September 23, 2021
Jill Hyman Kaplan, Zachary J. Koslap and Bruce S. Katcher
MGKF Special Alert
In light of the lengthy and ongoing process for adopting regulations to implement the new landmark New Jersey Environmental Justice Law (the “EJ Law”), the Commissioner of NJDEP issued an administrative order on September 20, 2021 (“AO 2021-25” or the “Order”) designed to require a stopgap “mini” environmental justice review process to be applied to all “facilities” seeking “permits” in “overburdened communities” until the final regulations are adopted. It appears the Order is intended to cover the same facilities, permits and overburdened communities as those designated under the Environmental Justice Law (a summary of the EJ Law and the key terms defined under the law may be found here). Notably, the EJ Law expressly provides that its chief provisions will not be implemented until required regulations are adopted, which is not expected to happen until sometime in 2022.
Under AO 2021-25 the requirements that will apply to permit applications for these facilities are as follows (where “consistent with applicable statutes and regulations”):
- All public comment periods will be no less than 60 days and will be extended another 30 days where a request is made by a community member to extend in order to provide the stressor information that NJDEP encourages the community to provide per the following bullet;
- DEP review of applications shall
- require each applicant to hold a public hearing “in a manner consistent with the” EJ Law to maximize community participation;
- encourage those providing public comment to provide NJDEP and the applicant with information regarding existing conditions within the community and potential “facility-wide” environmental and public health stressors (not defined, but presumably the same as those identified in the EJ Law) that could result in adverse community impacts if the activity or the project is approved;
- require the applicant to respond to and address concerns raised by community members, including doing “additional analysis” if deemed necessary by the NJDEP;
- “strongly” encourage the applicant to engage with community members in advance of and in addition to any formal comment period by providing facility wide information “consistent with the” EJ Law and soliciting concerns regarding stressors posed by the facility; and
- apply special conditions to permits or approvals as necessary to avoid or minimize stressors “to the maximum extent allowable by law”.
AO 2021-25 goes into effect immediately and applies to “all existing permit applications with open and unexpired comment periods”. It also makes clear that NJDEP’s authority to reopen or further extend comment periods on a case by case basis consistent with applicable statutes and regulations is not affected. The Order stays in effect until the EJ regulations are promulgated, unless the Order is extended, revoked or modified.
The Order raises a multitude of questions. For example:
- Is the scope of the stressors that are to be considered coextensive with the conditions that are defined as stressors under the EJ Law?
- What will happen if an applicant does not respond to NJDEP’s “strong encouragement” to engage with the community in advance of the public comment period?
- What does it mean for a public hearing to be consistent with the EJ Law?
- Does AO 2021-25 apply to permit renewals? Does it apply to permits for the installation of equipment that will reduce emissions or discharges?
- What types of permit conditions might apply to mitigate stressors?
- May an applicant propose an environmentally beneficial project to mitigate stressors other than ones that are asserted by community members and receive credit for that?
This is wholly aside from whether the Order is an unlawful attempt to implement the EJ Law in advance of the promulgation of the EJ regulations. In an apparent attempt to avoid such a legal challenge the Order goes to great lengths to try to make it clear that NJDEP can only exercise the authority granted under the Order “consistent with existing statutes and regulations” – for example if a particular statute does not allow a 60-day comment period with a 30-day extension, this Order would not supersede the lesser requirement.
Whether this type of limitation is enough to save provisions of the Order such as the one which requires NJDEP to apply permit conditions to avoid or minimize the adverse impacts of stressors on the community, given that no statute other than the EJ Law allows for the imposition of permit conditions in such terms, is certainly open to question.