A New Jersey Law Makes a Clean Environment a Right. Other States Should Follow.

On August 27, the New Jersey legislature approved a far-reaching new environmental justice bill intended to reduce the harmful effects of pollution in low-income communities and communities of color. Gov. Phil Murphy has announced he will sign the bill into law on September 18.

The new law establishes a right to a clean environment for all New Jersey residents, stating: “all New Jersey residents, regardless of income, race, ethnicity, color, or national origin have a right to live, work, and recreate in a clean and healthy environment.” Further, the law states that, “no community should bear a disproportionate share of the adverse environmental and public health consequences that accompany the State’s economic growth.”

The law acknowledges 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, including pollution from numerous industrial, commercial and governmental facilities located in those communities” resulting in “increased adverse health effects including, but not limited to, asthma, cancer, elevated blood lead levels, cardiovascular disease, and developmental disorders.”

“Children are especially vulnerable to the adverse health effects caused by pollution, and such health effects may severely limit a child’s potential for future success,” the law says.

The law requires an “environmental justice impact statement” to accompany every application for a permit to build or expand a facility, or to renew an existing facility permit, in any “overburdened community” in New Jersey.

The law defines an “overburdened community” as any of New Jersey’s 6,320 “census block groups,” as defined by the federal Census Bureau, in which at least 35 percent of households qualify as low-income, or at least 40 percent identify as minority or members of a state-recognized tribal community, or at least 40 percent of households have limited proficiency in the English language. The law defines low-income as any household at or below twice the poverty threshold reported annually by the Census Bureau.

The law requires the state’s Department of Environmental Protection (NJ DEP) to publish a list of overburdened communities on its website, to be updated at least every two years.

The law defines “facility” to mean any “major source of air pollution” as defined in the federal Clean Air Act. Further, the definition explicitly includes garbage incinerators, sludge processors, sewage treatment plants, solid waste transfer stations, large recyclers, scrap metal processors and landfills. Certain medical waste incinerators, including those run by hospitals and universities, are exempt.

The law states that, “it is in the public interest for the State, where appropriate, to limit the future placement and expansion of such facilities in overburdened communities.”

According to the new law, each environmental justice impact statement submitted with a permit application must assess “the potential environmental and public health stressors” associated with the facility. This includes any such stressor “that cannot be avoided if the permit is granted” and “the environmental and public health stressors already borne by the overburdened community as a result of existing conditions located in or affecting the overburdened community.” The law defines “environmental or public health stressors” as “concentrated areas of air pollution, mobile sources of air pollution, contaminated sites, solid waste facilities, recycling facilities, scrap yards, and point sources of water pollution.”

Importantly, the law also defines “environmental or public health stressors” as “conditions that may cause potential public health impacts, including, but not limited to, asthma, cancer, elevated blood lead levels, cardiovascular disease, and developmental problems.” Abundant medical literature indicates that those conditions will be mainly social, in combination with environmental stressors like noise, dust, hazardous chemicals, heat, ozone and diesel fumes. The social determinants of health include jobs and joblessness, income, social exclusion, racial, ethnic and gender equity, early childhood development, housing, access to affordable food, recreational opportunities, transportation, and more.

In sum, an environmental justice impact statement will examine existing chemical, physical and social conditions that affect the public health and the health of the natural world in a burdened community, combined with the additional stressors (if any) that the proposed facility would add on top of what’s already present in the burdened community.

The term for such an evaluation is a “cumulative impacts assessment” of a facility. The federal Council on Environmental Quality issued guidance for “cumulative impacts assessment” in 1997, and the federal Environmental Protection Agency issued related guidance in 2003. The NJ DEP’s Environmental Justice Advisory Council issued its own “Strategies for Addressing Cumulative Impacts in Environmental Justice Communities” in 2009. (Disclosure: I served as an advisor for that report.)

