Industrial toxins are often disproportionately concentrated in underserved communities. To protect these communities from having to shoulder even more industrial activity, New Jersey adopted the Environmental Justice (EJ) Law in 2020 and adopted an underlying set of EJ Rules in April 2023. In January, despite objections from business and industry, the NJ Appellate Court upheld the EJ Rules.
Activists, who fought long and hard, are pleased with the ruling. The EJ Law, among other things, allows overburdened communities to weigh in on industrial permitting processes that affect them. Activists vow to continue to seek to increase public input in NJ Department of Environmental Protection (DEP) decisions.
The ruling “ensures that … economics cannot continue being used as an excuse to pollute already overburdened communities,” said Alejandra Torres, assistant director of advocacy and organizing for the Ironbound Community Corporation in Newark. Rates of asthma in Newark are four times the national average, owing to ambient pollution.
“We will continue to hold polluting industries—such as incinerators and power plants—accountable,” she said.
The EJ Law and the EJ Rules (governing industrial facilities, data requirements, public hearings, permit evaluation, etc.) provide protections for communities with higher rates of poverty, sizeable minority populations, or limited English proficiency.
Under the EJ Law, the DEP must evaluate the cumulative impacts or public health stressors on overburdened communities, and it may deny permits if an activity would worsen the impact, unless there is a compelling public interest. Further, permit renewals may be used as opportunities for the DEP to require stiffer emissions controls, among other improvements.
“The Appellate Division affirmed that DEP must finally protect frontline communities, their homes, health, and natural resources, instead of continuing the practice of allowing these communities to be sacrifice zones for industrial ventures,” said Casandia Bellevue, senior associate attorney with Earthjustice.
However, in practice, the law has not given overburdened communities the traction they expected to have.
For example, even after the EJ Law was enacted, the bleach-maker Kuehne Co., of Kearny, claimed in an ongoing application for permit renewal that it could not find ways to support emissions reductions and decrease its contribution to negative environmental and public health impacts, the NJ Environmental Justice Alliance said.
The NJEJA believes that Kuehne could reduce pollution by using electric boilers to replace natural gas/hydrogen-fired boilers, battery storage to replace diesel generators, and electric trucks to replace those powered by diesel.
Under the EJ Law, companies have held public engagement activities as required, but some activists say these have seemed like a formality.
“The DEP takes the [permit applicant’s] recommendations but is not incorporating proposals from public comments,“ Bellevue said. “The DEP has not been applying the law or rule in the most protective manner.”
Although the EJ Law allows permit approvals in cases where the incremental burden on a community is superseded by a “compelling public interest,” Torres says it’s not clear how the DEP defines a compelling public interest. “The DEP needs to do its job setting clear conditions,” she said.
More work must be done to protect members of EJ communities. “As we use the EJ Law to protect overburdened communities and monitor its implementation, we are also able to assess the work that needs to be done to enshrine the spirit of the EJ Law,” Torres said.
Still, the Appellate Court ruling maintains a vital tool that communities can use to improve public health as industries renew their permits.
The Appellate Court decision removes one of many obstacles that have hindered environmental justice communities from having their voices heard when potential polluting projects come into their neighborhoods. The EJ Law will allow environmental justice communities to move forward with direction and intention. Although the EJ Law may be opposed by industry, it does provide some assurances that things will not operate as they once did.
Overburdened communities, leaders, and advocates must still be watchdogs to ensure that the regulations and processes outlined in the law are being handled correctly. Is the EJ Law perfect? No! But it is a start. This is an opportunity for us to collectively combine our efforts in advocating for more and better legislation that will fill in the gaps.
It is also an opportunity for businesses to reach across the aisle and work with environmental justice communities to address their needs. Advancements in cleaner technology are happening rapidly, and companies should invest in that technology to protect the communities in which they operate.