IN THE MATTER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION'S APRIL 17, 2023, 55 N.J.R. 661(b) "ENVIRONMENTAL JUSTICE RULES," ET AL. (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION) (CONSOLIDATED) - Published
The Legislature enacted the Environmental Justice Law (EJLaw), N.J.S.A. 13:1D-157 to -161 to "correct [the] historical injustice" of "New Jersey's low-income communities and communities of color hav[ing] been subject to a disproportionately high number of environmental and public health stressors . . . ." N.J.S.A. 13:1D-157. To accomplish its stated purpose, the EJLaw requires certain polluting facilities seeking approvals under existing environmental laws for a new facility, for expansion of an existing facility, or for renewal of an existing facility's major source permit, to prepare and submit, after a process that includes public participation, an independent analysis of the facility's environmental and public health stressors or impacts on the local overburdened community, the environmental justice impact statement, and to propose all feasible measures to avoid direct facility contributions to those stressors.
The Legislature directed that the Department of Environmental Protection "shall adopt . . . rules and regulations to implement the provisions of this [A]ct." N.J.S.A. 13:1D-161(a). After conducting numerous public engagement sessions seeking input from various stakeholders, and researching other approaches to environmental justice taken by the federal government and other states, DEP published its proposed rules and regulations at N.J.A.C. 7:1C (EJRules) with an extended ninety-day public comment period.
After receiving written and oral comments from 497 individuals and entities, and conducting five public hearings, DEP issued an extensive response to the public's comments and then adopted its EJRules with non-substantial changes, effective April 17, 2023.
In these appeals, heard back-to-back, appellants New Jersey Chapter of The Institute of Scrap Recycling Industries, Inc. and Engineers Labor Employer Cooperative of the International Union of Operating Engineers Local 825 appeal DEP's adoption of the EJRules, contending they (1) are ultra vires and exceed the statutory authority provided in the EJLaw; (2) ignore the ordinary meanings of basic terms; (3) are unconstitutionally vague and/or overbroad; and (4) are arbitrary and capricious. Amicus curiae appeared on behalf of appellants and DEP.
The court affirmed the adoption of the EJRules, concluding they harmonize the Legislature's remedial and preventative goals articulated in the EJLaw.