June 25, 2024


Law for politics

How New Jersey’s environmental justice law is beginning to affect operators around the country


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In 2020, New Jersey passed what many in the waste industry consider the country’s most notable environmental justice law. It requires certain operators to consider the environmental justice impacts on nearby communities when applying to expand a facility, construct a new one or renew permit authorization. Matthew Karmel, an environmental attorney with Riker Danzig, has worked with New Jersey companies to help them understand their responsibilities under the new law and navigate complexities of both it and other environmental justice laws and policies. 

On Monday, the New Jersey Department of Environmental Protection took a notable step toward implementing the law by issuing a draft of the proposed final rule. After NJDEP holds a series of public hearings, set for July, the state could adopt the final rule by the end of this year. Among its requirements, the proposed rule states that permit applicants are expected to offer “meaningful engagement” in their plans for expansion, new facilities, or renewals. This includes hosting a public hearing, opening a public comment period of at least 60 days and providing an environmental justice impact statement assessing any new environmental or public health impacts the facility could pose to “overburdened communities.” 

The law is meant to protect the state’s “low-income communities and communities of color, [who] historically have been subjected to a disproportionately high number of environmental and public health stressors,” according to NJDEP.

The waste and recycling industry in New Jersey — and across the country — has taken note of the law’s requirements, which other states could use as a blueprint for their own laws and regulations on mandatory compliance components in the future.

Waste Dive talked with Karmel on two occasions about what the new law might look like for waste and recycling operators, how operators in any state can create their own risk assessments to get a better picture of their environmental impact through an environmental justice lens and where environmental justice shows up in the industry beyond regulatory compliance. 

These interviews have been edited together for length and clarity.

You’re an environmental lawyer in New Jersey, a state that is pretty well known for enacting some strict environmental justice rules for permitting and other actions. What’s the latest in terms of the state regulations and when and how folks will need to comply with the new law?

The law was passed in 2020 but none of the requirements are effective until regulations are adopted. Regulations have not been adopted. What the New Jersey DEP has done [in the meantime] is issue an administrative order, saying they’re going to do certain things under their existing authority before those regulations come in. That means incorporating some of the public participation aspects of the law, such as [requiring] public hearings and public comment periods for anyone who would have been subject under the regulations of the law until we get those regulations enacted. They also included language saying they were going to consider additional substantive items, like permit conditions or permit denials, where appropriate under their existing authority. So DEP has had a lot of existing authority, and they’re going to use it in that way.

There have already been a couple people who have gone through the public hearing process on their way to permit renewals or new permits under New Jersey’s law. We’re starting to see the process unfold. I don’t think we’ve seen a significant substantive impact on any projects yet, but we’re seeing this public participation process happening.

We are not at a point yet in the regulatory process where it is easy to communicate nuance in a regulatory discussion that involves EJ. There’s a lot of significant concern. As an example, New Jersey has guidance that was issued to the solid waste industry where new permits — even before this new EJ law — had to go through some additional public participation. It was minimal, an extra hearing. But after New Jersey came out with its new EJ law, that same guidance was applied really conservatively and restrictively by local governments [to the degree that] regulators did not want to even touch a project until the EJ process had completed. On one hand, it’s good practice, because [as a regulator,] you don’t want to make a decision before the process goes through. But now we’re seeing EJ as a limiter on normal regulatory discretion, at least at this point. 


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