After the environmental justice statement has been handed to the NJ DEP and placed on the department’s website, the applicant for the permit will schedule, advertise 60 days in advance, and then hold a public hearing in the overburdened community, giving all attendees opportunity for “meaningful public participation.” The law does not define meaningful public participation.

After reviewing the environment justice impact assessment, along with comments and all other relevant data, the NJ DEP will make a decision about the requested permit.

The first step in the decision is for the department to determine whether stressors added by the proposed facility, in combination with existing stressors, will cause “or contribute to” stressors “in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit of analysis as determined by the department.” The geographic unit for comparison will be specified in departmental rules or regulations not yet written.

If the permit is for a new facility and the geographic comparison shows that the proposed facility will cause the overburdened community to become more burdened than other communities, then the NJ DEP can outright deny the requested permit. Alternatively, the NJ DEP can declare that the proposed new facility will “serve a compelling public interest in the community where it is to be located” and can then impose conditions on the construction and operation of the new facility “to protect public health.”

Of course, the legislation has its limitations. Because it does not give the NJ DEP authority to outright deny permits for renewal or expansion of existing facilities, and because it does not give residents in an “overburdened community” the authority to deny all such permits by majority vote, it seems very likely that overburdened communities will continue to be somewhat overburdened with pollution until existing polluters choose to cease operations. In addition, the definition of an “overburdened” community highlights income disparities but the law is otherwise silent on that particular social problem. Nevertheless, the law is a very significant step toward realizing the goal of environmental justice laid out in 1991.

In the case of a permit request to expand an existing facility or to renew an existing permit, even if the geographic comparison indicates a problem for the overburdened community, the NJ DEP cannot deny a permit. It can only impose new restrictions on the construction and operation of the facility to “protect public health.”

However, the legislation is a marked step forward on an issue that activists have been pushing to address for decades. It seems apparent that recent nationwide outpouring of support for the Black Lives Matter movement played an important role in convincing the New Jersey legislature to enact this progressive legislation. The New Jersey Environmental Justice Alliance (NJEJA) has been pressing for enactment of a strong environmental justice law for 10 years with tepid support from potential allies and the legislature itself. However, this summer, 165 organizations joined the Ironbound Community Corp in Newark and NJEJA in signing a letter to the New Jersey Assembly urging passage of the new law. Labor, faith, social justice, community and environmental organizations all signed on. It was “an incredibly powerful array of over 165 organizations representing hundreds of thousands of New Jersey residents,” InsiderNJ reported.

In April 2018, Governor Phil Murphy had issued Executive Order 23 requiring the NJ DEP to develop guidance for all executive branch state agencies “for the consideration of Environmental Justice in implementing their statutory and regulatory responsibilities.” The guidance was supposed to be completed by January 18, 2019, but almost 20 months later, the DEP website lists the guidance document as still “pending.” In November 2019, an article on NorthJersey.com pointed out that the governor’s “rhetoric about environmental justice doesn’t always match his actions.” Two days later, NorthJersey.com followed up with an editorial calling on the governor to beef up his “lukewarm approach” to environmental justice.

This summer, the governor staked out a bold position on environmental justice in an op-ed in the Newark Star-Ledger, the state’s largest newspaper. “Our environmental laws fail to provide equal protection under the law,” the op-ed said. “Residents in our urban areas suffer from adverse health conditions at rates many times that of residents elsewhere. The facts on this are clear,” the governor wrote with co-author Catherine McCabe, New Jersey’s commissioner of environmental protection.

For many, the facts on this had been clear since at least 1987, when Benjamin Chavis and Charles Lee published “Toxic Waste and Race in the United States,” revealing that hazardous waste materials of all kinds were disproportionately being dumped near homes, schools and workplaces in communities of color, affecting children as well as their parents and grandparents. But it took the bold activism and persistence of Black Lives Matter and its staunch allies like NJEJA to bring things to a boil and get this far-reaching legislation done. Now that New Jersey has broken this ground, other states can follow. Environmental injustice is visible everywhere, if we look.