experience high rates of pollution. However, Governor Kathy Hochul has yet to sign the bill.

New Jersey’s ruling is not without complications.

At present, one of the most hotly contested environmental justice cases in the state is the proposition of a backup gas-fired power plant at a sewage treatment facility in Newark’s Ironbound section. Because it is not yet signed into law, the ruling will not affect the case.

The neighborhood is already cloudy with pollution due to its international airport, nearby power plants littering the area, and a web of highways and heavy truck traffic that run through the town.

The point of the power plant is to ensure that another disaster, such as that during Sandstorm Sandy does not happen again, when nearly a billion gallons of raw sewage flowed into nearby waterways when the plant went offline due to a lack of electricity, as the Associated Press reported.

The Passaic Valley Sewerage Commission says that without the backup plant this will happen again. As of January, the commission has been directed to pause production of the largest part of a $180 million backup power plant, as directed by the Governor. However, due to electric demand, the commission says it “plans to convert from natural gas to cleaner fuels as soon as that becomes feasible, including the use of battery power.” The commission also plans to convert from natural gas to cleaner fuels “as soon as it becomes feasible,” AP writes.

New Jersey’s ruling is one step toward equitable, community-conscious environmental justice legislation, and advocates hope other states follow New Jersey’s lead.

“We need to stop digging ourselves into this hole of perpetual inequality in communities of color and low-income communities,” Maria Lopez-Nuñez, deputy director of organizing and advocacy for the Newark-based group Ironbound Community Corporation told Grist.

“We can’t just continue to make assessments about the problem and look at it.,” Lopez-Nuñez said. “We need to actually say no to industry when it hurts communities and adds to the problems that already exist there. That’ll only happen when more states pass environmental justice laws that have strong enforcement capacities.”

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